Legal experts differ over the import of the Supreme Court's decision not to hear the case. Some consider the appellate court ruling to have limited effect in very specific circumstances. Most consider it an expansion of the earlier Tasini case that granted rights to freelance writers. (See the June 28, 2001 NewsBreak at http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=17563) At its broadest, the decision could have a chilling effect on all kinds of digitization projects, whether by publishers, database aggregators, or library consortia.

The original suit focused on a $99.95 30-disc CD-ROM set that included digitized versions of all the issues of National Geographic magazine from 1888 to 1996. Urging the Supreme Court to overturn the federal appeals court decision, the National Geographic Society argued that the lower court decision would "prevent publishers … from creating and preserving electronic archives for the benefit of history and unknown generations of individuals, students, and scholars." It pointed out that print versions of the same content would take up a whole room and the microfilm versions cost libraries and individuals some $37,000. The publisher also stated it could not possibly find all the freelancers—writers or photographers—whose work appeared in all the issues. In amicus curiae briefs, publisher organizations argued that the appellate court's decision against National Geographic created "serious confusion regarding all electronic republications and nearly all revisions and updates of publishers' collective works."

The case now goes back to the lower court for damage decisions on how much the National Geographic Society owes Jerry Greenberg for pictures produced in four of the 1,200 issues on the CD-ROM extending from 1962 to 1990. One of Greenberg's pictures—a cover for the January 1962 edition—also appeared as part of a short montage of moving magazine covers. Greenberg's advocates argued that the new, enhanced CD-ROM product with music, advertisements, and the addition of original material constituted a new publication and required a new payment.

The National Geographic Society claimed that the CD-ROM set was a complete collection with no significant changes in content, format, or appearance from the printed magazines beyond the digitization and, as such, was as protected as microfilm. (The Supreme Court had exempted microfilm from the Tasini decision's impact.) The fact that the National Geographic Society had applied for and received a copyright for the CD-ROM, claiming it as a new work, figured prominently in the 11th Circuit Court of Appeals' opinion written by Judge Stanley Birch (http://www.ca11.uscourts.gov/opinions.htm; March 2001 00-10510.opm).

Unlike the Tasini case in which the American Library Association (ALA) filed an amicus curiae brief on behalf of the freelancers, in this case the ALA and other professional librarian associations—the Association of Research Libraries (ARL), American Association of Law Libraries (AALL), and Medical Library Association (MLA)—filed a brief supporting the publisher (http://www.arl.org/info/frm/copy/greenberg.html). They contended that the 11th Circuit Court's decision, if left to stand, would "have adverse effects on the library community and users of collective work." In particular, they pointed to the negative effect on digitization efforts:

If this decision stands, it would inhibit the dissemination of collective works via digital and electronic media that involve combining digital facsimiles of complete collective works with software that enables a user to perceive them. This would thwart broader public availability not only of popular works like those of Petitioner National Geographic Society, but also less widely accessible periodicals. Digital and electronic media also have functionality that exceeds traditional analog media as well as the potential for greater utility in the future as archival and preservation media. This ruling stymies the adoption and evolution of such useful technologies.

Parkhurst regretted that the court didn't consider the Greenberg v. National Geographic case as perfect for facing up to the issues of new technology. The ALA et al. brief also stated: "It may be unusual for the Court to face multiple calls, in such quick succession, to construe a seemingly arcane provision of the Copyright Act. However, amici believe that the practical consequences of the Eleventh Circuit's decision may be even more far-reaching than the decision in Tasini in terms of the impact on the public availability of copyrighted works and the development of new media collections."

The National Writers Union (NWU) saluted the Supreme Court's decision in a press release. Jonathan Tasini, president of the NWU, said: "Once again, the legal system has come down in favor of the individual creators' rights in the digital age. We can only hope that media companies will now see that it is time to end their legal delays and sit down to negotiate meaningful solutions to the widespread infringement they are guilty of."

Unlike some of the cases connected now to the Tasini case, the Greenberg v. National Geographic case is not a class-action suit. Parkhurst commented: "There's a better chance for a final solution with class-action cases. Without that, you can create ‘piecemeal legislation.' Everybody waits and then one case follows another, creating a ‘blossoming effect.'" Already National Geographic reports that it's involved in three more similar lawsuits from other photographers.

Several class-action suits are currently underway by freelance authors against digital use by publishers and information industry firms: Posner, et al., v. Gale Group, Inc., et al.; Authors Guild, Inc., et al. v. Dialog Corp., et al.; etc. One information industry executive said he actually hoped that a final resolution might emerge from the round of Tasini class-action suits. Database aggregators have already started removing material. Although at present it's only a trickle, one industry executive figured that hundreds of publishers were still sitting it out, waiting for the damage phase of Tasini and similar cases. The same executive considered that the effect of the Greenberg v. National Geographic case would be wrapped into the Tasini changes. He considered the effect "serious, but not dire." On the other hand, he admitted that digitization projects could face extensive challenges.

One distinction makes this case's challenge to digitization projects seem even more serious than the writers' case. If publishers or database aggregators did decide to take on the task of chasing down every author for permission, they could use bibliographic citations from indexes or even tables of contents to do so. But most indexes do not even indicate the presence of photographs, much less the names and affiliations of the photographers. If automated scanning projects had to verify the intellectual property of each and every image in a periodical, for example, production costs would spiral.

Such is life in a post-Tasini world. Are we having fun yet?