In a June 25, 2001, 7-2 decision, (1) the United States Supreme Court struck down a long-standing misinterpretation of the copyright laws as applied to collective works. This new interpretation represents a potentially colossal financial windfall for freelance authors, while throwing a time consuming and costly wrench into the gears of the multi-million dollar business that is on-line periodical storage and retrieval. (2)
The Supreme Court held that the New York Times Company and several other print periodical publishers, including Newsday, Inc. and Time, Inc., (3) had infringed upon a litany of the exclusive rights (4) of the respondent authors by reproducing and distributing the authors. works in electronic storage databases--an action neither authorized nor privileged by any provision of the Copyright Act of 1976. (5) In reaching this conclusion, the Supreme Court drastically recast the mold that, for decades, had steered an entire industry's interpretation of section 201(c) of the Copyright Act and the boundaries of ownership rights in collective works. Of more importance, however, is the fear that the Supreme Court may have inadvertently "punch[ed] gaping holes in the electronic record of history." (6)
II. FACTUAL BACKGROUND
Between 1990 and 1993, a group of six freelance authors, including the named respondent, Jonathan Tasini, wrote a total of twenty-one articles that became the epicenter of this dispute. (7) All of the authors worked as independent freelancers with no formal, structured contracts securing the placement of these disputed articles in any electronic database. (8) Following publication of these articles in the traditional print medium, the three publishing entities converted the articles to electronic format and delivered the converted material to three providers of electronic print material: LexisNexis (Lexis), the New York Times OnDisc (NYTO) and General Periodicals OnDisc (GPO). (9)
In the case of Lexis, a third-party user can conduct a search of the Lexis electronic database using criteria such as author, subject, date, publication, headlines, or key terms. (10) Following a search of the database, Lexis provides a list of numerous articles that match certain combinations of the aforementioned search criteria; the user can then retrieve the desired articles. "Each article appears as a separate, isolated 'story'--without any visible link to the other stories originally published in the same newspaper or magazine edition." (11) Articles retrieved from the Lexis database are entirely textual in nature and do not contain pictures or advertisements that may have accompanied the content in the print original nor do they "reproduce the original print publication's formatting features such as headline size, page placement ... or location of continuation pages." (12)
The NYTO, to which the New York Times Company also licensed its newspaper content, works in a similar manner. Articles appear in the NYTO electronic database "in essentially the same way they appear in [Lexis], i.e., with identifying information (author, title, etc.), but without original formatting or accompanying images." (13) Unlike Lexis, however, the NYTO contains only content from The New York Times (The Times), whereas Lexis contains content not only from The Times, but also from other publications throughout the world.
The third and final database, GPO, differs slightly in its operation from Lexis and NYTO. A user accessing GPO can find content from approximately 200 different publications; the database is image-based, however, as opposed to the text-based systems of NYTO and Lexis. (14) While the manner of searching the GPO is almost identical, the retrieved product is a visually perceptible burned image of any particular article. An article retrieved using GPO is displayed "exactly as it appeared on printed pages, complete with photographs, captions, advertisements, and other surrounding materials. …