Tuesday, July 01, 2008

Most boring post *ever*

This post is coming straight at you from the en banc 11th Circuit. I know, I know -- b-o-r-i-n-g.

1. First up is United States v. Svete. The Court agreed to hear the case en banc. This is going to be followed by all prosecutors and defense lawyers. The panel decision reversed a mail fraud conviction because, the court held, mail and wire fraud offenses do not encompass schemes which are not calculated to deceive a reasonably prudent person. The Court will address whether mail fraud (and related offenses) encompass schemes which are not calculated to deceive a reasonably prudent person? Get fired up baby!

2. Next is Jerry Greenberg v. National Geographic Society. No, not that Jerry Greenberg. This Jerry Greenberg. Can National Geographic reproduce (on a CD set) old magazines with Greenberg's pictures without his permission?

Judge Barkett wrote the majority opinion, which starts out this way:

Appellant National Geographic Society is a nonprofit scientific and educational organization that has published a monthly magazine since 1888.2 The Society also produces televised programs and computer software as well as other educational products through National Geographic Enterprises, a wholly-owned and for-profit subsidiary of the Society. Appellee Jerry Greenberg is a freelance photographer, some of whose photographs were published in four issues of the National Geographic Magazine. For decades, the Society has reproduced back issues of the Magazine in bound volumes, microfiche, and microfilm. In 1997, National Geographic produced “The Complete National Geographic” (“CNG”), a thirty-disc CD-ROM4
set containing each monthly issue of the Magazine, as it was originally published, for the 108 years from 1888 through 1996—roughly 1200 issues of the Magazine. In addition, the CNG includes a short opening montage and a computer program that allows users to search the CNG, zoom into particular pages, and print. Greenberg sued National Geographic, alleging that it had infringed his copyrights by reproducing in the CNG the print magazine issues that included his photographs. The district court disagreed and granted summary judgment in favor of National Geographic, holding that because the CNG constituted a “revision” of
the print issues of the Magazine, the reproduction of Greenberg’s photographs in the CNG was privileged under 17 U.S.C. § 201(c) of the Copyright Act and did not constitute an infringement of Greenberg’s copyrights. However, a panel of this Court in Greenberg v. National Geographic Society (Greenberg I), 244 F.3d 1267, 1275–76 (11th Cir. 2001), reversed and remanded for the district court to “ascertain the amount of damages and attorneys fees that are, if any, due as well as any injunctive relief that may be appropriate.” After a jury trial on damages, the jury returned a verdict against National Geographic in the amount of $400,000.
National Geographic appealed again, this time arguing that the intervening
decision of the U.S. Supreme Court in New York Times Co. v. Tasini, 533 U.S. 483 (2001), decided after Greenberg I, mandated a reversal of the jury verdict against it. A second panel of this Court agreed, finding that Tasini compelled a reversal of the jury verdict because, under Tasini’s rationale, National Geographic was privileged to reproduce its print magazines in digital format pursuant to § 201(c) of the Copyright Act. See Greenberg v. Nat’l Geographic Soc’y
(Greenberg II), 488 F.3d 1331 (11th Cir. 2007).5 This Court then vacated the Greenberg II panel opinion and granted rehearing en banc to address the question of whether National Geographic’s use of Greenberg’s photographs in the CNG is privileged.

The conclusion:

In the light of the Supreme Court’s holding in Tasini that the bedrock of any § 201(c) analysis is contextual fidelity to the original print publication as presented to, and perceivable by, the users of the revised version of the original publication, we agree with the Second Circuit in Faulkner and find that National Geographic is privileged to reproduce and distribute the CNG under the “revision” prong of § 201(c).

The CNG—albeit in a different medium than print or microform—is a permissible reproduction of the National Geographic Magazine. Greenberg’s photographs are preserved intact in the CNG and can only be viewed as part of the original collective works in which they appeared. Similar to the microforms of Tasini, which preserve the context of multiple issues of magazines, the CNG’s digital CD-ROMs faithfully preserve the original context of National Geographic’s print issues. The CNG’s additional elements—such as its search function, its
indexes, its zoom function, and the introductory sequence—do not deprive National Geographic of its § 201(c) privilege in that they do not destroy the original context of the collective work in which Greenberg’s photographs appear.21 We REVERSE and REMAND to the district court for proceedings consistent with this opinion.


Anonymous said...

I'm in the minority on this, I found this case to be interesting and not b-o-r-i-n-g. Thanks for posting it Davey-boy!

Miguel M. de la O said...

My great respect for Judge Barkett notwithstanding, I enjoyed greatly how Judge Birch's dissent quickly got to the heart of the dispute:

Putting aside the legal analysis or rationales in play in this case, the reader should understand the pecuniary or commercial positions of the parties and their constituencies in this dispute. On one side there are the artists, authors, and other creators of copyrightable works who argue that their creative contributions to collective works already exploited by publishers should not be further exploited by those publishers without sharing the profits realized by that further commercial exploitation. . . . On the opposite side, the publishers are seeking to generate new revenues by repackaging an old product — the “old wine in new bottles” paradigm; updated in this instance with an easier access twist-off metal cap rather than a cork. Here the new packaging of the old content, replicated but unrevised, in electronic medium is both cost-efficient, profitable, and attractive to a new, computer-savvy generation of consumers. Moreover, the profits are enhanced exponentially when the publisher can exclude the contributing artists, authors, and creators of the content from sharing in those profits. At the end of the day this case is not about education, access by the masses, or efficient storage and preservation — it is about who gets the money.

As I'm sure you recognize, Greenberg v. National Geographic is a very important case. At some point, the Supreme Court will likely settle the issue.

South Florida Lawyers said...

I agree with Miguel. BTW, poor Norm Davis has been handling this case for something like 20 years.

Anonymous said...

Don't se1l yourself short. This is only your 20th most boringp post.

Anonymous said...

David, my feelings are very hurt by your comment re: Item (1).