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October 29, 1997


The opinion of the court was delivered by: SOTOMAYOR

 On August 13, 1997, this Court issued an Opinion and Order dismissing plaintiffs' Complaint, and rejecting the contention that the defendant publishers and electronic service providers had committed copyright infringement by making plaintiffs' freelance articles available in various electronic formats. Tasini v. New York Times Co., 972 F. Supp. 804, 807-808, 1997 WL 466520, *3 (S.D.N.Y. 1997). As the basis for its ruling, the Court applied Section 201(c) of the Copyright Act and determined that defendants had properly republished plaintiffs' individual freelance articles as part of electronic "revisions" of the newspapers and periodicals in which those articles first appeared. 17 U.S.C. § 201(c).

 On September 3, 1997, plaintiffs filed a motion for reconsideration, raising a number of objections to the Court's approach in its Opinion and Order. First, plaintiffs argue that the Court should have ruled for Whitford, one of the complaining freelance authors, upon rejecting Time Inc.'s claim that it had acquired electronic rights in one of Whitford's articles pursuant to contract. Second, plaintiffs argue that, even accepting the Court's interpretation of Section 201(c), there is a disputed question of fact as to whether any of the electronic technologies involved in this case qualify as permissible revisions. Finally, plaintiffs contend that the Court mistakenly accepted defendants' representations that plaintiffs had failed to raise an infringement claim relating to certain article abstracts created in connection with one of the disputed technologies, "General Periodicals OnDisc."

 For the reasons discussed below, the Court rejects plaintiffs' motion, and declines to reverse any portion of its earlier decision. *fn1"


 I. Plaintiff Whitford's Contract Claim

 Having found that Time Inc. failed to acquire electronic rights in Whitford's article pursuant to its selected contract provision, the Court considered whether Time Inc. -- along with those defendants who had not entered into enforceable contracts concerning rights in the disputed articles -- had nevertheless obtained those rights by statute. Ultimately, the Court determined that they had. All of the defendants had acted within the scope of their "privileges," under Section 201(c) of the Copyright Act of 1976, by creating electronic "revisions" of their collective works. *fn2"

 In their present motion, plaintiffs argue that the Court should have held in Whitford's favor directly upon rejecting Time Inc.'s contract claim. The Section 201(c) privileges, plaintiffs contend, "apply only 'in the absence of an express transfer of the copyright or of any rights under it . . .'" (Memo Recon. at 2 (quoting Section 201(c)).) Because there was an express transfer between Whitford and Time, Inc. -- and because defendants failed to show that this transfer reaches NEXIS -- plaintiffs contend the Section 201(c) privileges simply do not apply in favor of Time Inc. Thus, plaintiffs insist that the Court should have extended the specified statutory privileges only to the remaining defendants, none of whom had entered into any binding agreements concerning rights in the disputed articles.

 A. The Court's Contract Holding

 Plaintiffs' argument has considerable appeal, but it depends upon a misstatement of the Court's August 13 ruling. The Court did not, as plaintiffs suppose, find that "Whitford did not expressly transfer electronic rights in his article." (Memo. Recon. at 4.) Rather, the Court found that the particular contract provision invoked by Time Inc. -- the provision extending "first" publication rights to the publisher -- did not authorize the electronic republication of Whitford's article. Because only Time Inc. invoked its contract with Whitford, and because Time Inc. invoked only this provision, the Court was not in a position to announce any broader conclusion concerning the extent to which the remainder of the agreement did or did not reach questions of electronic republication.

 The Court noted, however, in its August 13 Opinion, that at least two provisions in the contract between Time Inc. and Whitford potentially encompass rights extending as far as NEXIS. Tasini, 972 F. Supp. at 811 n.4, 1997 WL 466520, at 7 n.4. One provision, in particular, grants Time Inc. the following right in Whitford's article:

(c) the right to republish the Story or any portions thereof in or in connection with the Magazine or in other publications published by Time Inc. Magazine Company, its parents, subsidiaries or affiliates, provided that you shall be paid the then prevailing rates of the publication in which the Story is republished.

 Tasini, 972 F. Supp. at 807, 1997 WL 466520, at *3 (emphasis added). This provision, with its broad "in connection with" language, appears explicitly to authorize the republication of Whitford's article as part of a revised version of defendant's magazine, as appears on NEXIS, provided that Whitford is paid at "prevailing rates." Recognizing this possibility, the Court deemed it significant that plaintiffs neither raised a breach of contract claim in their complaint or in their briefs before the Court, nor presented any persuasive explanation as to why the provision did not -- despite its seeming breadth -- govern Time Inc.'s republication on NEXIS. *fn3" Tasini, 972 F. Supp. at 811, 1997 WL 466520, at 7 n. 4. The Court was thereby left in the unusual position of dealing with a situation likely governed by contract, while dealing with a plaintiff determined to press a claim only of infringement.

 By taking the unconvincing all or nothing stance that its contract with Time Inc. in no way implicated electronic rights, and by declining to press a breach of contract claim, Whitford framed its arguments in such a way that the Court could not make any conclusive determination as to whether Time Inc. had in fact exceeded the full extent of its rights under the contract. The Court was able only to determine that Time Inc. had gone beyond the isolated "first" publication right that it had invoked. Because of the remaining contract questions left ...

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