Warren E. Burger: Mr. Lettow, you may resume.
Charles F. Lettow: Mr. Chief Justice, and may it please the Court. Regarding both the exposure and the research evidence grounds that the Fifth Circuit had for its decision to set aside the dermal contact prohibition, we have nothing further, really, to add to the points that they put forward in response to the action by OSHA, except for one thing. In its reply brief in this Court, OSHA makes reference to a 1976 publication by the American Conference of Governmental Industrial Hygienists. That's the group that set up the consensus standard that provides the 10 parts per million level that's now in effect. And it says, in 1976, that ACGIH put forward a skin notation for benzene. I just want to call the Court's attention to the fact that -- and only because it's in the government's reply brief -- that for two years now, '78 and '79, the ACGIH has no skin notation for benzene. It's absent. They just focus on the airborne hazard. The one other issue of statutory construction that arises with respect to the research evidence ground is that what is best available evidence? The Court can find a definition for best available evidence fairly easily by just going to Webster's Third New International Dictionary, and that says "available" means that which is accessible or may be obtained. And indeed one of the examples that the dictionary uses for that type of usage is "the latest readily available information". Now, "readily available" is actually what the Court of Appeals used as it was defining that term. And that is fairly easily explained also by what Congress did, because the second and third sentences of 6(b)(5), section 6(b)(5), were actually taken from -- or the terms of them, the words were taken from the research provisions of the bill that was enacted. The research provisions were there first. And the research provisions in section 20(a), especially 20(a) (3), make a reference to research, demonstrations, and experiments. That's where that language comes from. So they knew what they were talking about. They knew that OSHA had to do some research in order to be able to come up with standards under some instances.
Byron R. White: Earlier in your argument, Mr. Lettow, you suggested that if this standard prevails, that the tire industry just won't make the grade, that it will shut down. Did I understand you right or not?
Charles F. Lettow: Your Honor, --
Byron R. White: You made some remark --
Charles F. Lettow: Yes, I did.
Byron R. White: -- a pretty strong remark, and your colleague on the other side indicates that it must be feasible and that the Secretary should not just close down an industry.
Charles F. Lettow: The issue of feasibility is one that we have argued strongly in the Court of Appeals. But because they didn't decide it, they said that was the issue that was most affected by the amendment to the standard that came at the eve of oral argument, literally on the eve, the afternoon before. We argued that issue in supplemental brief to the Court of Appeals. But because it didn't decide it, it hasn't been briefed here.
Byron R. White: Well, it's open then?
Charles F. Lettow: It is open and --
Byron R. White: And if you're right, you'll win. If you're right, you'll win.
Charles F. Lettow: That's right. But you can understand why we didn't brief it here, because the Court of Appeals didn't decide it.
Byron R. White: I understand, but -- the Court of Appeals didn't decide it, so that issue is still open.
Charles F. Lettow: Yes, sir, it is still open. And it is referred to in the OSHA reply brief, and of course we disagree with them, and if you're interested in that subject we would suggest going back to the briefs on the merits in the Fifth Circuit.
Byron R. White: Well, I take it the Secretary must believe that the standard is feasible. Or do you think the Secretary doesn't support the view of your colleague that he should not close down an industry?
Charles F. Lettow: Well, Mr. Justice White, the Secretary, that is OSHA, does make a reference to the fact that in the tire industry you need skin contact, you need dermal contact with solvents. They have put forward, and the basis for the feasibility claim is now based on the percentage exclusion to the standard, whether or not that's sufficient in terms of these solvents. That is what is actually briefed.
Byron R. White: Well, if the feasibility issue would have to be remanded, would it be remanded to the Court of Appeals or to OSHA?
Charles F. Lettow: Your Honor, I honestly don't think that it ever left the Fifth Circuit. When you granted certiorari you didn't get to that issue, and I guess the question you would have in your action in this Court is whether or not you would agree with the Fifth Circuit on the two grounds they adopted, if you did or did not it would go back to the Fifth Circuit. If the Fifth Circuit had -- well, the Fifth Circuit would decide the feasibility question and then it would or would not go back to OSHA.
Byron R. White: Well, if you were right and it was not feasible, and that meant the standard was not valid, it would certainly save us an awful lot of work.
Charles F. Lettow: Yes, Your Honor, it would. Thank you.
Warren E. Burger: Thank you, gentlemen. The case is submitted.


Earl Warren: Number 529, Marie De Sylva versus Marie Ballentine. Mr. Kiendl.
Theodore Kiendl: May it please the Court. This case is here on certiorari to review a decision of the Court of Appeals of the Ninth Circuit that involved the construction of the renewal of Sections of the Federal Copyright Act. The opinion below was by Circuit Judge Stephens. It was concurred in by Circuit Judge Chambers and there was a dissenting opinion by Circuit Judge Fee. We should point out immediately that the dissenting opinion of Circuit Judge Fee went off on a jurisdictional ground which is not being raised or presented to this Court in connection with this appeal. The action was brought in the United States District Court for the Southern District of California in the central division by the guardian ad litem of the estate of the infant and illegitimate son of the late George De Sylva. The action was brought against his widow and the action was one for a declaratory judgment in which this infant through his guardian ad litem attempted to get a declaration of his rights under the renewal section of the Copyright Law and an accounting from the widow of George De Sylvia where the moneys and benefits and advantages that she derived from renewing the copyrights herself. The facts were all -- either stipulated or undisputed and they were, I can recite them fairly briefly, substantially these. George De Silva was a prolific and a very outstanding songwriter, a writer of popular music with such famous individuals as Jerome Kern and George Gershwin and others. He had collaborated during a long period of time, most of -- this half of the 20th century, in producing a number of very popular song hits. The list of most of them is contained in one of the briefs in this case. I only mentioned two that probably some members of this Court are familiar with. One song was "California Here I Come" another was "April Showers" and songs of that general character were in the portfolio that this particular individual was the author of or collaborated with others and being the author of. During the last 28 years of his life, he had copyrighted a great many of this song hits. He died in the year 1950 and he left him surviving this widow who obtained renewals on the copyrights as he came to be eligible for renewal and of course many more of them will become illegible for renewal from now on until the year 1978, 28 years after his death. He also left him surviving an infant son. A son born out of wedlock but the son whose paternity, the late George Sylva acknowledged during his lifetime. And the son came in and on the proposition that under the provisions of the Copyright Act he had equal rights with the widow. He sued for this declaratory judgment and in accounting of the proceeds of what the widow would obtain through which of these renewals. The case came on in the District Court but was not tried. It was disposed of on motion. Both sides made a motion for a summary judgment and on this, what we say here was substantially agreed statements of fact. The District Court, the District Judge decided the case in favor of the widow. There was no opinion in the District Court but there were findings of fact and conclusions of law which appear here in the transcript of record. And the substance in effect of them were that the widow was the sole and exclusive owner of those renewal rights that became illegible for renewal during her lifetime and that the infant son was not entitled to any accounting, whatsoever. However, we should call the Court's attention to the fact that the District Judge did hold that the son, the illegitimate son was a child of George De Sylva within the meaning of the provisions of the Copyright Law.
Speaker: (Inaudible)
Theodore Kiendl: I don't know how it came to reach it, Your Honor, but he reached it and exist -- contained in the findings of fact, one of the findings of fact in the record, I can take the time to point it out of -- it's in there.
Speaker: (Inaudible)
Theodore Kiendl: Well, he decided both questions, one definitely on our favor and gave us summary judgement, the other definitely against the son as other proposition. Now, when judgment was ended in favor of the defendant, the petitioner in this case, the plaintiff, guardian ad litem took an appeal and the defendant widow cross-appealed, cross-appealed from the conclusion of law. I think it's -- the conclusion of law is number two. I have a note of it here, on page 32 of the transcript of record which said that the infant was a child within the meaning of the Copyright Law and both appeals came on to be heard before the Court of Appeals in the Ninth Circuit.
Felix Frankfurter: In the end case whether in deciding that he was the child within the meaning of the Copyright Law, a child in the Copyright Law should be given a definition as such or whether he was child because local laws applied in that with California law. That indicates that it's different.
Theodore Kiendl: All that he said, Your Honor please, is left contained in the conclusion of law which appears on page 32, number two, that Stephen William Ballentine, that's the child, is a child of George G. De Sylva, deceased, within the meaning of the statutes of the United States relating to copyrights. It says nothing else in the record anywhere to indicate anything to the contrary. Now, in the Court of Appeals, the decision of the District Court, the judgment of the District Court was reversed and the conclusion of law from which the defendant widow appeals was affirmed. So that the judgment of the court below went against us on both grounds. We then applied for and obtained this certiorari. Now, it is the position of the petitioner here, the defendant widow below, that the answers to the two questions that came up before the Court of Appeals were -- and decided by the Court of Appeals that those answers were wrong. That the judgment of the District Court was right and that it should be reinstated. In the opinion of Judge Stephens, it took this form. He posed and he answered two specific questions. The first question appears at page 49 of the record and as it -- they're both very short. May I read them? The first question, at page 49 in the middle of the page, is the widow in a class with a child. Judge Stephens proceeds to discuss that question and comes to the conclusion that it should be answered in the affirmative, putting the widow in the same class with the child. He then propounds opposers to the second question at page 56 of the record. In the middle of the page, the question is there set forth as a heading, is the illegitimate child excluded from all rights under the renewal privileges of the Copyright Act? And after discussing that question, Judge Stephens reached the conclusion that it should be answered in the negative so that the illegitimate child was not excluded by that Court from the rights from renewal privileges under the Copyright Act. Now, we come at once to the precise and exact language of the statute itself. The statute in Section 24 of the Copyright Law and for convenience we have put it in as an appendix to -- to our brief and it appears at page 21 of our brief. It's headed Section 24, duration, renewal and extension and it provides in the first part that the copyright should endure for 28 years. And then it further provides, and this is the vitally important provision of the Act. It must be construed in this case. It provides down toward the bottom part of the page that the author of such work, if still living or the widow, widower or children of the author if the author be not living or if such author, widow, widower or children be not living then the author's executors or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright for a further period of 28 years. Now, as we read that language segregating it entirely from any of the familiar aids to statutory construction and taking the words just as they appear to find out what Congress actually said. We think those words are susceptible of only three possible constructions. One, that we advance and that we think is sound and two others that we reject. The first one is taking the language and the principal language, of course, is widow, widower or children. We take that language in what we call the "alternative sense. "Giving to the word "or" its alternative dictionary meaning, either the widow or the children, one or the other but not both. And if we consider that possible construction of the language, it seems to us it comes to the ridiculous conclusion that Congress has left it suspended in midair as to what was going to determine which one of the two would take if both didn't take. And that construction is not adopted by either party to this appeal and we submit is unsound and should not be adopted. The second sense, the second possible construction of the language and the one that we here urge upon this Court is construing the words "or children" in the substitutionary sense in the sense that dictionaries define the word "or" in most instances. If there'd be no widow, then in that event the children are substituted in our place and we rely for that construction -- pardon me, I have slight cold. We rely for that construction on a line of cases involving the law of wills, testamentary transfers of property by will where a testator leaves his property either real or personal property to a named individual or his child. And these various cases the we have cited in our brief there, I think, there are eight of them, all hold that in that situation the child only takes in substitution for the named individual if a named individual be not alive at the time of the death of the testator. But the plaintiffs here, the respondent in this case, the guardian ad litem claims that that situation is wholly inapplicable to the disposition of this contention for the reason that those cases involved only testamentary transfers. They don't involved a copyright law. They referred to the law of inheritance from the law of succession and consequently, have no application here but we don't quite see the reasoning behind that. It seems to us, if the language is susceptible of that construction under a will it would be susceptible of that construction under the Copyright Law. And we think those cases are clearly analogous to a situation here presented. And we want to call the Court's specific attention to one rather interesting case that were found by -- not counsel for the petitioners, by one of the counsel for -- one of the friends of the Court and that is the Cutting case, Cutting v. Cutting, a rather old case decided in 1881 in the District Court of Oregon. And it's referred to in the brief, trial by the Motion Picture Association in this case as amicus at page 7. That case involved the construction of a provision of the Donation Act, the Federal Donation Act where the donees where married persons and it contained this provision and I read just a sentence from page 7 of their brief." And either shall have died before the patent issue. The survivor and children or heirs of the deceased shall be entitled to the share or interest of the deceased in equal proportions." There was a case where the federal statute used both the word "and" and the word "or," both the conjunctive and the disjunctive. And in interpreting the language in that case, the District Court of Oregon, I think, it was then the Circuit Court decided that the words "the heirs" would have to be construed as meaning that the heirs could only take in the form of children. The Act substitutes then for children in case there are no children. That decision we think is quite apposite to the situation that we are contending for. Now, the third possible construction is the one that the plaintiff, respondent contends for. They say that the words "widow" or children mean in substance widow and children that the word "or" is both conjunctive and disjunctive. And that we submit purely from the standpoint of the literal language of the statute that injects into the statute something that is not there. But if we leave this strict language of the statute and go to those age which enabled courts to construe and interpret the provisions of federal statute. We come first to the question as to what was the purpose, what was the object of this particular statute. Now, of course we all know in its fundamental that the Copyright Act was the exercise by Congress of the power committed to it, specifically by Section 8 of Article 1 of the Constitution which provides that Congress should have power to promote the progress of science and the useful arts by securing for a limited time to authors the exclusive right to their writing. And if that Constitution provision indicates, as we think it does, that the purpose of the objective of the Copyright Act was to provide additional benefits for the authors of these writings then we submit that the contention and interpretation advanced by the respondent here is untenable and would defeat the very purpose of the Act. For it -- it seems to us it must be obvious that if we're going to put any value into the writings of an author that value is determined by the marketability of his product. What can you sell it for? How much will the market pay for it? And if the prospective purchaser is unable to acquire a good and sufficient title, if there be any cloud on that title, the value of the writing depreciates and diminishes and in some instance might vanish entirely. And if the prospective purchaser of the moving picture rights of a play or the perspective purchaser of a musical competition -- a composition has got to deal with all these people in order to get good and sufficient title, we submit he will refuse to negotiate or bargain it all. Must he go and find the widow of the songwriter and the legitimate children of the songwriter? And must he exhaust the possibility of there being any illegitimate children in order to acquire the kind of a title that he needs with the exclusivity that is so essential to the production of a motion picture play or to the production of music? Of course, he is not going to do that. And we say that means that the value of the word is seriously depreciated. There is a case cited in the brief for the Motion Picture Association again in this case which I think I should call to the Court's attention and we call it to the Court's intention not -- attention not because we are familiar with the facts but as a sort of a hypothetical situation. There's a play on Broadway that is a tremendous success. It was produced by an American playwright but it was based on a following play by a foreign author. The one of the great motion picture companies were interested in acquiring the motion picture rights to that play. And negotiations had continued to the point where there were some suggestion of the payment of something over a half million dollars for the motion picture rights of that play when suddenly the Court of Appeals in the Ninth Circuit decided this case. And the prospective purchase there forewarned by the decision for which we are appealing, went to the trouble as a prudent businessman, tried to ascertain what was the true situation. And the situation that developed reputedly was that the foreign author of the play had children. He had twice as many reputedly, illegitimate children that were known and there were some indication that there were unknown illegitimate children that could not be located. In that situation, the negotiations evaporated and the American playwright of that play, at least for the time being, was deprived of a very substantial sum of money.
Speaker: I would suppose the thrust of that argument would lose some weight if children is -- held to exclude the illegitimates.
Theodore Kiendl: That is correct, sir. But it is in the light of the decision of the court below that children included to the --
Speaker: Illegitimate.
Theodore Kiendl: -- illegitimate and that took place. So that we say, judging this by the purpose of the statute desired to accomplish. The construction that we contend for is the one that should be adopted by this Court. Now, we pass to another aid to construction and that is the history of the Act itself. That history was very carefully reviewed by this Court in 1942 in the Fisher Company against Witmark case and I don't want to go through that entire history but very, very briefly. The first Copyright Act was adopted in 1790 and it provided for an original term of 14 years and the renewal term of 14 more years. But it confined the renewal to a situation where the author was living at the end of the first term. If the author died before the end of the first term, the copyright determined and the author's work went into the public domain. 40 years after the adoption of that original statute, approximately 40 years after, in the year 1831, the Copyright Act was substantially revised and the term -- the original term was put up from 14 years to 28 years and the "renewal term," as I call it, continued for 14 years but there was a provision that its family, the widow and children would be entitled to the benefit of that 14 year renewal term. The exact language of that statute was this, and I hate to read so much but it's quicker to read than to try to paraphrase and I want to be accurate in each of these instances. The language of that statute is, "If the author being dead shall have left the widow or child or children, either or all living, the right," -- that's the copyright, "continued to such widow and child or children for this renewal period of 14 years." Now, that statute remained unrevised on the books from 1831 for another period of almost 40 years until 1870 when the Copyright Act was again substantially revised after considerable legislative consideration. There were hearings in 1870, I think, public hearings, but in any rate the Act was given very serious consideration before it was substantially revised in 1870. And there the Act provided instead of what was in the 1831 Act, that the renewal should go to the author or his widow or children, if he be dead, they shall have the same right for a period of 14 years. There the conjunctive that was in the 19 -- 1831 statute was omitted from the 1870 statute and the language either all living that was in the 1831 statute was admitted in the 1870 statute. Another period of almost 40 years went by when in 1909 pursuant to a message from President Roosevelt to the Congress regarding the necessity of considering the revision of a Copyright Act, a new Copyright Act was enacted in 1909. And that Copyright Act contained the same provision so far as the words "widow or children" were concerned but in many respects changed the pre-existing law. It was that Act that Mr. Justice Frankfurter referred to in his opinion in the -- in the opinion of this Court in the Witmark case as one that was adopted after elaborate legislative considerations and it was pointed out in that opinion that the 19 -- the 1909 Act differed very substantially from the bills that have been previously introduced in that situation during the prior years from the President's message in 1906, I think it was until 1909. But we call the Court's attention to the fact that in the 1909 revision the Congress was not unmindful of the prior provisions in the Act regarding widow or children because there they went to the trouble of putting in and inserting in the revised Act an additional word, the word "widower" to cover the possibility perhaps of the existence of an authoress rather than an author. Now, we claim that that history of the Act shows clearly that Congress intended to get away from the provisions of the 1831 Act by the 1870 Act that's been in existence ever since and that -- that statutory history shows that it was the intention of Congress to put the widow in a separate and distinct class from the children. Now, the plaintiff claims precisely the opposite of that and they -- I say the plaintiff was a guardian ad litem, regarding ad litem claims that there was a provision in a draft of a bill that was submitted to Congress prior to the enactment of the 1909 legislation which provided for the separation of the widow and children into two distinct classes, that that draft was not adopted. Consequently, it was not the intention of Congress to create two separate classes but only one. The clause in the draft that they refer to reads that the copyright may be further renewed by the author or he is -- he be dead, leaving a widow, by his widow or in her default, or if no widow survive him, by his children. We point out --
Hugo L. Black: What are you reading from, that (Inaudible)
Theodore Kiendl: I'm reading from quotation of that clause in the draft that appears in the brief of the Solicitor General at page 9. We point out in connection with that draft language in a -- an entirely different view that there's no indication in the history of that legislation that that was intended to be either a restatement of the existing law or a correction of the existing law. But it was in connection with the law that was quite radically different from the one that was finally adopted. It had an entirely different term in. It covered the periods so far as music -- musical authors were concerned. Those that wrote popular music could cover the one single term and the term for life plus a period of 50 years. But the guardian also claims that the changes that were made in 19 -- in 1870 and in 1909 were not intended to interfere in anyway with preexisting rights that they have remained exactly the same as they had been in 1831 and continued in that same condition right down to date. We hardly think that's any adequate explanation for the various substantial and radical changes in the statute that we've already referred to. Now, another aid to statutory constructions would be what comfort we could possibly get from the decisions of the courts and from the text writers and the commentators. So far as Court's decisions are concerned there were none that squarely determined this point. But there are two decisions that contain intimations or suggestions that we think can only be construed as very favorable to our side of this controversy. The first run is in the case of Silverman against the Sunrise Pictures which was decided by the Court of Appeals in the Second Circuit in an opinion written by Judge Hart. There, the question presented was simply stated by Judge Hart as one whether the rights under Copyright Law resulting from an application by only some of the asset law of the author preserved the right to a renewal of a copyright. In that case, there was a very famous book written by an authoress and the copyright that she had acquired expired in 1915. She died in 1909, six years before the expiration of the original term. She left a will. The will provided for the copyright to go to a certain specific way. The will was probated. The executors qualified. They administered the estate. They were discharged in 1911. And when 1915 came around, the 28th year of the original copyright, two of the authoress' sisters, only part of her heirs at law or next to kin applied for and obtained the registration renewal. When the motion picture company that tried to buy the moving picture rights to that book was about to produce the motion picture, someone came in and suggested that he was going to do it. So, the motion picture company brought suit to obtain a preliminary injunction restraining this infringer from doing what he threatened to do. The infringer only took the position that the motion picture company had no title to that renewal. The District Court denied the application for the preliminary injunction. The Circuit Court of Appeals reversed and granted the preliminary injunction and in the course of the opinion, Judge Hart said this, he said that the purpose of these renewal provisions was to give to the persons enumerated in the order of their enumeration a new right or estate. We say that that seems to us to mean very clearly that the Court there considered that the person's enumerated from the section in the order of their enumeration, that is the author, the widow, the children, the executor and the next of kin took in that order just as we contend here. Now, that decision was not necessary for the disposition of that case but it seems to us to be indicative of what the thought was at that time at least and that was in the year 1921 and we come to the decision of this Court, the opinion written by Mr. Justice Frankfurter. There was a case where the sole question was whether there was anything in the Act that prohibited an author from assigning his renewal rights prior to the time that he had secured them and this Court answered that question in the negative. In the opinion in that case, although it does not appear in the body of the opinion and is in a footnote, Mr. Justice Frankfurter you had this to say regarding the situation there. May preface that for a minute by calling the Court's attention to the fact that that case involved musical -- a piece of popular music, "When Irish Eyes Are Smiling." And there were three coauthors including Chauncey Olcott, two of them were dead. Mr. Ball was dead and Mr. Olcott were dead and they both left children. In the footnote in that case this was said, Ball and Olcott are no longer living and under Section 23, and I again digress Section 23 is the present Section 24 exactly, and under 20 -- Section 23, their interest in the renewal passed to their widows. Now, of course that wasn't essential to that decision and maybe considered in the nature of over the dicta but it seems to us indicative of the trend of judicial thinking on that subject. I pass from the Court decisions to an opinion of the Attorney General that we cite in our brief. We cite it as the opinion of the Assistant Attorney General Fowler but with the permission of the Court, we'd like to correct that to this extent that that opinion indeed signed by a Assistant Attorney General Fowler was approved specifically by Attorney General Wickersham and it was an opinion on Copyright Law that was sent to the President of the United States and it says squarely that this extensions or renewal rights under the 1909 Copyright Act shall pass to persons and in the order mentioned just exactly as the Court said in the Silverstein case that I've read. Now, that opinion of the Attorney General who was rendered one year after the Act was enacted. We've also pointed out a number of text writers, lecturers who've taken substantially the same position that we've taken here. One is the article in corpus juris and corpus juris secundum on Copyright Law by Mr. Hale in which he takes the same position. Another is an article in American jurisprudence that takes the same position and there are others that we mentioned. We did rely to some extent on a statement contained in a book on Copyright Law by a man by the name of De Wolf. We referred to it at page 11 in our brief where Mr. De Wolf said squarely, the renewal can only be obtained by the beneficiaries expressly named in the law and by then in the author names, i.e. The person having the first right is the author, if living at the end of the original term. If he is not living, then the widow or widower is entitled to renew. If there is no widow or widower, the children come in. We submitted that to the Court, a square support for our position but we were rather surprised than indeed temporarily a little embarrassed when we received the brief submitted by the Solicitor General of the United States on behalf of the Register of Copyrights in which he called attention to another statement by the same Mr. De Wolf who was a copyright lawyer and one time the acting Register of Copyrights, a statement in the letter that he had sent to a very prominent copyright lawyer in New York, in the year 1944. In passing, I would like call the Court's attention to the fact that in the Solicitor General's brief, the Solicitor General says specifically that the Office of the Register of Copyrights is not taking any position on the issue, the question of whether or not an illegitimate child is a child within the meaning of the Section, that's a footnote at page 3 of the Solicitor General's brief. And in connection with the other question, the more important one we think, at the end of the brief, the Solicitor General brief states that the memorandum doesn't dares that there can't be no question as to the correct legal interpretation of the Section that its purpose is to repeal what Mr. De Wolf said in 1944. The Copyright Office has never felt that the matter was clear enough to justify taking the position that a child could not renew so long as the widow is living. Now, in connection with this statement of Mr. De Wolf's, the letter is included as an appendix to the Solicitor General's brief at pages 26, 27 and 28 and the letter starts with a statement from Mr. De Wolf, the question of whether the widow takes precedence over the children and renewal copyrights has never been settled. My own view is that they are members of one class which is somewhat different from the view he took in 1925 that I have read, but he goes on to explain at the end of that letter, I'm reading from the bottom of page 27, at any rate the office has never felt that the matter was clear enough to justify, taking the position that a child could not renew, so long as the widow is living. Our policy as you know is to register the renewal in the name of any beneficiary which seems reasonably entitled and leave the apportionment of interest among various beneficiaries to be settled by them or by a Court if needs should arrive. We -- after receiving that brief obtained a copy of the letter to which that is an answer and it's a letter from Mr. Johnson, rather famous copyright lawyer who participated in connection with the hearings in the 1909 Act, in that letter we had included in our reply brief and it shows clearly that Mr. Johnson at least squarely supported the view for it -- for which we are here contending. Now, there are other grounds contended for by Circuit Judge Stephens in his opinion below that we could call attention to. Do I have a few more minutes Your Honor? Yes, the light will come on when you -- when you (Inaudible) He said that in construing this Act there was no separating phrase between the words "widow and children" and that consequently there were four categories instead of the five that we contended for. The first category was the author and that was qualified by the words "if still living." The second category was the "widow or children" and that was qualified by the words "if the author be not living." The third category was the executors and if there were no will, the fourth category, the next of kin. Now, that conclusion, we submit, does not construe the language as it's written but rather puts into the language something that is not there, although Mr. Circuit Judge Stephens does say in his opinion that he's giving to the word "or" it's full disjunctive meaning and we can't comprehend just what was meant by that, how you can give the word "or" it's full disjunctive meaning by converting it into the word "and." I just want to pass hurriedly to the second question in the case, this question regarding illegitimacy. The word "children" has been in this statute continuously since 1831. That it mean in 1831 to 1870, to exclude illegitimate children, to include them from 1870 on or did it mean this one and the same thing at all times. There is no intimation anywhere in the statute that the word "children" included illegitimates. There is no indication of any congressional intention to include illegitimates in the word "children" as used in the statute. And at common law we all agree, under the law of England, it was perfectly clear that statutes would always be construed when they contain the word "children" to exclude "illegitimates." And we think the same thing has been true in this country to a very large extent, although concededly there are some decisions that indicate somewhat to the contrary. But there is the decision of this Court in the case of McCool against Smith decided in the year 1861 in 66 United States where this Court said -- can I just read too short sentences?" By the rules of Common Law, terms of kindred when used in the statute include only those who are legitimate unless a different intention is clearly manifest. This is conceded by the counsel for the defendant in error, the proposition is too clear to require either argument or authority to sustain it. Now, the court below mentioning that very decision, says it probably would have been more correct if it had been confined to questions involving title or inheritance to real property, but that it was not applicable to the situation of construing the word "children" under the Copyright Law. And the court below cite some cases which involved questions we think can be distinguished from the one here involved where there were such words as "children and -- or dependent relatives" and the words "dependent relatives" in connection with the word "children" were used to include illegitimates.
Felix Frankfurter: Mr. Kiendl, do we not have to decide in the first instance whether the statute needs to be construed as a federal statute in the meaning as such or rather the term children is to be construed referring to state law?
Theodore Kiendl: I should think, if Your Honor it please, you have to take the former, the first proposition you suggested, construe it under the federal law. The word "children" is used in the federal law. It has specific meaning at the time it was put in the federal law. We think it continues to have that same meaning down to date.
Felix Frankfurter: I -- I follow your argument Mr. Kiendl that it is to have a -- if it were a federal meaning but there are statutes of course that -- that was (Inaudible) the appropriate, this Court has said that children, that local state meaning (Voice Overlap) --
Theodore Kiendl: To be ascribed to it.
Felix Frankfurter: -- to be applied to all the first education that -- for the estate.
Theodore Kiendl: And -- then the state decisions bring up the question of possible dependency under the Federal Employers Liability Act. We think that is so, that has been so. But here there were decisions in this very Court in the Ninth Circuit which we thought were absolutely our way. I'd like to refer to two of them. I can't pronounce the first name of the first case because it was a Chinese girl and the first name was -- begins with NG, I suppose that's pronounced a name, but there are two cases, one was Ng Suey Hi against the Commissioner of Education, the other was Louie Wah You against the Commissioner of Education. Those cases were cases of comparatively recent origin decided unanimously by the same Ninth Circuit Court and they were decided in 1927 and 1928 under these circumstances. A Chinese girl on the first case, a Chinese boy or man in the second case tried to enter this country and they were stopped by the immigration authority. They suit out writs of habeas corpus to compel their admittance to this country. The District Court discharged the writs, denied them admittance, they appealed to the Court of Appeals and the Court of Appeals upheld the refusal to admit them. In that situation, there was a statute which appears in the opinion at page 66. The statue, the immigration statute or citizenship statute contained this language, "All children born out of the jurisdiction of the United States whose fathers maybe a citizen of the United States are declared to be citizens of the United States." And under that statute, these two children, both illegitimate, contended that the very language of that statute the "word children" included them specifically. The Court said no. Now, when this case came up in the Court of Appeals in the Ninth Circuit, they didn't distinguish that case, they didn't quite overrule it, although apparently they rejected the reasoning of the opinion below, the opinion in the two other cases. There they said this, "Mr. -- Circuit Judge Stephens, sir, we don't think that the doctrine," that's the doctrine of nullius filius, "the doctrine so squarely considered and met" -- I'm sorry, we don't think the doctrine was so squarely considered and met. In either case, as to require us to hold that it applies under the principle of stare decisis but although the opinions weren't extended in either of those two Chinese immigration cases, we submit that that doctrine was squarely considered. It had to be squarely considered. It was the only doctrine involved in the case. It was the only issue in the case and it had to be squarely met and it was squarely met and decided in our favor. Now, I have two other points that I'd like to make rather hurriedly. In reading the brief of the respondent, some members of this Court make it the impression that they are applying to the principles here involved some measure equity or good conscience that the defendant widow in this case is invoking harsh, and ancient doctrines to defeat these children, this child, this illegitimate son of a right provided by a federal statute and the whole tenor of the brief is that the statute, as we interpret it, would constitute a preference or a priority for this widow that she's been discriminated in favor of and against children, legitimate or illegitimate. We submit that that just isn't so. That the statute in fact, as we understand it, prefers that it -- prefers anybody, the children of the author because here is a situation where an author during the last 28 years of his life produces a lot of music books and he copyrights them. Those copyrights become illegible for renewal after his death, after 28 years and the first period of five years or 10 years or however long the widow may normally be expected to outlive him. Those renewal rights belong to her and to her exclusively. But during the entire remainder of the second renewal -- of the second period for the renewal, the period in this case would be probably from 1960 to 1978. The renewal rights on all these words passed exclusively to the children so that there's no discrimination in favor of the widow under the statute but the discrimination of any as in favor of the children who inherit -- who don't inherit to take despite the laws of inheritance, despite any will whatever remains and accrues after the death of the widow.
Speaker: Are you -- as to the question, I was going to ask you, are you clear about that?
Theodore Kiendl: I think I am, Your Honor.
Speaker: Can't the statute be read, now, I was looking at it, can't the statute be read under your construction as giving her the whole title to the copyright and to -- she can dispose of it by will?
Theodore Kiendl: We think absolutely not.
Speaker: You think not. Well, that's the question I had.
Theodore Kiendl: The renewal, of course, you can't renew a copyright until after 27 years have expired.
Speaker: Right.
Theodore Kiendl: It's only during the 28th year that you can renew it. And if the widow be dead, of course, she can't renew it. Consequently, we don't see that she has any right that she can take in those renewed periods after her death by will or otherwise that they all pass unimpaired to the children and I don't think there is any contention raised by anybody to the contrary.
Stanley Reed: But -- but the author could -- could have solely -- make all the rights to it, as I understand it.
Theodore Kiendl: He could assign his rights under Fisher against --
Stanley Reed: The Witmark case.
Theodore Kiendl: -- Witmark and no question about that during his lifetime and that would be valid, if he were living at the time that the copyright became illegible for renewal.
Stanley Reed: But if he decided -- if living when the copyrights became eligible for renewal or if -- if he were dead, would it not, one of the assignee?
Theodore Kiendl: No, he had no right to assign away the widow's rights or the children's rights.
Stanley Reed: It's only -- it's only his own.
Theodore Kiendl: Only his own rights. Now, one other thing and we think this is a rather important consideration for this Court and that is that this copyright law singularly enough is absolutely silent as to any division or distribution that should be made if the plaintiff's contention is sound whether the widow takes one half, the child takes one half, if there are five children, does the widow take one-sixth and each one of the five children take one-sixth. There is not a word in the statute regarding that and we point out that in other statutes, comparable statutes, we think the Donation Act that was involved in the Cutting case to pay an allowance to the statute that we cite in our brief. They both provide in situations analogous to that contended for by the plaintiff.
Stanley Reed: Suppose the widow should die before the renewal expires, then where does it go?
Theodore Kiendl: To her estate.
Stanley Reed: To here estate?
Theodore Kiendl: If she's exercised the right of renewal promptly, that belongs to her.
Stanley Reed: Children get none.
Theodore Kiendl: That's right, sir, for that particular renewal. Now, under those two statutes there is a provision, specific provision, that they take an equal proportions or an equal shares. There's nothing of that kind in this Copyright Act and we submit that's another consideration that warrants the conclusion that Congress had in mind from 1870 on to date that the widow takes and becomes the sole owner of those renewal rights that accrue or mature or become eligible during her lifetime. We therefore submit that their decision below was wrong, that the judgment below should be reversed and that the judgment of the District Court in our favor should be reinstated.


William H. Rehnquist: We'll hear argument now on number 00-201, the New York Times Company versus Jonathan Tasini. Mr. Tribe.
Laurence H. Tribe: Mr. Chief Justice and may it please the Court: The parties on both courts below agree on at least two things, first, that section 201(c) represents a compromise that assures freelance authors that they may control and exploit their individual contributions to collective works like newspapers and magazines in new anthologies and serializations and screenplays and other derivative works unless they've expressly transferred that right. The parties are also agreed as are both courts below that 201(c) assures the publication of collective works that the publisher of such collective works has the aggregate right to publish any article in the collective work both in publishing the collective work itself of course, but also in publishing that article, quote, as part of any revision of that collective work, again unless there has been an express transfer of the right. Now the principal impetus for this measure was a rather strong wish to undo several quite notorious rulings like that of the Southern District of New York in the Geisel case in 1968 which of course involved the legendary Dr. Seuss and denied him the right to stop the unauthorized distribution of toy dolls that were derived from cartoons that he had published decades earlier. There is no hint at all in the history of this measure and I think no hint in the way it's written that microfilm, for example, which had been in use for some 40 years at the time this measure was passed and which people used to make copies of individual articles more often than to make copies of entire cumbersome periodicals was seen by anyone as a problem to be addressed or solved by 201(c).
Antonin Scalia: When you say people used to make copies you mean the ultimate user?
Laurence H. Tribe: The ultimate end user.
Antonin Scalia: Yes, but the person who produced the microfilm or the microfiche produced the entire work. It produced the article as part of the entire work, not to be shown. When a person went to the machine he would only look to the article that he was interested in.
Laurence H. Tribe: As do we, Justice Scalia, in Nexis and in the CD-ROMs, the entire text with the exception of certain graphics that cannot be handled by ASCII is put in.
William H. Rehnquist: When you would look at a newspaper on microfilm you would get the whole page. You would probably want to single out a particular article but it was the whole page that appeared to you.
Laurence H. Tribe: That's right and in this case you basically conduct a search under the algorithms that are used by Nexis, conduct a search of the entire periodical whether you call for a particular topic--
William H. Rehnquist: But it's not all in one piece, is it.
Laurence H. Tribe: --Well it's in virtual... it's in... it's certainly not... it's not a newspaper that we're used to. You can't drink your coffee to it or wrap your fish in it but that really is a red herring, if I may say so.
Sandra Day O'Connor: Well, but I suppose that it has removed the photographs and the ads. It's been disaggregated and what you see are the individual articles from a particular--
Laurence H. Tribe: At any one time, but with a very simple prompt of about 15 characters you can get the entire periodical.
Sandra Day O'Connor: --But at least in let's talk about the Nexis for a minute. You don't see ads and the photographs and all that. But you can pull out an entire article that had appeared in the Times.
Laurence H. Tribe: You certainly can. That's why we're--
Sandra Day O'Connor: Now, I assume that the publisher can enter a contract with an independent author to cover the subsequent use in database material and--
Laurence H. Tribe: --Yes, and for decades--
Sandra Day O'Connor: --Probably the publisher does that today--
Laurence H. Tribe: --Sometimes. What's happened, Justice O'Connor, it appears that for at least 20 years people have assumed because no one complained of this practice that the standard contract was not limited to the print medium. Now as of 1995, for example, the New York times made clear they would not make contracts with people for print only.
Sandra Day O'Connor: --I notice, though, that the head of the copyright division has at least written a letter that looks like she thinks the court below was absolutely right.
Laurence H. Tribe: That's right. On the basis of a display argument that is disclaimed by the Tasini respondents that wasn't made below and that doesn't make sense under the statute, because quite clearly if we are involved in reproduction and distribution display is covered in the intersection of those. It's not, I think, a serious argument. You notice the solicitor general did not decide to come into this case. But you're right about the register of copyright. However that--
Ruth Bader Ginsburg: Mr. Tribe, does that view of the register of copyright relate at all to one effort that was made in the 76 act and to give the independent artisan, the artist, the author more muscle vis-a-vis the publisher or the patron than before?
Laurence H. Tribe: --It's an interesting theory, Justice Ginsberg, but I've tried to imagine how by carving this pie into two pieces one could give the older, the other, more muscle.
Ruth Bader Ginsburg: One could pay that's--
Laurence H. Tribe: Well, in 1995, I was saying a minute ago, the New York Times said we're not going to run articles print only. It would be kind of pointless now when almost everything has to go onto the Internet or be preserved in some other way other than print and they said that our contract will automatically cover print and electronic rights. And what's interesting is that the royalties didn't change a cent after that. I think it's a kind of belief in magic that leads some people to think that if there's an inequity of bargaining power it will be solved by creating two estates rather than one. In fact, in the mid 1980s it's interesting that the respondents went to Congress, the National Writers Union went to Congress and tried to get a measure much more modest than this one, a measure that would say that when there is a demonstrable inequity in bargaining power, an unconscionable arrangement, and when that's shown by individualized proof there could be a transfer of rights. Here they want a wholesale, global transfer which I don't think is necessarily going to change anything for the future but could have very serious impact on existing writings whose authors and heirs and assigns are going to be extremely difficult to locate.
William H. Rehnquist: --So far as the future is concerned, Mr. Tribe, we're just talking about money, aren't we. I mean the people can negotiate one way or the other, however--
Laurence H. Tribe: That's right and all I'm saying is there is not any particular reason to think the deals will come out very differently.
Antonin Scalia: --But at least people evidently think it will. They're expending a fair amount of money.
Laurence H. Tribe: Well, I think, Justice Scalia, that they think quite rightly that they can get a lot of money to settle a case in which, if we were to lose, we and many other publishers around the country would have no choice but to engage in defensive deletions of a lot of material that could otherwise expose us to massive statutory damages under the copyright laws. That's why a number of Pulitzer Prize winning historians have said they're afraid of what it will do to their research. That's why the American Library Association which is an amicus on their side has conceded that it's awfully difficult to find these people and there may be an adverse impact. Even the register of copyright in the letter to which you referred, Justice O'Connor said there may be an impact on scholarship and research. And I think that's an understatement.
Speaker: Well, for one thing, this is a three year statute of limitations which will--
Laurence H. Tribe: I don't know that that will help a lot, Justice Ginsburg and the reason is that keeping something on Nexis or in CD-ROMs that you have in circulation after it has been determined to be infringing and letting people potentially have access to it, which the download might be an infringement, would be a new act. So I don't think the statute of limitations will solve the problem.
Speaker: --It's hard for me to see that that's going to be the effect in the real world because after all these authors have an interest in exposure, it's just like a lot of people now no longer have to be artists for hire are that anyway, because they will give the copyright to the patron, they want people to get to know who they are.
Laurence H. Tribe: I think that's the irony, Justice Ginsburg. I think the erasures of a lot of these things will not be in the interest of the people whose work may be erased but someone who wrote an article in 1980 and maybe was 60 years old at the time and maybe isn't around at the moment, there are a lot of people like that. We don't know how many. We don't know how many articles, but the U.S. News and World Report has already decided in anticipation because there's no... they think no analytic difference between microfilm and some of these products, certainly the GPO CD-ROM which is a photographic copy is not different, they've stopped putting their work on microfilm. The line drawing problem here, if I may say, is one of several reasons why recalibrating the balance that Congress struck is a particularly inappropriate job for the Court.
Speaker: Mr. Tribe, can I pursue this damages question. I mean, as far as ripping out everything that's on the systems already, that certainly need not be done by court decree.
Laurence H. Tribe: No, certainly.
Speaker: A court can say, you know, taking equity into account we're not going to issue such an injunction so the question would be your clients would be compelled to erase all of this stuff because of the damages they would have to pay. What would the damages be if, as you say, it was worthless.
Laurence H. Tribe: Well under--
Speaker: If it was worthless, the damages would be negligeable.
Laurence H. Tribe: --You would think that, but under 504 damages are not measured by the harm to the person who sues. There is a provision that says that they can take the... get the benefit of the presumption that all of our gross income was attributable to their contribution and the theory of that would I suppose be that they don't need a theory because the statute says it, but the theory would be that all of the work we put in electronic form would not have been worth anything if it looked like Swiss cheese with stuff missing.
Speaker: Rebuttable or irrebuttable?
Laurence H. Tribe: It's rebuttable. But they can also elect statutory damages which can go up to $30,000 a violation and some courts accept the Nimmer theory of multiple violations per infringement. It would be more even, if not, it could be--
Speaker: The statutory violation applies only to willful violations.
Laurence H. Tribe: --No, it's more if it's willful. But there is a statutory provision in any event and it would become willful.
Speaker: What's the nonwillful amount?
Laurence H. Tribe: I think it's a sliding scale, Justice Scalia, and I think there is discretion to set it. And it can be very low, I think as low as $250 and as high as over 10,000, but I have to say I don't remember for sure. But the point is there are something like 100,000 freelance articles just on Nexis. There are 18,000 journals on Nexis. You don't have to multiply 100,000 or 50,000 or 20,000 by a very large number to know that a good business judgment for a lot of these companies is going to be who wants the litigation, and you couldn't put together class actions to solve the problem easily, given Amchem and Ortiz because of the incredible variability of the contracts of the... some of them, for example, will have registered the copyright in the article within three years of its publication and then be eligible for statutory damages, others won't. They'll be plaintiff-specific defenses, statutes of limitations and laches. You mentioned the statute of limitations, Justice Ginsburg. It seems to me that of course that is not a reason to read the statute incorrectly but I think--
Speaker: I think if we go back to that for just one second, because I'd like to go about to where Justice O'Connor, I think, started. The part that I'm having difficulty understanding and I don't actually understand this is what precisely, precisely say in the case of Nexis was the event that you think the other side is saying changed the work from a revised work to a new work. In particular I'm thinking, say, at ten in the morning on May 11th, 2001, the Washington Post has a piece of paper, it's called the Washington Post. And then in a analogous form that piece of paper is in its computer. And then something happens. That is, there's a transfer of that information over to Nexis and what, I'd like you to focus right on that, because what you... I want to know what event in that series of events on that morning we're talking about as being the copying, the unlawful copying.
Laurence H. Tribe: --That moves beyond revision.
Speaker: Yes, in their view in your opinion.
Laurence H. Tribe: I assure you, Justice Breyer, I'd love to know at least as much as you would and I hope Mr. Gold will enlighten us, because--
Speaker: All right. Well, then, let me give you a little bit further... imagine what it might be. It might be this. It might be that there is a person in the Washington Post who pushes a button called send, and at that point what is sent is not the electronic and analog of the Washington Post several pages, but rather a few articles from the Post and then a little later in the day a few more are sent. And then a little later a few more are sent, and when they arrive in Nexis, they are nowhere stored in a form that is in any sense analogous to that page or several pages in the Washington Post, but rather is in a large computer where they are mixed with hunting fishing journal and everything else.
Laurence H. Tribe: --Justice Breyer, the record is completely unambiguous that nothing like that happens. What happens is that the computer text itself, the very same computer text that goes to the printing office so that the New York Times then arrives at your front desk.
Speaker: --example is the Post.
Laurence H. Tribe: Well the Post, that's fine. I'll take the Washington Post, Washington Post, Washington Star, we can pick our paper. The Washington Post, they all follow the same protocol. There is a computer text and that text is ASCII readable. That means it can be put in computer form and one version... one copy, it's not even a version, the identical thing goes to the printing facility and--
Speaker: With an identification code for this day's edition of the Washington Post. Is that the identification code?
Laurence H. Tribe: --Yes absolute... the identification code--
Speaker: So that when you pull it up what you get is the whole Washington Post.
Laurence H. Tribe: --If you ask for the Washington Post.
Speaker: Ah, you have to go out of your way to ask for... have it recompiled.
Laurence H. Tribe: I wanted to first describe what happens when it gets there and then I'll try to say what happens at the other end when someone--
Speaker: I want to know what's sent.
Laurence H. Tribe: --What is sent is computer data, whole Washington Post and it's put before it goes there they add advertisements and some other graphics. And then it goes to the assembly room and then it's delivered and put on newsstands. That edition of the ads and the graphics which are not ASCII--
Speaker: Forget about the ads and the graphics.
Laurence H. Tribe: --That edition is not made in the version that goes to Nexis. Nexis processes that unitary computer data. It goes instantaneously, not in driblets, and it doesn't go article by article.
Speaker: So I could look to the opinion of the district court to find that because it might very technically turn on whether the transmission to Nexis is the transmission at one instant of time of the electronic analog, and I chose the Post purposely because it's not involved in some other aspects of the case, the... it might turn on whether that whole electronic analog of the entire paper is transmitted instantly at one instance over to Nexis where later on they use electronic scissors and cut it up or whether article by article at different times it's transmitted so that there is no cutting up.
Laurence H. Tribe: There's not a shred of evidence, not a whisper that suggest that they're first disassembling the paper into articles and then whisking it over. It is true that the computer text registers each article and identifies it just as it identifies pages and there is a file for each article. But a file is really a conceptual thing here. It's not that they have a little file and they have the article stuffed in it. And the result of all this is that the technology shouldn't obscure what's happening. What's happening is that something that is as close to the Washington Post for that day as it could be given this medium appears in the Nexis computer.
Speaker: Well, Mr. Tribe, despite how it is transmitted, if the whole thing goes immediately, then at Nexis is it disaggregated and stored in a way that one finds as individual articles.
Laurence H. Tribe: No, Justice O'Connor. What happens is--
Speaker: That's odd, because when I've used something like that I've gone to an author's name or a subject matter and tried to retrieve an individual article, not the whole newspaper.
Laurence H. Tribe: --No, of course not. Although some people want the whole newspaper and you can get it by saying date, paren, 3/28/2001. But let me answer your question--
Speaker: Well, I think it's fair to say that Nexis at least strips out the ads, strips out the graphics and the photos.
Laurence H. Tribe: --Nexis doesn't strip out the ads.
Speaker: Well, somebody is doing it because what you get--
Laurence H. Tribe: The ads are just not added.
Speaker: --What you get is the article.
Laurence H. Tribe: First of all, you get the whole thing in the GPO CD-ROM. Secondly, Nexis doesn't subtract the ads, they're just not added by the Washington Post, although I'm not sure that that matters. Third--
Speaker: They're not added but they are in the original version.
Laurence H. Tribe: --That's right. That's why this is a revision. We're not claiming it's the same thing but it is awfully close and if this isn't a revision, it's hard to know what would be. The point I want to make is that with... once the computer has all of the digital information, it indexes it according to key words and among those words are the date and an author and the data is sort of scattered to the magnetic--
Speaker: Isn't that the point, Mr. Tribe, at which there is no longer any functional difference between the way Nexis stores and the Nexis subscriber calls up on the one hand and simply a freestanding reprint of the article which anybody can walk into a store and buy on the other hand.
Laurence H. Tribe: --There are several important differences, Justice Souter. One, the search inside Nexis is always of whole periodicals, and that's undisputed, two--
Speaker: I don't understand what you mean. If I want an article by Smith, I understand that I can search for an article by Smith not for the entire New York Times or Washington Post in which Smith's article occurred.
Laurence H. Tribe: --I understand Justice Souter but it is undisputed that the way they do it, it's more efficient, is that they will take the intersection of all of the indices you want and they will search the entire periodical by periodical to find the article. They don't... it's not after all a thinking machine. It's a dumb operation, but more important, you're not charged for the article the way you would be at a copy service. You're charged for search time and that's the time for searching entire periodicals. Also--
Speaker: Okay. And if I want to get the article cheap I identify the article very specifically so that the search time will be less rather than more and the functional effect is that I buy the article.
Laurence H. Tribe: --When you get it, you get it as part of the revision and that's--
Speaker: Well, no, but I don't. If I get... maybe you're telling me something in fact that I shouldn't dispute, but if I want Smith's article, what comes out of the machine is Smith's article not the entire edition of the Post.
Laurence H. Tribe: --I understand Justice Souter, but if you'll permit me, let me say why I nonetheless think you're getting it as part of the revised periodical, and the reason is this, it's very important, so please let me stress it. If it were the case that the only way you could comply with 201(c) was that when you asked for an article you get, whether you want it or not, the whole periodical in which the article appears, that would satisfy the concern you're expressing. But if that was the only way you could do it, the statute would be incoherent because it says that you may reproduce and distribute the contribution as part of a revision or you may distribute the revision itself or a later element in the series, and if it were the case that you have to get the whole thing, then we would have erased from the statute the key compromised words--
Speaker: I will accept that but it may then simply be that the price of coherence, as you put it, is a limitation on the right of the periodical or of the collection and a corresponding recognition of the right of the author. That may be what coherence demands.
Laurence H. Tribe: --Well, but wouldn't that be for Congress, Justice Souter? That is, Congress said--
Speaker: If that is a necessary... if that is the only way to avoid for practical purposes reading the author's copyright protection right out of the statute then I would suppose that's what Congress necessarily has provided.
Laurence H. Tribe: --But Justice Souter, to say that it reads that protection out of the statute is hard to square with the fact that these authors in undisputed testimony themselves said that when they tried to syndicate their work or serialize it or sell it in some way there was never any evidence that its appearance in this archival context on Nexis or the CD-ROMs ever made the slightest difference. They can fully exploit their individual work, the argument is that we should be able since Congress said so to reproduce and distribute not just a revision of the composite work, but the article as part of that revision, and that cannot mean--
Speaker: Well, because you played... the idea is you played their song beyond their permission. Tell me, Mr. Tribe, why if it is wrong to think of what's going on here if you put it in very simple terms as taking the article that the Post has received, to put it in the Post, and just putting it in a much, much larger journal? When you give it to Nexis, isn't that what happens?
Laurence H. Tribe: --No. No, Justice Ginsberg, it's when you bind the book and put it on a library shelf you could say it's part of a huge book. The fact is that this is a huge database and the Second Circuit's suggestion that we are treating that whole database as the revision is completely wrong. We've said all along that the revision is simply the digitized version of the periodical. That digitized version is one that contains--
Speaker: That doesn't exist... that does not exist separately, it does not exist by itself, it's part of this big mass of data.
Laurence H. Tribe: --That's the nature of the medium. Nothing exist separately.
Speaker: You're inventing a revision that has no real world existence. You're saying there's just this part of the data which is scattered all through I don't know how they scatter on the disk or wherever--
Laurence H. Tribe: But Justice Scalia, Congress was well aware... they talked about disks, they talked about any medium, they talked about machines having to read the stuff, they knew about the computer, 1978 wasn't that long ago. This law was written to make sense in the computer context.
Speaker: --It would have been thoroughly feasible, would it not, to send over the Washington Post with identification that would only refer to this edition of the Washington Post.
Laurence H. Tribe: But the statute allows--
Speaker: In which case you would have no problem in the world, you have sent over the Washington Post.
Laurence H. Tribe: --No. The problem in the world we'd have, Justice Scalia, is the world doesn't want only... and Congress--
Speaker: That may well be so pay for it then. That just proves that it's better to do it the way you're doing it, commercially better, but that doesn't prove you should have to pay for it.
Laurence H. Tribe: --I think we're paying for the existing royalty and secondly, Congress said that we could publish as part of that compromise that we could publish the individual article as part of the revision. I'm saying that carries this implication and it doesn't destroy their copyright.
Speaker: Suppose you had an old fogy editor who didn't want to use any of new-fangled stuff so what he does is he cuts out each article in a magazine, each separate article and he sends it over to some separate library, he sends over the whole thing but it's sent over article by article and it is and knowingly to be... to be indexed in that library that he's sending it to by the article, rather than by the Washington Post of the day, would you say that somehow this is just a revision?
Laurence H. Tribe: Probably not. Probably not, because I think--
Speaker: I don't see why this is any difference in substance.
Laurence H. Tribe: --It differs in a lot of ways. We are sending over the entire periodical and people can find--
Speaker: My case, too. The whole thing's sent over, but it's sent over article by article and it is indexed by the article, in a whole mass of articles from every magazine in the country, now would that be okay if it was done in print? I don't see why--
Laurence H. Tribe: --Would they be charged for the articles or charged for the time it takes to search the whole library.
Speaker: --Oh, you think that's the difference?
Laurence H. Tribe: I think it makes an important difference. These things are also... if you look at the promotional materials they're promoted as complete periodicals, hundreds of volumes of the most widely-read periodicals. I think I should reserve the balance of--
Speaker: Very well, Mr. Tribe. Mr. Gold, we'll hear from you.
Laurence E. Gold: Mr. Chief Justice and may it please the Court: I'd like to begin by addressing the part of the discussion that just concluded, Section 201(c) and its cognate Sections 103 and the definition sections as has been discussed distinguished between the author's copyright in his individual contributed work, which he retains when he contributes it to a collective work, and the collective work copyright owners, this language couldn't be more cumbersome, mainly the publishers' copyright in the collective work as a whole. The statute couldn't be clearer, we believe, in the proposition that the collective works copyright owner has no copyright in the individual article in these free-lance situations where there is the separate author copyright. It seems to us that the clearest lesson from that is that if the publisher were in print terms to publish reprints of individual articles and treat them separately that would be an infringing action, the publisher would be exploiting the article as an article and without any authorization.
Speaker: Suppose that the Times published bound volumes of its paper but it had an index in the front of it, maybe it does, with all of the authors names and all of the subjects names and the other thing it did was it had tabs so that you could easily find the index. I take it that would be a permitted revision just because it's in paper.
Laurence E. Gold: Well, if in paper terms, the Times were to publish a version of what they electronically provide to Nexis, article by article, by the way in file... each article in a file. But if they were to publish that as a coherent whole, the reader's condensed May 1st New York Times, I think there's a very strong argument that that's a revised version of the paper.
Speaker: Well, at some point it changes so much that it's not-- --What you're saying-- --Electronically that's all this is, is it not?
Laurence E. Gold: I'm saying that is a fair argument but we're miles away from that fair argument.
Speaker: No, but take Justice Kennedy's precise example, it's not just the indexed New York times of this date but the Times publishes a massive volumes, all of the New York Times from 1950 to 1990 with an index in it, would you consider that just a revision of the one edition of the New York Times for which the Times had the copyright.
Laurence E. Gold: I do not think that's--
Speaker: I wouldn't think that either.
Laurence E. Gold: --a revision.
Speaker: It also could be a later collective work in the same series.
Laurence E. Gold: The question here, though, at least there is an argument that that's a revision and not an exploitation of the copyrighted author's article as an article, but my point, my beginning point is that as I understand Mr. Tribe's argument, if the Times were to publish an article as an article, saying this was part of the New York Times and offer it on the market, make copies and offer it to anyone who wants to buy it, that that would be part of the publisher's 201(c) right. At that point there's nothing, on that theory, there is nothing left of the fact that the author is the copyright holder in the article. We thought that was the starting point, that the one thing that is plain is that the collective work copyright holder cannot exploit the article as an article, as a separate freestanding work. And in the end what the Nexis system does is exploit articles on an article by article basis. They're drawn from hundreds of collective works.
Speaker: Mr. Gold, it would help me if you would identify for me precisely when the infringement occurs. Let me just take the very first step. Supposing the New York Times sends an E-mail to Nexis and attaches an exhibit and on that exhibit is an entire copy of all the stories in the paper that day. Is that an infringement?
Laurence E. Gold: I don't think that if you take a particular view of what the revised work is at that stage whether there is an infringement seems to me questionable, but--
Speaker: And the reason it would not be an infringement is because translating it from the paper media to the electronic media would be a revision? Is that correct? Just as though you put it in Braille, that would be a revision.
Laurence E. Gold: --As long as a collective work, but what is done here--
Speaker: So that step isn't an infringement. Now when does the infringement occur and by whom?
Laurence E. Gold: --The... it seems to us there are a series of infringements, the first is--
Speaker: Let's take the first one and by whom.
Laurence E. Gold: --The first is that the articles are coded, the article files are coded and then inserted into an overall database of millions and from the latest numbers, billions--
Speaker: And then you're going to have to tell me, why is that different from putting a photostat or a microfiche of a New York Times in a particular place in a big library?
Laurence E. Gold: --Because you're not putting a microfiche of the New York Times as a New York Times what you're--
Speaker: No, but you're putting a revision in.
Laurence E. Gold: --No.
Speaker: What you just said was a revision.
Laurence E. Gold: No, you're putting articles that were part of the revision into an undifferentiated mess and in that sense you're creating a quite different work. Those articles--
Speaker: I thought your complaint alleges contributory infringement by the New York Times the minute it sends it to me, data central. I thought that was the allegation in your complaint, that that's a contributory infringement because the New York Times knows what they're going to do with it, they're going to disaggregate it and have it available. Is that the allegation or not?
Laurence E. Gold: --That's the allegation.
Speaker: That's how I read it.
Laurence E. Gold: But my point was that it by putting... they're not sending an integrated New York Times to Nexis, they're sending disaggregated articles which will be further disaggregated.
Speaker: But that... even if they-- --The other side disputes that. Mr. Tribe says that's not it. We send exactly what we had, but be that as it may. Is it not your allegation in the complaint that whatever the New York Times sends is a contributor infringement?
Laurence E. Gold: Yes.
Speaker: Okay, now if that is so, why should it make a difference whether the Times sends it in an arguably aggregated form or an arguably disaggregated form, isn't the real point from your... from the standpoint of your case that the newspaper is participating in a process the end point of which is disaggregation and access to disaggregated materials.
Laurence E. Gold: Yes.
Speaker: And if that's the case then why isn't it on your theory an infringement, no matter what the format in which the Times or any newspaper sends the material to Nexis?
Laurence E. Gold: My only point in making... in stating that the form of the transmission, namely in article files, is that is part and parcel of what you've just stated, namely an overall process, to create a set of disaggregated article files.
Speaker: Then I should think your answer to Justice Stevens' question would be the infringement on the part of the newspaper takes place at the moment of transmission.
Laurence E. Gold: I think that in those terms that's true and I thought I did answer it that way in the... in the sense that it is the nature of the... the nature of the disaggregation and assigning each article to an article file which is part and parcel of this overall--
Speaker: I'm still not clear of your answer of Justice Stevens' question, when does the first infringement take place? It sounds as if you're saying the infringement takes place when the Times pushes the button to remove all the ads and the graphics or when the Times pushes the button to enable a searcher to pull up the article by author and that seems very strange to me. When is the first act of infringement? Forget about contribution to the tort, when is the first infringing act?
Laurence E. Gold: --When you say forget about contributing to, I'm just not clear on what you're asking. The--
Speaker: There's a tortfeasor and persons who contribute to the tort. When is the tort first committed? The tort of infringement.
Laurence E. Gold: --This is, I guess, as I see it an act that is the first step in a continuing process of infringement. The Times--
Speaker: When can I say, ah-ha, there's an infringement.
Laurence E. Gold: --It seems to me that in practical terms the first act of infringement of any substance is the putting of the article files as separate article files on the Nexis database and making it available in this system to be accessed, printed out, downloaded and so--
Speaker: I understand that, but why, since the newspaper knows that that is what is supposed to happen, that in fact is what it called for in its contract with Nexis, why doesn't the newspaper infringe at the moment when it takes the first step in that process, which I suppose would be the moment at which it presses the send button to send the material to Nexis?
Laurence E. Gold: --I don't think I've ever before been faced with an embarrassment of riches where I'm being asked to say how many multiple--
Speaker: I'm not going to ask that, I'm asking the opposite. That is, what is the process, and the reason I find it important is it seems to me possible from what your opponents have said that what happens at say the Post or the Times is there is the analog electronically of the front page. It doesn't have the pictures, it doesn't have the graphs. I don't care about that for the moment. Assume you lose on that one. I have the electronic analog which is close enough. And then what happens is somebody pushes the send button and at one instance of time that electronically is transmitted to Nexis where it's on a chip. Now all that happens after that, where we have the electronic analog on a chip, is some electronic signals are added by Nexis to parts of the chip so that any user of Nexis who wants to can call it up like any other thing, article by article. Now I want to know is, is that what happens?
Laurence E. Gold: --My understanding of what happens is that the Post creates a set of article files, each of which are an electronic--
Speaker: Creating an article file maybe that on a chip there's the electronic analog or on a disk and you add a few other signals.
Laurence E. Gold: --Well--
Speaker: Now the reason I'm asking this and the reason I think it's important is because it seems to me it might make an enormous difference if the only infringing act is when a user comes in and calls up a file, because at that point principles of fair use come into play, and I think principles of fair use might make an enormous difference to the end result and the reason to get my whole question out because I might not have another opportunity is I am disturbed very much by what I call, by way of parody, their Chinese Cultural Revolution argument. That is, we wipe out the history of the 20th Century and that's an overstatement but it's not such an overstatement when you think that most school children today will be looking for information on machines and if it isn't in the database library D.H. Lawrence, John P. Marguand or lesser figures will simply disappear because it's too expensive for them to locate each heir and to get the copyright permission to put the article on the machine. All right, I've got it all out now I'd like your response.
Laurence E. Gold: --Do I get one sentence or two?
Speaker: I'd like you to take as long as you'd like and I won't interrupt further.
Laurence E. Gold: First of all the... it is enormously different, I would suggest, to breakdown and disaggregate a collective and into component parts when the component parts are the copyright property of someone else and to take the first and necessary step for those component parts to be exploited as individual freestanding works and with the purpose of... providing that they will be exploited as freestanding works. The... every step from the first step taken by the newspapers and breaking this down into article files coding it, providing those article files to Nexis where they are further coded and inputted, not necessarily in sequence, is to create a system in which the article files can be exploited as individual files, as individual articles. This process is the print equivalent process of printing each article as an individual article which can be combined with any other of a billion articles in a new compilation which has nothing to do with the original collective work or any revised collective work or published by itself, printed and published.
Speaker: Mr. Gold, if you've had a chance to finish your answer, why is that different from sending a newspaper to a library with very detailed indexes, knowing that the library will allow people to come in and make individual copies of individual stories, individual contributions to it.
Laurence E. Gold: Well if the library--
Speaker: Has a very elaborate index system and it's part of a huge library.
Laurence E. Gold: --Yeah. Justice Stevens, all I can say is if the library is part and parcel of copying individual articles, that's a copyright infringement.
Speaker: All it does is provide the information that enables the person to pick and choose what he wants.
Laurence E. Gold: Well, there are two different questions that it seems to me you're raising. If the library simply gives someone an index and a copy of the paper and says--
Speaker: And has a xerox machine where the guy can go in and get the particular one he wants.
Laurence E. Gold: --The question is whether the library is implicated in providing the duplicating system. The law could not be clearer on that. There are elaborate provisions in the Copyright Act with regard to library permitted or created copying for a price and don't forget this is all commercialized. Nexis is not a free service. It is a publishing service creating new copies of these works for--
Speaker: So just to be sure I understand, the infringement occurs, I still want to know just when it first... the infringement occurs when the individual makes a selection and then makes a copy of his particular choice.
Laurence E. Gold: --You mean in the library example you are raising?
Speaker: Is it not the same in the electronic situation? There's no infringement and some individual picks out a particular article that was both part of a revision and part of original copyright by the author and makes a copy of that without making a copy of the whole revision.
Laurence E. Gold: Two things if I can, the copying of the work onto the disk is one kind... if we're correct, is one kind of copyright infringement.
Speaker: I thought you said earlier that if the whole E-mail was copied in electronic form that would be a revision, not an infringement. Are you changing your view on the--
Laurence E. Gold: No, I'm sorry, I don't understand what you're asking. If the... we're discussing your newspaper--
Speaker: --Correct.
Laurence E. Gold: --library example. The only infringement is if the library is actively engaged in facilitating, allowing further--
Speaker: Selling individual articles, yeah, right.
Laurence E. Gold: --Duplications for a price. In this case, there are multiple infringements before that because--
Speaker: What's the first one before that.
Laurence E. Gold: --The first one is the preparation of the article files as separate article files for the purpose of creating an overall compilation of separate article files which are to be exploited as separate article files.
Speaker: Is that analytically different from creating elaborate indices in a print library.
Laurence E. Gold: Yes, because it is part and parcel of a process for printing, if you will, for reproducing and distributing separate article files, separate articles as such. If the news... to go back to--
Speaker: Well, its equivalent in the print media, I guess, would be sending over a package of separate articles which in combination were the Washington Post of that day, but they're sent over as separate articles and each one indexed in such a way as to facilitate the obtaining of those articles without obtaining the rest of the Washington Post.
Laurence E. Gold: --Right, for a price, for sale. That is precisely what I--
Speaker: That's not what my understanding of the record is, they sell it... send it over as a bundle. They don't send it over in separate pieces. That's what I wanted to know.
Laurence E. Gold: --They send over a bundle of separate pieces.
Speaker: Well, all right, but suppose it's the exact electronic analog of the morning paper. I mean, if it's the exact electronic analog of the morning paper that they send over, I know it's technical but this is a pretty technical case and then it seems to me that it is not just sending separate articles. If they send one at ten in the morning and another at four in the afternoon it might be quite different.
Laurence E. Gold: Justice Breyer, if to use Justice Scalia's example, you send to the print shop every separate article that appeared in the newspaper and said print each one up as a separate article to be purveyed to the public, given the structure of this act, that is different from saying here is a collective whole, because--
Speaker: You have to establish that they are sent over as separate articles. What constitutes the sending over of them as separate articles? I thought it was the fact that when they're sent over they are coded and identified--
Laurence E. Gold: --Right.
Speaker: --separately, not as simply one unidentifiable part of the Washington Post of May 2nd.
Laurence E. Gold: Correct.
Speaker: Each one has a code on it which enables it to be treated as a separate article.
Laurence E. Gold: Right, and the only togetherness, if you will, is that it's our understanding, and it is my understanding of the record that after the paper is broken down and these article files are created and coded, they are transmitted or streamed as a set of distinguishable article files but they are not a unit, an electronic unit of the May 1st paper, they are a separate--
Speaker: That would be quite useless for the purposes for which they want it. They don't want the Washington Post of May 2nd. They want the ability to get individual articles.
Laurence E. Gold: --Correct. This is a purpose of commercial activity.
Speaker: Mr. Gold, before you finish I would like you to respond to Mr. Tribe's point that on your theory the microfiche, it would be the same thing, equally infringing.
Laurence E. Gold: We don't believe that the microfiche is equally infringing?
Speaker: Why not.
Laurence E. Gold: Because it is a reproduction of the whole paper in integral form. Now, if to the extent that the paper is shown rather than read, you have the whole paper, you can read what you want, but it's a one to one relationship between the number of copies that are made and the number that are--
Speaker: Isn't that a problem that with computers we can... you can simultaneously be a bundle and a whole bunch of separate things, depends on which button we decide to push whether you want the whole thing or just one.
Laurence E. Gold: --Well, that's why the fact that it is... that the system is one of articles which can be exploited as articles or in any combination of articles makes all the difference. It is not a set in any real terms of the works.
Speaker: Thank you Mr. Gold. Mr. Tribe you have two minutes remaining.
Laurence H. Tribe: Thank you, Mr. Chief Justice. Let me first say very clearly it is not the case that these newspapers disaggregate something and break it down to facilitate copyright violation. It is disaggregated from the word go, that is, when they put together the computer text file that's going to go to the printer they do it article by article because as it happens, that's what goes into a newspaper. That exact text, and you'll see it unmistakably in the record, is exactly what is sent.
Speaker: No additional code on it?
Laurence H. Tribe: Well, sometimes indexing codes, but not only for articles. You've got to be able to find this stuff. You can't just wander around inside a computer. And it is the readers guide to periodicals. That's what we've got here. Whether it is in written form or in index form, it's the same thing. So point one, they don't deliberately disaggregate. Point two, if you look at 349 A of the joint appendix, that's one of many places, I just happened to find this one, where they say they're not claiming any contributory or vicarious liability with respect to infringements by end users. Their whole theory was putting this stuff in the way that the 20th and 21st centuries has to do it is an infringement. It's really a quite Luddite theory. Their distinction with microfilm is that microfilm is a piece of something, you can see it. Well, what about the CD-ROM, then? You can't see it except with a machine. It just looks like it might be Joan Baez singing, but it turns out it's got volume upon volume of material. There's nothing fancy that's done here to facilitate violation. What they're doing is making entire bunch of material available and I didn't hear an answer to Justice Breyer's question. If we read the law the way they propose to read it and I still don't know the exact moment they think is an infringement and how analytically it differs from Justice Stevens' library example, we're going to have a serious problem with our kids doing homework and with professors of history finding out what happened in the middle of the 20th century. It seems to me that before this Court takes a step like that it should pause.
William H. Rehnquist: Thank you, Mr. Tribe. The case is submitted.