Attorneys for the New York Times and its co-defendants have filed a petition for rehearing with the Second Circuit Court of Appeals in Manhattan in an effort to convince the court to reconsider a recent ruling that publishers cannot include the works of freelance print contributors in electronic databases without their explicit permissions (News, Oct. 4). The petition requests an en banc review by all 21 judges of the second circuit.
The second circuit's unanimous decision overturned a previous ruling against Jonathan Tasini, president of the National Writers Union, and nine co-plaintiffs who filed the original copyright infringement suit against the publishers in 1994.
The ruling could make publishers liable for millions of dollars in payment to freelance writers. Indeed, the NYT's petition acknowledges "enormous potential liability." It also claims the ruling will force publishers to pull freelance material from databases, "leaving holes in the historical record" and consigning researchers "to paper copies."
The NYT's brief complains that the court made errors in defining what constitutes a "revision" of a published work; that the court erroneously emphasizes "unknowable" contributory infringement rather than direct infringement; and questions the court's "sweeping assumption" that a database of articles amounts to a completely new work.
Patsy Felch, lawyer for Tasini and the co-plaintiffs, told PW that the granting of an en banc review usually required "something astounding, a political hot potato or the revising of a law. It would be unusual for the court to agree to rehear a unanimous decision, written by its chief judge."