Just a few days ago, The New Yorker magazine released ''The Complete New Yorker," a $100, eight-DVD set that allows you to read, and print a copy of, every article that has ever appeared in the magazine. To get an idea of how the TCNY might work on your computer, a free demo is available at thenewyorkerstore.com.
So I was wondering: What gives them the right to do this? It's not possible that famous New Yorker contributors like Rachel Carson, Robert Benchley, Charles Addams, or even the young John Updike signed over electronic rights to the Tilley gang. The answer, as our friend John Roberts might say, is not a matter of settled law.
Edward Klaris, TCNY project director and also the magazine's general counsel, explains that The New Yorker can publish the DVDs because of a Second Circuit Court of Appeals decision in March involving National Geographic, which put out a digital version of the ''Complete National Geographic" in 1997. ''They were sued," Klaris says, ''and the Second Circuit held that an image-based compilation in context, like theirs, was protected" by the Copyright Act. ''As long as you maintain the integrity of your collected work, you can publish it in any medium. We have a copyright on that package."
But this situation looks very different over at the National Geographic Society, which had to take CNG off the shelves two years ago and has not put it back on sale since. An exasperated executive vice president Terry Adamson explains that the Society has spent ''millions of dollars" defending its right to publish its best-selling digital tome in several courts, with no firm decision yet rendered. ''We've lost the opportunity of having this product in homes all over the world," Adamson says. ''I think that's a huge loss."
Here's what happened to the Geographic: In 1997 a photographer named Jerry Greenberg challenged the Geographic's right to resell his work in the digital compilation. He won in the 11th Circuit Court of Appeals, and the Supreme Court declined to review the case. Portions of the case are still being litigated. Then several other plaintiffs (including ''Into Thin Air" author Jon Krakauer) filed similar suits, albeit in a different district. They lost.
What happened? Tasini happened, the landmark Tasini v. New York Times Co. Supreme Court decision that pitted my old racquetball partner, freelance writer Jonathan Tasini, against the company that owns The Boston Globe. In that decision, the Supreme Court ruled that the Times Co. would have to pay freelancers if it sold individual articles from its database. But -- and this is a big but -- the Times and everybody else retained the right to publish and sell archival databases, like microfilms, that preserved the package, or the context of the original newspaper, without paying outside contributors.
Earlier this year, in what I am calling the Krakauer cases, the Second Circuit applied the ''Tasini standard" to National Geographic. ''Because the original context of the magazines is omnipresent in the CNG," the court ruled, ''the CNG is a privileged revision" under the Copyright Act. Meaning Krakauer & Co. lose, and National Geographic is free to sell its product. But the company doesn't see it that way. Given that the 11th Circuit ruled in favor of photographer Greenberg, Adamson says, ''you have totally divergent views of the same statutory provision" in different courts. ''We want the Supreme Court to hear it." Until the law gets settled, he adds, CNG will not go back on sale.
Klaris knows both decisions well, and views ''the 11th Circuit decision [Greenberg] as fundamentally undermined by the Tasini ruling." He adds that no New Yorker contributor has contacted the magazine to complain about TCNY. I spoke with two smart copyright lawyers who were unable to state definitively which side had the correct interpretation of this dusty little corner of copyright law.
So does the ghost of Rachel Carson have a cause of action? Remember the lawyer's motto: Every proposition is arguable.
Alex Beam is a Globe columnist. His e-dress is beam@globe.com.
