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Greenberg v. National Geographic Society (2008)

On June 13, 2007, the US Court of Appeals for the Eleventh Circuit reversed an earlier ruling (PDF) in the case Greenberg v. National Geographic Society. This is a very important ruling for publishers who want to digitize their works. This ruling permits digital versions of the works (e.g., print or microfilm) if no changes are made to them. Greenberg, a photographer sued National Geographic for including his works in a CD-ROM compilation of all of the issues of theNational Geographic magazine. An earlier ruling by the US Court of Appeals for the Eleventh Circuit ruled against the National Geographic Society. An appeal to the Supreme Court was rejected and the case was again before the Eleventh Circuit, which on June 30, 2008, held that National Geographic's reproduction of its magazine electronically was privileged under the federal copyright statute.

On August 30, 2001, ARL, the American Library Association (ALA), the American Association of Law Libraries (AALL), and the Medical Library Association (MLA) jointly filed an amicus brief (PDF) in support of the National Geographic Society's appeal to the US Supreme Court. The brief was filed due to concerns that the Eleventh Circuit decision could hinder the use of digital technologies. The Copyright Act is "media-neutral," and libraries believe that it should allow publishers to take advantage of new technologies to preserve and distribute creative works to the public.

ALA, ARL, AALL, and MLA view the CD-ROM of the National Geographic magazine as no different than if a microfilm version of the magazine had been made. Copyright protection extends to works in any tangible medium of expression. The original collective works that are reproduced in digital facsimiles constitute a permissible revision and are not themselves changed by the transformation from paper to the CD-ROM version. In this case, the photographs at issue appear in the CD-ROM version in the exact positions (along with text and advertising) in which they appeared in the original print version of the magazine.

Libraries also support the right of scholars and researchers to combine pre-existing works with the necessary software to provide a searching capability. Under the Eleventh Circuit’s decision, no CD-ROM or digital technology that requires the addition of such software could arguably ever qualify as a permissible revision. On June 6, 2006, AALL, ALA, ARL, MLA, the Society of American Archivists (SAA), and the Special Libraries Association (SLA) jointly filed an amicus brief (PDF) in support of the National Geographic Society, urging the Eleventh Circuit to reverse its judgement. On October 18, 2007, AALL, ALA, ARL, MLA, the National Association of State Universities and Land-Grant Colleges, SAA, and SLA filed an amicus brief (PDF) urging the Eleventh Circuit to grant an appeal re Greenberg v. National Geographic. Legal intern for ARL, Ben Grillot, has also written a report summarizing the case, "A Victory For Media Neutrality: The Eleventh Circuit’s En Banc Decision in Greenberg v. National Geographic Society" (PDF) (July 9, 2008).

Greenberg v. National Geographic Society



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