UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

THE AUTHORS GUILD, INC., on behalf of itself and its members, DERRICK BELL and LYNN BRENNER, on behalf of themselves and all other persons similarly situated, Plaintiffs, v. THE NEW YORK TIMES COMPANY, Defendant.

JURY TRIAL DEMANDED

CLASS ACTION COMPLAINT

Plaintiff The Authors Guild, on behalf of its members, and named Plaintiffs Derrick Bell and Lynn Brenner (collectively “Named Plaintiffs”), individually and on behalf of all other persons similarly situated, by their attorneys, allege as follows:

1. Plaintiffs bring this action pursuant to the Copyright Act of 1976 as amended, 17 U.S.C. § 101, et seq., for damages and injunctive relief for infringement of copyright.

JURISDICTION AND VENUE

2. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, and 28 U.S.C. § 1338(a).
3. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) and (c), since Defendant is subject to personal jurisdiction in this judicial district, and pursuant to and 28 U.S.C. § 1400(a) since Defendant and its agents reside and may be found in this judicial district.

PARTIES

The Associational Plaintiff

1. Associational Plaintiff The Authors Guild is a not-for-profit corporation organized under New York law and having its place of business at 330 West 42nd Street, New York, New York. The Authors Guild has three categories of membership: “Regular Members” are book authors published by an established American publisher who have had a book in print within the last seven years, and freelance writers who have published three works of fiction or non-fiction in a periodical of general circulation within the last eighteen months; “Associate Members” are authors who have a contract with an established American publisher for a work not yet published, and “Members-at-Large” are literary agents, heirs, trustees or executors of the estates of deceased members, attorneys and accountants representing authors and book authors whose books have been out-of-print for more than seven years. Only Regular Members have voting rights in The Authors Guild. The Authors Guild has in excess of 8,000 members.
2. The activities of The Authors Guild include reviewing members’ publishing and agency contracts; intervention in publishing disputes involving authors’ rights; providing advice to members of developments in the law and in publishing that affect their rights, and advocating legislation in matters affecting freedom of expression, copyright, taxation and other issues affecting authors. The rights of book authors and freelance writers that The Authors Guild seeks to vindicate in this action are rights that its members possess individually.

The Named Plaintiffs

3. Named Plaintiff Derrick Bell (“Bell”), who resides in New York, New York, is a professor of law. He is presently a Visiting Professor at New York University Law School. Mr. Bell also is a professional author who has written numerous books and freelance articles. His books include Afrolantica Legacies, Third World Press (1998) and Constitutional Conflicts Anderson Press (1997). Mr. Bell also has published numerous articles as a freelance journalist which he owns the copyrights to, including several articles which were published in The New York Times and The Boston Globe, to which he owns and has registered the copyrights. The articles of Mr. Bell published in The New York Times include “A Commission on Race? Wow,” June 14, 1997; “Et Tu, A.C.L.U.?” July 18, 1996; “CIVIL RIGHTS: To Make A Nation Whole,” September 13, 1987; and “REAGAN AND BLACK RIGHTS,” November 25, 1980. Mr. Bell has never granted a license or otherwise consented to the reproduction, distribution or any other use of his works in Defendant’s or any other electronic database. Nevertheless, Defendant has reproduced and distributed and continues to reproduce and distribute Mr. Bell’s works in its electronic database. The freelance works written by Mr. Bell were included in collective works that were copyrighted by the publisher.
4. Named Plaintiff Lynn Brenner (“Brenner”), who resides in Brooklyn, New York, is a professional author who has written freelance articles, including the following works for which she owns and has registered the copyrights, and which were published in The New York Times: “A Time for Bargains in Co-op Insurance,” Sunday, June 25, 1989; “Home Loans By Phone,” Sunday July 2, 1989; “Making College Ends Meet ,” Sunday November 5, 1989; “Freshman Blues,” Sunday January 7, 1990; “Costs of Living,” Sunday August 5, 1990; and “Trade School Homework,” 1991. Ms. Brenner has never granted a license or otherwise consented to the reproduction, distribution or any other use of her works in Defendant’s or any other electronic database. Nevertheless, Defendant has reproduced and distributed and continues to reproduce and distribute Ms. Brenner’s works in its electronic database. The freelance works written by Ms. Brenner were included in collective works that were copyrighted by the publisher.
5. The plaintiff class (the “Class”) consists of freelance authors whose works originally appeared in a print publication owned or controlled by Defendant, and which were reproduced, distributed, excerpted, published, uploaded, downloaded, and/or transmitted on Defendant’s or any other electronic database without the consent of the authors and without payment to them for such uses.
6. Defendant The New York Times Company is a corporation organized under the laws of New York, with its principal place of business in New York, New York. Defendant provides information throughout the United States through print and online services, including The New York Times, The New York Times Digital, The Boston Globe, and fourteen regional daily newspapers.
7. Defendant also operates an electronic database that includes written works previously published in newspapers, magazines, and/or books, including works contributed to those publications by freelance authors, including the Named Plaintiffs and other members of the Class. Defendant has published, excerpted, reproduced, distributed, displaced, transmitted, uploaded and/or downloaded works written by freelance authors without obtaining the license or permission of such authors and without compensating such authors. Defendant has thereby infringed the copyright of works of Plaintiffs. Defendant profits from this unauthorized reproduction, distribution and other such uses.

CLASS ALLEGATIONS

8. The Class consists of all authors who, at the time of the filing of this Complaint, owned a copyright in at least one work that was created and first published in a print publication owned or controlled by Defendant after January 1, 1978, and which work was, among other things, and without limitation, reproduced, distributed, displayed, excerpted, published, uploaded, downloaded, and/or transmitted in Defendant’s or any other electronic database, all without the authorization or consent of the authors and without payment to them for such uses.
9. The Class contains two subclasses, consisting of the following:
   1. Subclass 1: All authors who are members of the general Class and who own at least one registered copyright with an effective registration date that is earlier than the commencement of an act of infringement of the registered work committed by Defendant, or that was registered within three months after the first date of publication of the work;
   2. Subclass 2: All authors who are members of the general Class and whose copyrights do not have an effective registration date that is earlier than the commencement of an act of reproduction and distribution of the registered work committed by Defendant, and that was not registered within three months after the first publication of the work.
10. The exact number of members of the Class and each subclass is not known to the Named Plaintiffs, but, according to Defendant, the Class consists of approximately 27,000 persons. The Class and each subclass is so numerous that joinder of individual members herein is impracticable.
11. Common questions of law and fact predominate over any questions affecting only individual members of the Class. Common issues of fact and law include:
    1. 1. whether Defendant infringed the copyrights of the Named Plaintiffs and the Class members by reproducing and distributing works without obtaining a license or permission of the Named Plaintiffs and the Class;
    2. 2. whether such infringement was willful;
    3. 3. whether the members of the Class have sustained damages and, if so, the proper measure of such damages.
12. 12. The claims of the Named Plaintiffs are typical of the claims of the Class, in that the claims of all members of the Class, including the Named Plaintiffs, depend on a showing of the acts and/or omissions of defendant alleged herein.
13. 13. No conflict exists as between the Named Plaintiffs and the other members of the Class with respect to this action or the claims for relief.
14. 14. The Named Plaintiffs are able to and will fairly and adequately protect the interests of the Class.
15. 15. The Named Plaintiffs are represented by counsel experienced in complex litigation and class action litigation.
16. 16. The prosecution of separate actions by individual class members would create a risk of inconsistent or varying adjudications with respect to individual members of the Class, which would establish incompatible standards of conduct for Defendant.
17. 17. Defendant has acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive relief with respect to the Class as a whole.
18. 18. A class action is superior to the other available methods for fair and efficient adjudication of the controversy.

COUNT I

(Asserted by the Named Plaintiffs)

19. 19. The Named Plaintiffs repeat and reallege the allegations above as if fully set forth herein.
20. 20. Defendant has infringed the copyrights of the Named Plaintiffs and the Class in their individual works by, among other things, and without limitation, reproducing, distributing, displaying, excerpting, publishing, uploading, downloading, and/or transmitting such works in Defendant’s electronic database without a license or other permission from the Named Plaintiffs or the Class, and without compensating the Named Plaintiffs or the members of the Class for such uses. Defendant also has infringed the copyrights of the Named Plaintiffs and the Class by purporting to license to electronic databases and other electronic media the copyrighted works of the Named Plaintiffs and the Class, without their authorization or consent.
21. 21. As a result of such infringement, the Named Plaintiffs and the members of the Class have suffered damages and Defendant has made profits.

COUNT II

(Asserted by all Plaintiffs)

22. 22. Plaintiffs repeat and reallege the allegations above as if fully set forth herein.

23. 23. By, among other things and without limitation, reproducing, distributing, displaying, excerpting, publishing, uploading, downloading, and/or transmitting by electronic and other means the works of the Named Plaintiffs and the Class, all without the consent of the authors and writers and without payment to them for such uses, Defendant continuously for a number of years has infringed the copyrights of the Named Plaintiffs and the Class as herein above alleged. Defendant also has infringed the copyrights of the Named Plaintiffs and the Class by purporting to license their copyrighted works on electronic databases and other electronic media without the authorization or consent of the Named Plaintiffs or the Class. Further, Defendant is continuing at present and will continue in the future to so infringe such copyrights unless restrained by the Court.
24. 24. Plaintiffs are entitled to an injunction barring Defendant from continued infringement of the copyrights of the Named Plaintiffs and the Class.

    WHEREFORE, Plaintiffs and the Class demand judgment against Defendant as follows:

    1. 1. For certification of the Class, and each subclass;
    2. 2. For an injunction prohibiting Defendant from infringing the copyrights of the Named Plaintiffs and the Class;
    3. 3. For statutory damages and/or actual damages for the infringement of the copyrights of the Named Plaintiffs and the Class members and/or an award of Defendant’s infringing profits;
    4. 4. For permanent injunctive relief requiring Defendant to compensate the Named Plaintiffs and the Class members for future electronic republication of their copyrighted works;
    5. 5. For costs and attorneys’ fees; and
    6. 6. For such other and further relief as the Court deems equitable and proper.

Dated: July 3, 2001

Fredric S. Newman (FN-3174)
Howard A. Wintner (HW-6361)
Hoguet Newman & Regal, LLP
10 East 40th Street
New York, NY 10016
(212) 689-8808

Michael J. Boni
Robert J. LaRocca
Neil Glazer
Joanne Zack
Kohn, Swift & Graf, P.C.
One South Broad Street
Suite 2100
Philadelphia, PA 19107
(215) 238-1700

Counsel for Plaintiffs and the Class