their judicial gloss as the source of law addressing issues concerning cyberspace 2.Analogies The courts' choices of precedents depend on what they analogize to They may analogize to the facts of the cases, or to the applicable legal principles These approaches are demonstrated in the case of the freelancers copyrights Freelance authors sell their writings to publishers but retain the copyright materials may republish the materials under a"privilege"to "reproduce"and l ed to these pieces. Under copyright law, publishers who have purchased copyrigh distribute" the writings as part of a larger whole. For example, publishers may reproduce their periodicals, which include the copyrighted freelancer materials When electronic databases appeared on the scene, courts have held that the ublishers' privilege does not apply to electronic republication In Tasini v. New York Times Co. the defendant publisher reproduced freelancers' pieces in NEXIS--a very large electronic database--and in a CD- ROM. The question was whether these computer versions were privileged. The District Court held that they were so privileged. The Second Circuit reversed, 4 and the Supreme Court affirmed the Circuit Courts decision. The privilege does not cover these new circumstances The interesting point, for our purpose, is the courts use of analogies. The District Court sought an analogy to legal principles. It first determined whether the database constituted an infringement of the freelancers copyrights, and then whether the database was privileged as a"revision"of the copyrighted materials Since the distinguishing features of the original periodicals were retained in the database the court considered whether these aspects were preserved electronically and held that the selected articles were included in the periodicals were substantially similar" to the electronic version. Infringement was established Then, the court turned to the privilege, and held that the electronic reproduction was a"revision "to which the publishers privilege applied. The question, said the court, was"whether the electronic reproductions retain enough of defendant periodicals to be recognizable as versions of those periodicals. "Noting that the NEXIS database retained the publishers' original selection of articles, the court I agree that these sources are affected by and may incorporate the parties'intentions express or See Wendy J. Gordon, Fine-Tuning Tasini: Privileges of Electronic Distribution and Reproduction, 66 BROOKLYN L REV. 473, 477-80(2000) Tasini v N.Y. Times Co., 972 F Supp. 804(SD N.Y. 1997), rev d, 206 F 3d 161(2dCir. 999,ad, 4 Tasini v N.Y. Times Co., 206 F 3d 161(2d Cir. 1999), aff'd, 121 S Ct 2381(2001) N.Y. Times Co v. Tasini, 121 S Ct 2381 (2001) Id at 82 72 F Supp. at 821-25. 66 their judicial gloss as the source of law addressing issues concerning cyberspace.11 2.Analogies The courts’ choices of precedents depend on what they analogize to. They may analogize to the facts of the cases, or to the applicable legal principles. These approaches are demonstrated in the case of the freelancers’ copyrights. Freelance authors sell their writings to publishers but retain the copyright to these pieces. Under copyright law, publishers who have purchased copyrighted materials may republish the materials under a “privilege” to “reproduce” and to “distribute” the writings “as part of a larger whole.” For example, publishers may reproduce their periodicals, which include the copyrighted freelancer materials.12 When electronic databases appeared on the scene, courts have held that the publishers’ privilege does not apply to electronic republication. In Tasini v. New York Times Co. the defendant publisher reproduced freelancers’ pieces in NEXIS -- a very large electronic database -- and in a CD￾ROM. The question was whether these computer versions were privileged. The District Court held that they were so privileged.13 The Second Circuit reversed,14 and the Supreme Court affirmed the Circuit Court’s decision.15 The privilege does not cover these new circumstances. The interesting point, for our purpose, is the courts’ use of analogies. The District Court sought an analogy to legal principles. It first determined whether the database constituted an infringement of the freelancers’ copyrights, and then whether the database was privileged as a “revision” of the copyrighted materials. Since the distinguishing features of the original periodicals were retained in the database the court considered whether these aspects were preserved electronically and held that the selected articles were included in the periodicals were “substantially similar”16 to the electronic version.17 Infringement was established. Then, the court turned to the privilege, and held that the electronic reproduction was a “revision” to which the publishers’ privilege applied. The question, said the court, was “whether the electronic reproductions retain enough of defendants’ periodicals to be recognizable as versions of those periodicals.” Noting that the NEXIS database retained the publishers’ original selection of articles, the court 11 I agree that these sources are affected by and may incorporate the parties’ intentions express or implied. 12 See Wendy J. Gordon, Fine-Tuning Tasini: Privileges of Electronic Distribution and Reproduction, 66 BROOKLYN L. REV. 473, 477-80 (2000). 13 Tasini v. N.Y. Times Co., 972 F. Supp. 804 (S.D.N.Y. 1997), rev’d, 206 F.3d 161 (2d Cir. 1999), aff’d, 121 S. Ct. 2381 (2001). 14 Tasini v. N.Y. Times Co., 206 F.3d 161 (2d Cir. 1999), aff’d, 121 S. Ct. 2381 (2001). 15 N.Y. Times Co. v. Tasini, 121 S. Ct. 2381 (2001). 16 Id. at 822. 17 972 F. Supp. at 821-25