dissenting,
in which WILSON, Circuit Judge, joins, and in which EDMONDSON, Chief Judge, and ANDERSON, Circuit Judge, join in Part A only:I respectfully dissent. I also concur in Judge Anderson’s dissent.
The controlling issues and facts in this case have not been fully identified by the majority — hence, it is not surprising that it reaches the wrong conclusions.
Putting aside the legal analysis or rationales in play in this case, the reader should understand the pecuniary or commercial positions of the parties and their constituencies in this dispute. On one side there are the artists, authors, and other creators of copyrightable works who argue that their creative contributions to collective works already exploited by publishers should not be further exploited by those publishers without sharing the profits realized by that further commercial exploitation. These authors, artists, and other creators contend that the publishers now want to ignore the economic compromise— the balancing of equities — that is reflected *1259in 17 U.S.C. § 201(c) of the 1976 Copyright Act.1 Hereinafter, all statutory citations are to Title 17 of the U.S.Code, unless otherwise indicated.
On the opposite side, the publishers are seeking to generate new revenues by repackaging an old product — the “old wine in new bottles” paradigm; updated in this instance with an easier access twist-off metal cap rather than a cork. Here the new packaging of the old content, replicated but unrevised, in electronic medium is both cost-efficient, profitable, and attractive to a new, computer-sawy generation of consumers. Moreover, the profits are enhanced exponentially when the publisher can exclude the contributing artists, authors, and creators of the content from sharing in those profits. At the end of the day this case is not about education, access by the masses, or efficient storage and preservation — it is about who gets the money. The legal arguments and nonlegal arguments on both sides, not surprisingly in a free enterprise society, reduced to these essentials are all about who is paid for their contributions and efforts. Accordingly, it is probative and pertinent to examine the Congressional motivation for passage of the statutory section— § 201(c) — central to the present dispute. If the motivating idea and intent of Congress was to require the publishers to share profits from a new or different product (in copyright terms — a “work”) placed on the market, then the authors, artists, and creators win. If the intent of Congress was to allow an up-to-date, modern, handy, and desirable incarnation of the previously exploited work, then the publishers win. I will endeavor to demonstrate that the authors, artists, and creators should share in the publisher’s prof*1260its and that the arguments, both legal and policy, by the publishers are bereft of logic, legal merit, and are totally disingenuous.2
There are at least three distinct legal rationales that support affirmance of the judgment of the district court which followed our court’s directions in Greenberg v. Nat’l Geographic Soc’y, 244 F.3d 1267 (11th Cir.2001) (“Greenberg I”). Each of these legal rationales are based upon core copyright law principles applied to the facts existing in this record. Application of each such rationale demonstrates the erroneous conclusions and logic of the majority. The three rationales, succinctly stated, are as follows:
(A) the CNG is a “new,” “entirely different” collective work to which the putative § 201(c) privilege does not attach and does not reproduce and distribute articles as “part of that collective work” or “any revision” thereof;
(B) the National Geographic Society (“the Society”) cannot transfer its privilege to third parties to exercise; and,
(C) the Society and its eo-infringers have undertaken to display Green-berg’s protected works publicly by means of projection on a computer screen, a non-privileged exercise by a § 201(c) grantee.
In the corresponding sections of my dissent, I shall demonstrate that the Society and its co-defendants have infringed the registered copyrights of plaintiff Green-berg. I shall endeavor to demonstrate the CNG is a non-qualifying (per § 201(c)) “new collective work,” not due to its “revision” or “non-revision” status, but because it is a rote copy of the magazines scanned onto CD-ROMs (an analogous replica to a microform replica) which has been combined with at least two copyrightable computer programs, each a free-standing and sui generis copyrightable work.
Necessary to my discussion that follows are some material record facts which have been omitted by the majority. In September 1996, National Geographic Interactive3 (“NGI”) entered into a Distribution Agreement with Mindscape, Inc., a Delaware corporation. “Mindscape is a computer software publisher and distributor which collaborates with the Society in its efforts to bring its products to the public in the digital environment.” Rl-19 at 2. Pursuant to the Distribution Agreement, the Society and Mindscape developed the product marketed as the CNG. The CNG is a thirty CD-ROM compendium that collects an edition of each issue of The National Geographic Magazine (“the Magazine”) (“that particular collective work”) from 1888 to 1996. Under the “Distribution Agreement,” NGI would receive royalties on sales of the CNG by Mindscape.4 *1261R5-284, Joint Trial Exh. 323 at 13-15.
In December 1996, the Society entered into a “Trademark and Copyright License Agreement” (“License Agreement”) with National Geographic Ventures, Inc. (“NGV”), a for-profit subsidiary of the Society. The License Agreement was premised upon the Society’s decision to “to establish its electronic publishing and cartographic operations as units of a separate but wholly owned taxable subsidiary.” R5-284, Joint Trial Exh. 323 at 1. Under the License Agreement, the Society granted NGV a “royalty bearing license for certain ... copyrighted materials of [the Society],” including “[t]he Archive of National Geographic Magazine for reproduction in archival form only, without manipulation or alteration.” Id. at 1, Att. B (emphasis mine).
To create the CNG, the Society entered into an agreement with Dataware Technologies, Inc. (“Dataware”), dated 15 August 1996, to digitally scan the pages of the Magazine.5 The agreement authorized Dataware to “develop a custom CD-ROM template, including integration of a custom set of interfaces to display magazine pages and ... JPEG images of the scanned pages.” R4-203 at 8. “Each issue [of the Magazine] was [ ] scanned, page by page, into a computer system. The scanning process created an exact image of each page as it appeared in the Magazine.” Rl-23 at 2 (emphasis mine).
Mindscape developed a computer program (the “Program”), which is contained on each CD-ROM of the CNG, to allow the user of the CNG to select, view, and navigate through the images of the Magazine replica (the “pages” of the magazines) on the CD-ROM. Greenberg I, 244 F.3d at 1269.6 Without the Program, the pages could be stored on a CD-ROM, but they would not be efficiently accessible to the user. Id. at 1270. In creating the Program, Mindscape incorporated two separate, copyrighted computer programs: the “CD Author Development System,” which is a search engine created by Dataware, and the “PicTools Development Kit,” which is a storage mechanism created by *1262Pegasus Imaging Corp. for compressing and decompressing the images scanned onto each disc. Id. at 1269-70. Minds-cape has not registered a copyright in the Program, id. at 1270 n. 3, but the claims of copyright for both the CD Author Development System and the PicTools Development Kit, respectively, have been registered with the Copyright Office. Id. at 1269-70.
Part of the Program consists of “a search engine based on the National Geographic Society proprietary indexing scheme.”7 Rl-20 at Ex. B, p. 2. The search engine “contains the same information as the print indices published by the Society,” RAcc# 2-230 at 10, and it allows the user of the CNG to access articles “by topic, title, key word, or contributor.” Greenberg I, Appellants’ Br. at 7. The Program also contains “a feature for saving search results,” R4-203 at 10, which would allow a user to repeatedly access the results of a former search, but “[t]here is no text-based search capability.” Green-berg I, Appellees’ Br. at 25.
Using any CD-ROM of the CNG, a user therefore can locate, isolate, copy, and print or transmit any photograph through the following steps. First, run the CD-ROM using Windows Explorer® (extant at the publication of the CNG) and open the folder labeled “IMAGES” from within the CD-ROM. Then, open one of the subfold-ers contained in the IMAGES folder. Each image contained in the subfolder will be displayed, and each such image is a single scanned page of an issue of the Magazine. Next, right-click on an image, place the cursor over “Open With,” and then choose “Paint.” Using the “Select” tool provided by “Paint,” select only the photograph, omitting all other material contained in the image. Right-click in the selected photograph and choose “Copy.” Then, from the “File” menu in the toolbar, left-click “New,” which creates a new blank document. Within the new document, right-click and choose “Paste.” The new document will now contain only the photograph extracted from the scanned page, free of any of the other material originally contained on the page as it was scanned into the CD-ROM. Copies of the photograph now can readily be made and printed or transmitted. See Rl-20, Exh. A.
A.
The holding in New York Times Company, Inc. v. Tasini (“Tasini”), 533 U.S. 483, 488, 121 S.Ct. 2381, 2384-85, 150 L.Ed.2d 500 (2001) is as follows:
In agreement with the Second Circuit, we hold that § 201(c) does not authorize the copying at issue here. The publishers are not sheltered by § 201(c), we conclude, because the databases reproduce and disti’ibute articles standing alone and not in context, not “as part of that particular collective work” to which the author contributed, “as part of ... any revision” thereof, or “as part of ... any later collective work in the same series.” *1263Both the print publishers and the electronic publishers, we rule, have infringed the copyrights of the freelance authors.
(emphasis mine).
The Society desires to license the use of certain photographs in a new assembly of its previously published magazine series, but does not want to pay the contributing photographers to do so. To succeed, the CNG must qualify for the protection of the privilege extended by § 201(e). However, the assembly of “[those] particular collective work[sT — 1,200 magazines — is a far different undertaking, in a practical as well as a copyright sense, than the permitted § 201(c) reproduction or republication of “that particular collective work" — each issue of the magazine.
Until the case returned to our court for oral argument, generally the appellants traveled on the “revision” prong of § 201(c).8 Now, glossing over or misstat*1264ing the meaning of “that particular collective work” (which is limited to, and descriptive of, each individual issue of the magazine), they claim the Society may license a reproduction or republication of all issues, collectively in a new anthology or aggregation, so long as each replication is in “context” per Tasini Recall, however, that Tasini factually was a “disassembly” case not an “assembly” case. The Court focused on textual and pictorial context, in a threshold examination, to determine whether a “particular collective work” even existed in order to ascertain whether the § 201(c) “revision privilege” was available. The Court determined that it was not, and it never reached the controlling issue presented in our case as to whether an assemblage is privileged under § 201(c). As discussed below, an assemblage of a replica and copyrightable computer programs is not privileged because a “new collective work” is expressly not included in § 201(c) per House Report No. 94-1476, at 122, as reprinted in 1976 U.S.C.C.A.N. 5659, 5737 (hereinafter “H.R. Rep.”) and each “particular collective work” (each issue of the Magazine) is not part of a “revision.” Thus the Society has failed to grapple with the reality that such a heretofore non-existent aggregation of the 1,200 magazines has now been assembled into what constitutes a “new collective work.”9 The Society represented, in its claim of copyright for the CNG (“108 Years of National Geographic Magazine on CD-ROM”), that the CNG is a “Compilation of Pre-Existing Material Primarily Pictorial” under section 6 [entitled “Derivative Work Or Compilation”]. Per H.R. Rep., cited by the Second Circuit, the Supreme Court, and the Greenberg I panel, this assemblage actually constitutes a “new collective work” which is not embraced, and is expressly excluded, from the scope of § 201(c).10 This assemblage is a new product and a public dissemination that totally eviscerates the economic value of the contributors’ rights under § 201(c). If the Society is also relying on the second, or “revision” prong of § 201(c), as it has (from time to time) until now, its argument fails because no revisions have been made to the magazines. No revisions have been made because nothing has been “revised.”11 Accordingly, since § 201(c) specifically provides that a reproduction and distribution can only occur “as part of’ a later edition or revision, a publisher infringes a freelance contributor’s work by either a reproduction or a distribution that takes place not “as part of a revision.” Ryan v. CARL Corp., 23 F.Supp.2d 1146, 1149 n. 2 (N.D.Cal.1998) (Judge Fern Smith got this important aspect of the case right even before the Second Circuit and Supreme Court in Ta-sini).
*1265As the appellants have conceded and recognized they must demonstrate that the CNG constitutes a “collective work” that each of the defendants12 are privileged under § 201(c) to reproduce and distribute.13 By its express terms, § 201(c) protects and refers to only “collective works” and confers a “privilege” only to “the owner of the copyright in the collective work.” § 201(c) (emphasis mine); see also H.R. Rep. (referencing § 201(c) and the definition of “collective work” in § 101 and stating that § 201(c) “deals with the troublesome problem of ownership of copyright in contributions to ‘collective works.’ ”) Under these statutory definitions,14 as clarified by the referenced legislative history, the CNG is a “new collective work.” Before examining why the CNG is a new collective work, recall that the Tasini case involved a factual situation that was totally different from the facts in this case. That ease was a disassembly case not an assembly case— as is this case. This assemblage know as “the CNG” does not constitute a privileged revision because it is, at the very least not a revision and, moreover, is a new and different collective work that Congress expressly exempted from the coverage of § 201(c)15 and does not constitute a revision, much less “part of ... any revision” of “that particular collective work.” Tasini, 533 U.S. at 488, 121 S.Ct. at 2384-85.
The Second Circuit decision in Tasini, affirmed by the Supreme Court, began with the undisputed assumption that: “[T]he electronic databases are neither the original collective work — the particular edition of the periodical — in which the [a]uthors’ articles were published!,] nor a later collective work in the same series.” Tasini 206 F.3d 161, 166 (2d Cir.2000), aff'd, 533 U.S. 483, 121 S.Ct. 2381, 150 L.Ed.2d 500 (2001).16 That reasoning left only the “revision” prong of § 201(c) re*1266maining to the publishers. Then, the Second Circuit rejected the publishers’ contention “that each database constitutes a ‘revision’ of the particular collective work in which each [a]uthor’s” contribution first appeared. Id. at 166. The Second Circuit correctly explained — just as our Greenberg I opinion agreed — “[t]he most natural reading of the ‘revision’ of ‘that collective work’ clause is that Section 201(c) protects only later editions of a particular issue of a periodical, such as the final edition of a newspaper.” Id. at 167.
This analysis by the Second Circuit also correctly observed, interpreting the legislative history explaining the introduction of § 201 into the then-new 1976 Copyright Act, that: “the ‘revision’ clause in Section 201(c) was not intended to permit the inclusion of previously published freelance contributions ‘in a new anthology or an entirely different magazine or other collective work,’ ie., in later collective works not in the same series.” Id. (citing H.R. Rep. at 122-23). The panel emphasized that: permissible uses under § 201(c) “are an exception to the general rule that copyright vests initially in the author of the individual contribution”; and warned that “[w]ere the permissible uses under Section 201(c) as broad and as transferable as [publishers] contend, it is not clear that the rights retained by the [a]uthors could be considered ‘exclusive’ in any meaningful sense.” Id. at 168. The Tasini panel also noted in a footnote that: “Section 201(c) grants collective works authors ‘only’ a ‘privilege’ rather than a ‘right.’ Each of these terms connotes specialized legal meanings, and they were juxtaposed by Congress in the same sentence of Section 201(c).” Id. at 168 n. 3.
Thus, both the Second Circuit in Tasini and our court in Greenberg I concluded that a “new anthology” or “new collective work” was not within the “revision” privilege of § 201(c) or otherwise protected within the limited scope of § 201(c). The Supreme Court’s affirmance of the Second Circuit’s opinion in Tasini, not only failed to diminish the force and effect of both the Second and Eleventh Circuit opinions that had issued before the Court ruled, but rather fortified those respective courts’ analyses of how new collective works (“other collective works”) are beyond the scope of the § 201(c) privilege.17 Specifically, the Court explained that:
*1267§ 201(c) adjusts a publisher’s copyright in its collective work to accommodate a freelancer’s copyright in her contribution. If there is demand for a freelance article standing alone or in a new collection, the Copyright Act allows the freelancer to benefit from that demand; after authorizing initial publication, the freelancer may also sell the article to others.
Tasini, 533 U.S. at 485, 121 S.Ct. at 2383 (emphasis mine). The Court stressed that a principal component of the underlying policy rationale for finding that the publisher did not enjoy any § 201(c) privilege was that:
It would scarcely “preserve the author’s copyright in a contribution” as contemplated by Congress, [H.R. Rep. at 122], if a newspaper or magazine publisher were permitted to reproduce or distribute copies of the author’s contribution in isolation or within new collective works.
Tasini, 533 U.S. at 497, 121 S.Ct. at 2389 (citation omitted) (emphasis mine). The Tasini Court emphasized this copyright policy in protecting the author’s (here photographers’) rights by observing:
The [publishers’ encompassing construction of the § 201(c) privilege is unacceptable, we conclude, for it would diminish the [ajuthors’ exclusive rights in the [articles.
Id. With that policy in mind, the Court moved to the actual test to be applied “[i]n determining whether the [articles have been reproduced and distributed ‘as part of a ‘revision’ of the collective works in issue.” Id. (emphasis mine). The Court stated that it “focus[es] on the [articles as presented to, and perceptible by, the user of the [databases.” Id. at 499, 121 S.Ct. at 2390.
Under this analytical approach, the Court explained:
One might view the articles as parts of a new [aggregation]18 — namely, the entirety of works in the [d]atabase. In that [aggregation], each edition of each periodical represents only a miniscule frac*1268tion of the ever-expanding [aggregation]. The [aggregation] no more constitutes a “revision” of each constituent edition than a 400-page novel quoting a sonnet in passing would represent a “revision” of that poem. “Revision” denotes a new “version,” and a version is, in this setting, a “distinct form of something regarded by its creator or others as one work. The massive whole of the [aggregation] is not recognizable as a new version of its every small part.”
Id. at 500, 121 S.Ct. at 2391 (citation omitted). The Court concluded: “Those [databases [the aggregation] simply cannot bear characterization as a ‘revision’ of any one periodical edition.” Id. at 501 n. 9, 121 S.Ct. at 2391 n. 9 (emphasis mine).
A review of the Tasini opinions, both in the Second Circuit and the Supreme Court, as well as our Greenberg I opinion, discloses that all three opinions cite to the same House Judiciary Committee Report for interpretation of the last clause of § 201(c), the meaning of “revision,” and the definition of its scope.19 The relevant House Report passage explains:
The basic presumption of section 201(c) is fully consistent with present law and practice, and represents a fair balancing of equities. At the same time, the last clause of the subsection, under which the privilege of republishing the contribution under certain limited circumstances would be presumed, is an essential counterpart of the basic presumption. Under the language of this clause a publishing company could reprint a contribution from one issue in a later issue of its magazine, and could reprint an article from a 1980 edition of an encyclopedia in a 1990 revision of it; the publisher could not revise the contribution itself or include it in a new anthology or an entirely different magazine or other collective work.
H.R. Rep. at 122-23, 1976 U.S.C.C.A.N. at 5737 (emphasis mine). Based upon a straight-forward reading of that legislative history, the two Tasini opinions and our Greenberg I opinion concluded that § 201(c) does not extend protection for a publisher to include an author’s or photographer’s contribution in a collective work in a new aggregation, Tasini, 533 U.S. at 500, 121 S.Ct. at 2391, or anthology (a “later collective work” in § 201(c) parlance). Tasini, 206 F.3d at 169; Tasini 533 U.S. at 496-97, 121 S.Ct. at 2389-90. Under this analysis, Greenberg’s copyrights have been infringed.
If only the Second Circuit had followed its earlier, affirmed approach in Tasini when it decided Faulkner, it would have stayed on the correct track. In stark contrast to the later Faulkner decision, the Tasini Second Circuit panel had clearly held that: “If the republication is a ‘new anthology20 or a different collective work, it is not within Section 201(c).” Id. at 169 (citing H.R. Rep. at 122-23, 1976 U.S.C.C.A.N. at 5737 (1976)). It should be noted that appellants in their briefs to this court have attempted to perpetuate an in*1269appropriate and inaccurate analysis originally introduced by the wrong question by the trial court in the Faulkner case, which is: “What then distinguishes a ‘revision’ from an ‘entirely different’ work?” Faulkner v. Nat’l Geographic Soc’y, 294 F.Supp.2d 523, 539 (S.D.N.Y.2003). The correct inquiry, reading the plain text of § 201(c) is, rather: “What distinguishes a ‘revision’ from an ‘other collective work?21 ’ ” The House Report defines it not solely as an “entirely different work,” as Judge Kaplan framed the question, but as a “new anthology or an entirely different magazine or other collective work.” H.R. Rep. at 122-23, 1976 U.S.C.C.A.N. at 5737. The Faulkner court, using an attenuated microform analogy from Tasini dicta, avoided the obvious alternate conclusion that the CNG is a new compendium, anthology, or “other collective work” and not a “revision” under § 201(c).22 The Society *1270and Mindscape cannot point to any single issue of the some 1,200 separate collective work magazines that bears anything anyone could term a “revision.” Each issue of the magazine has been slavishly and identically reproduced and lodged in a different more compact and portable/storable digital medium accompanied by a completely new moving sequence with audiovisual accompaniment (a derivative work), which is displayed on the computer screen and plays each and every time a constituent CD-ROM is booted-up on the computer. Assembled with the unedited/unrevised copies are separately copyrightable computer programs (i.e., the CD Author Development System and the PicTools Development Kit). Recall that the 25-second audiovisual clip consists of 10 different Magazine covers morphing into each other with music and sound effects including Greenberg’s “diver” photograph (a contribution or work). This sequence, which is little-discussed in the appellants’ many pages of briefs, manifestly infringed upon Greenberg’s, and the other contributing photographers’, exclusive derivative work rights under § 106(2) by using his work in new ways.
Thus, assuming arguendo that the Society can invoke the § 201(c) privilege on behalf of infringing third parties as well as defense of its own conduct, the question becomes: Does the creation of a work that never before existed (the CNG) by combining an exact, unrevised digital replica of 1,200 pre-existing collective works (i.e., the magazines) together with at least two independently created and owned copyrightable computer programs into a single integrated commercial product (the CNG) constitute either: (1) a new anthology; or, (2) other collective work? If it is a new anthology or other collective work, then it is precluded from being privileged under § 201(c) by the express language of H.R. Rep 94-1476. See H.R. Rep., supra. However, the majority at footnote 11 cites a supplementary report by the Register of Copyrights from 1965 for the inaccurate and inartful proposition that what Congress really meant in legislative history which states that a publisher cannot include an author’s contribution in a “new anthology or an entirely different magazine or other collective work” really should be read as an “ ‘entirely different’ collective work.” See Maj. Opin. at 1253-54.
The majority places great weight upon its comparison of a microform version of the Magazine pursuant to the putative approval, albeit in dicta, by the Tasini Court under the § 201(c) privilege of a reproduction of print publications in microform. The majority states: “Based on this fidelity to context, the Supreme Court reasoned that the reproduction of print publications in microform would be privileged under § 201(c).” Id. at 1252. At the outset of its discussion of the microform analogy argument by the publishers in Tasini the Court stated: “The Publishers press an analogy between the Databases,23 on the one hand, and microfilm and microfiche, on the other. We find the analogy wanting." Tasini 533 U.S. at 501, 121 S.Ct. at 2391 (emphasis mine). The majority then proceeds to find the CNG “analogous” to these forms of microform. On the heels of that tenuous “analogy,” the majority is *1271dismissive of the addition of the copyrightable computer programs incorporated by Mindscape into the CNG — the CD Author Development System and the PicTools Development Kit.24 After describing and lumping together all of these independent and free-standing copyrightable computer programs the majority summarily concludes that: “[T]he computer program’s elements ... do not take the CNG outside the § 201(c) privilege.” Maj. Opin. at 1255. These copyrightable computer programs are referred to by the majority as “the search function,” “zoom capacity,” and a “computer program [that] simply compresses and decompresses the digital images.” Id. at 1255-56. The majority invoking “a staple of the Copyright Act”— “the principle of media neutrality”25 — observes that: “The CNG is no different than other CD-ROM products, in that all CD-ROMs contain an operating computer program that directs its functionality;”26 and, “These added features only serve to provide functionality to the ‘CNG’s raison d’etre.’ ” Id. (emphasis mine). Confronted with a similar argument the Supreme Court majority in Tasini stated: “We lack the dissent’s confidence that the current form of the Databases is entirely attributable to the nature of the electronic media, rather than the nature of the economic market served by the Databases. In any case, we see no grounding in § 201(c) for a ‘medium-driven’ necessity defense ... to the Authors’ infringement claims.” Tasini, 533 U.S. at 502 n. 11, 121 S.Ct. at 2392 n. 11.
First and foremost, the majority’s analogy of the CNG to microfilm and microfiche is far too comprehensive. A valid analogy would be to a reproduction of the Magazines by scanning them onto a CD-ROM in digital format using the mechanical operating software embedded in a scanning device — similar to the photographic microfilming of the pages of a publication. At that point, without the benefit of a compression computer program, one would have essentially a “digital microfilm” stored and capable of display on a computer screen truly analogous to microfilm. The problem for the Society and its co-infringers, however, is that that digital reproduction would likely consume several hundred CDs by assembling it -without a compression computer program. Such a reproduction would place the Magazines’ images in context, readable and displayable by a computer- — but it would not be a marketable product to the present computer-savvy generation, “the economic market *1272served by the [CNG].” Id. The same can be said for the search-engine computer program. Without it the microform-like collection of CDs would not be marketable. Stated differently, the old wine without the new bottles with the twist off cap would be an unmarketable product. The tech-sawy consumer of today would be better served pulling the old editions of the National Geographic Magazine from their parents’ and grandparents’ closets, basements, or attics and viewing them for free!
The copyright principle in play here is that the nebulous concept of “media neutrality”27 that has its principal focus on the owner of the copyright right, not the grantee of a privilege. That concept cannot trump the codified and constitutionally-based rights of a copyright owner. The statutory definition of collective work clearly applies to the “assembly” — the aggregation — of distinctly copyrightable works into “a collective whole;” here, the CNG. Thus, when the distinct, separable, copyrightable computer programs (some of which have registered claims of copyright predating the creation of the CNG) have been intentionally incorporated into the commercial product known as the CNG together with the existing components of the collective works — the unrevised individual issues of the National Geographic Magazines — there then exists an “other collective work” or surely, even under the majority’s (mis)interpretation, “an entirely different collective work” that fails to qualify for inclusion within the § 201(c) privilege.
B.
The Society claims the benefit of a privilege for a group of third parties that actually compiled and published the CNG. The Society relies on putative transfers to those third-parties of the § 201(c) privilege to insulate it from liability for its contributory infringement and to protect its partners in publication from liability.
Although the issue of the transferability of the privilege accorded under § 201(c) was not squarely briefed by the parties,28 it was identified directly by the Supreme *1273Court in Tasini29 See Tasini, 533 U.S. at 496 n. 5, 121 S.Ct. at 2389 n. 5. Here, the Society, as the owner of the copyright in the collective works (the Magazines), is the statutory grantee and holder of the privilege. However, the record reflects that the Society, through taxable subsidiaries, contracted with an unaffiliated third party, Mindscape, to reproduce and distribute the Magazines on CD-ROMs. RAcc# 2-230 at 9. Mindscape incorporated two independently owned and copyrighted computer programs (CD Author Development Kit and the PicTools Development Kit owned by DataWare, Inc. and Pegasus Imaging Corporation, respectively) onto each CD-ROM of the CNG.
The question is straightforward: once it has been established who owns the copyright in a particular collective work, who may exercise the § 201(c) privilege? The answer is equally straightforward: the exercise of privilege accorded the owner of a collective work under § 201(c) is limited to that owner. As the Act makes clear, the § 201(c) grant, is a privilege, not a right. As such, it is not transferrable. Thus, as a threshold matter, the invocation in this case of the § 201(c) privilege is not authorized by the law on this record.
“Section 201(c) does not and cannot grant rights (since only [§ 106] does that); instead, it provides (rebuttable) presumptive privileges where the owner of a collee-five work does not have a transfer of exclusive rights from a free-lancer.” William F. Patry, Patry on Copyright (hereinafter “Patry”) § 5:138 (2007). “Section 201(c) grants specified privileges that can be exercised only by the owner of the original collective work (or an agent acting on behalf of the collective work owner) and cannot, without free-lancers’ permission, be transferred to third parties.” Id. Privileges are lesser even than non-exclusive licenses.
As a result, there can be no doubt that collective owners do not own a transferable copyright ownership interest in freelance authors’ separate contributions and that authorization to third parties to include those contributions in an entirely different collective work exceeds the collective work owners’ authority under Section 201(c). Only if the copyright owner in the collective work owns an exclusive right can it authorize third parties to reproduce and distribute freelance authors’ separate contributions.
Patry § 5:141 (emphasis mine).
In the original proceeding in district court in Tasini, the trial judge concluded that any § 201(c) “privilege” was, under § 201(d)(2), a “subdivision of any of the rights specified by section 106.” Tasini v. New York Times Co., 972 F.Supp. 804, 815-16 (S.D.N.Y.1997). Thus, he concluded that it could be transferred. Id. How*1274ever, as noted, “[t]he only ‘rights’ granted in the Copyright Act are [contained] in Section 106, not in chapter 2.” Patry § 5:141 n. 2. That the term “privilege,” in turn, appears only in § 201(c) shows that Congress recognized a difference between a right and a privilege. Further, “in general law,” privileges are “regarded as personal and not transferable.”30 Id.
If one examines the pertinent copyright definitions in § 101 and the usage of “privilege” and “right” throughout the Act, the error of the Tasini district court — and the appellants here invoking it — becomes clear. For instance, § 101 defines copyright ownership and transfer as follows:
“Copyright owner”, with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right. '
A “transfer of copyright ownership” is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.
§ 101. As noted, “ownership” and “transfer” thereof are addressed only in the context of the § 106 “exclusive rights.” Nowhere is either of these terms used in connection with a “privilege.” Incidentally, the forms of transfer mentioned in the above definition and in § 201(d)(1)31 are *1275familiar forms of property transfer. Just as with most property transfers, any interest in copyright that is transferable must be accomplished in a writing, to wit:
§ 204. Execution of transfers of copyright ownership
(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.
§ 204 (emphasis mine). Again, only an “owner” may effect a transfer. Thus, it is important and significant that under § 201(c) “the owner of copyright in a collective work,” not a transferee or sub-grantee, is specified as having:
only the privilege of reproducing and distributing the contribution [for which copyright ownership is vested in the author] as part of that particular collective work [for which copyright ownership is vested in the publisher], any revision of that collective work, and any later collective work in the same series.
§ 201(c) (emphasis mine). A clear distinction is drawn between the “owner” of the contribution and the “owner” of the particular collective work — the only person privileged to reproduce and distribute said contribution.
Here we have a publisher, the Society (a not-for-profit corporation), allegedly transferring its “revision” privilege(s) to a wholly-owned, for-profit corporation, which then putatively re-transfers the “revision” privilege(s) to Mindscape, Inc. in order to exploit the contributor’s independently copyrighted work in a manner never intended by § 201(c).32 However, as emphasized, the limited § 201(c) “privilege” cannot be exercised by anyone other than the “owner of the [original] collective work”'— here the Society.
This limitation as to any transfer of the § 201(c) privilege gains further support through a study of other uses of “privilege” in the Act. If a particular word of a section of a statute is not otherwise expressly defined, that word’s use elsewhere in the statute is indicative of how that word should be interpreted within the section itself. See Dep’t of Revenue of Or. v. ACF Indus., Inc., 510 U.S. 832, 333, 114 S.Ct. 843, 845, 127 L.Ed.2d 165 (1994) (requiring courts to give words which are used in more than one place in a statute interpretations that are consistent). The word “privilege” appears only three times in the entire 1976 Copyright Act: in § 201(c), and in §§ 109(d) and 111(d). Section 109(d) provides that persons other than the two express recipients (buyers and libraries) of the “privileges” described therein cannot exercise those privileges:
(d) The privileges prescribed by subsections (a) and (c) do not, unless authorized by the copyright owner, extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it.
§ 109(d) (emphasis mine). That is, the § 109(d) “privileges,” as exceptions to the § 106 rights, are given by express statutory language only to buyers of copyrighted *1276works and to libraries. Such privileges do not extend to third parties, such as non-owners or library patrons who merely borrowed or rented the works unless “authorized by the copyright owner.” Id. Similarly, § lll(d)(l)(B)(i) defines the consideration (a compulsory licensing fee) that cable systems must pay for the “privilege” of retransmitting television broadcasts. Once paid for, the privilege is particular to the cable system in question. § lll(d)(l)(B)(i).
Interpreting “privilege” in § 201(c) in accordance with that term’s use in §§ 109(d) and 111(d), clarifies that the § 201(c) privileges cannot be transferred to the subs, NGE/National Geographic Interactive and Mindscape, Inc. The contributing owner (here Greenberg) never authorized the transfer. Like the privileges provided for in § 109(d) and § 111(d), the express limitations on the privilege in § 201(c) exist in the statutory language itself. Only the “owner of the copyright in that collective work” (here each Magazine) has the authority to exercise any of the § 201(c) privileges.
The legislative history of the 1976 Copyright Act also informs the non-transferability of privileges. The 1961 draft stated:
The copyright secured by the publisher in the composite work as a whole should cover all of the contributions not separately copyrighted; but the publisher should be deemed to hold in trust for the author all rights in the author’s contribution, except the right to publish it in a similar composite work and any other rights expressly assigned.
Register of Copyrights for the H. Comm, on the Judiciary, 88th Cong., Copyright Law Revision Part 2, 230 (Comm.Print. 1963) (emphasis mine). In stark contrast, a 1964 draft stated:
The owner of copyright in the collective work shall, in the absence of an express transfer of the copyright or of any exclusive rights [of the author] under it, be presumed to have acquired only the privilege of publishing the contribution in that particular collective work.
Staff of H. Comm, on the Judiciary, 88th Cong., Copyright Law Revision Part 3, 15 (Comm. Print 1964) (emphasis mine). In addition to demonstrating that a statutory privilege is personal to the statutorily defined recipient thereof, the drafts of § 201(c) demonstrate that the privileges were not meant to be transferable. The change in language from “right” (in the 1961 draft) to “privilege” (in the 1964 draft) confirms the drafters’ intent to provide publishers with something less than a right — a mere privilege that was not transferable.
The subject matter of § 201 is “copyright ownership and transfer.” Throughout the section, the words “right” and “copyright” are used in connection with authors or their surrogates (employers for hire). In that section, the only time the word “privilege” is used at all in is connection with publishers. § 201 et seq. This usage reveals an intent to limit a publisher’s entitlements. If Congress had wanted to give publishers a “right” to transfer authors’ contributions to third parties, the word “privilege” would not have been substituted for the word “right” in § 201(c). Congress required “express transfers” in the “works-made-for-hire” and “transfer of ownership of copyright” definitions in §§ 101 and 204. Section 201(c), however, is premised on the non-existence of an “express transfer of the copyright or of any rights under it.” § 201(c). Accordingly, Congress intended the word “privilege” to be less than a right and nontransferable, analogous to a nonexclusive license.
For all of these reasons, it should be clear that the “privilege” of § 201(c) is not transferable but resides only with the *1277copyright owner of the collective work— here the Society. Accordingly, only the Society may claim shelter from infringement under § 201(c) and then only if it exercised the two specific privileges in the manner permitted — -which it did not.
C.
Another determinative issue has been ignored by the appellants and omitted from consideration by the majority — the “public display” issue. Simply stated, if indeed the appellants enjoy a § 201(c) privilege it does not include the privilege of publicly displaying Greenberg’s protected photographs.
The Court in Tasini, 533 U.S. at 498 n. 8, 121 S.Ct. at 2390 n. 8, expressly stated that it did not reach the display issue. Appellants are relying upon the privilege they contend that the Society has solely under § 201(c).33 Section 201(c) provides:
In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series,
(emphasis mine) (“contribution” in this case refers to the photographs contributed by Greenberg who has undisputed ownership of the copyrights for the photographs that appear in the CNG product.).
As the Court observed in Tasini, “[t]he 1976 Act rejected the doctrine of indivisibility, recasting the copyright as a bundle of discreet ‘exclusive rights,’ each of which ‘may be transferred ... and owned separately’.” Id. at 495-96, 121 S.Ct. at 2388-89 (citations omitted). The Tasini Court, in its fourth footnote, quotes the § 106 rights, including subpart “(5)” which reads:
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly;
Id. at 496 n. 4, 121 S.Ct. at 2389 n. 4; § 106(5) (emphasis mine). An examination of the other five descriptions of copyright rights disclose the following verb forms with each enumeration: “(1) to reproduce; (2) to prepare derivative works; (3) to distribute copies; (4) ... to perform; ... (6) ... to perform ... publicly by means of a digital audio transmission.” Id. (emphasis mine).
Accordingly, a comparison between § 201(c) and § 106(l)-(6) discloses that the § 201(c) “privilege” is confined only to *1278two of the copyright owner’s exclusive rights: that is, “(1) to reproduce” and “(3) to distribute copies.” Nowhere is the right under § 106(5), the right to “display” a pictorial work, mentioned or included. Expressio unis est exclusio alteri-us.
Moreover, when one examines § 101, where the statutory definitions are set out, one discovers that “display” has a definition that includes projection on a computer screen — which is exactly what takes place when a CNG CD-ROM is inserted into the computer of a user:
To “display” a work means to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process or, in the case of a motion picture or other audiovisual work, to show individual images nonse-quentially.
§ 101 (emphasis mine). The statutory definition of “audiovisual work” under § 101, further clarifies the computerized “display”:
“Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines, or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.
Id. (emphasis mine).
As observed above, the Tasini Court, at footnote 8, squarely raised the “publicly display” issue. Such an issue presents itself in the resolution of the scope of the § 201(c) privilege once we get past the initial hurdle of “context.” In the very document cited by the Court, the “letter” of the Register of Copyrights, Marybeth Peters, a recognized copyright scholar, states:
The limited privilege in § 201(c) does not authorize publishers to display authors’ contributions publicly, either in their original collective works or in any subsequent permitted versions. It refers only to “the privilege of reproducing and distributing the contribution.” Thus, the plain language of the statute does not permit an interpretation that would permit a publisher to display or authorize the display of the contribution to the public.
... The other databases involved in the case, which are distributed on CD-ROMs, also (but not always) involve the public display of the works. Because the industry appears to be moving in the direction of a networked environment, CD-ROM distribution is likely to become a less significant means of disseminating information.
The Copyright Act defines “display” of a work as showing a copy of a work either directly or by means of “any other device or process.” The databases involved in Tasini clearly involve the display of the authors’ works, which are shown to subscribers by means of devices (computers and monitors).
To display a work “publicly” is to display “to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” ...
This conclusion is supported by the legislative history. The House Judiciary Committee Report at the time § 203 was finalized referred to “sounds or images stored in an information system and capable of being performed or displayed at the initiative of individual members of the public” as being the type of “public” transmission Congress had in mind.
When Congress established the new public display right in the 1976 Act, it was aware that the display of works *1279over information networks could displace traditional means of reproduction and delivery of copies. The 1965 Supplementary Report of the Register of Copyrights, a key part of the legislative history of the 1976 Act, reported on “the enormous potential importance of showing, rather than distributing copies as a means of disseminating an author’s work” and “the implications of information storage and retrieval devices; when linked together by communications satellites or other means,” they “could eventually provide libraries and individuals throughout the world with access to a single copy of a work by transmission of electronic images.” It concluded that in certain areas at least, “‘exhibition’ may take over from ‘reproduction’ of ‘copies’ as the means of presenting authors’ works to the public.” The Report also stated that “in the future, textual or notated works (books, articles, the text of the dialogue and stage directions of a play or pantomime, the notated score of a musical or choreographic composition etc.) may well be given wide public dissemination by exhibition on mass communications devices.”
When Congress followed the Register’s advice and created a new display right, it specifically considered and rejected a proposal by publishers to merge the display right with the reproduction right, notwithstanding its recognition that “in the future electronic images may take the place of printed copies in some situations.” H.R.Rep. No. 89-2237, at 55 (1966).
Thus, § 201(c) cannot be read as permitting publishers to make or authorize the making of public displays of contributions to collective works. Section 201(c) cannot be read as authorizing the conduct at the heart of Tasini.
The publishers in Tasini assert that because the copyright law is “media-neutral,” the § 201(c) privilege necessarily requires that they be permitted to disseminate the authors’ articles in an electronic environment. This focus on the “media-neutrality” of the Act is misplaced. Although the Act is in many respects media-neutral, e.g., in its definition of “copies” in terms of “any method now known or later developed” and in § 102’s provision that copyright protection subsists in works of authorship fixed in “any tangible medium of expression,” the fact remains that the Act enumerates several separate rights of copyright owners, and the public display right is independent of the reproduction and distribution rights. The media-neutral aspects of the Act do not somehow merge the separate exclusive rights of the author.
147 Cong. Rec. E182-02 (2001) (Letter from Marybeth Peters, The Register of Copyrights of the United States of America, to Representative James P. McGovern, United States House of Representatives (Feb. 14, 2001)).
Clearly, users of the CNG CD-ROMs use their computers by virtue of operating code (“a process”) at different “times” and “places.” A House Judiciary Committee report states: “In addition to the direct showings of a copy of the work [here photograph], ‘display’ would include the projection of an image on a screen ... by any method, the transmission of an image by electronic or other means, and the showing of an image on a cathode ray tube, or similar viewing apparatus connected with any sort of information storage and retrieval system.” H.R.Rep. No. 94-1476, reprinted, in 17 U.S.C.A. § 106 (West 2005). Thus, a computer image of the photograph(s) at issue would clearly constitute a “display.” The report continues that: “The definition of ‘transmit’ ... is broad enough to include all conceivable forms and combinations of wired and wireless communications media .... ” That would certainly include a CD-ROM that is *1280sold to the public at large, to schools, to libraries, and to other downstream “displayed” for that very purpose.
This interpretation is consistent with the judicial and academic interpretation of that section. See, e.g., Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 716 (9th Cir. 2007) (“In sum, based on the plain language of the statute, a person displays a photographic image by using a computer to fill a computer screen with a copy of the photographic image fixed in the computer’s memory.”); ALS Scan, Inc. v. RemarQ Cmtys., Inc., 239 F.3d 619, 622-26 (4th Cir.2001) (observing that website display of copyrighted photographs to internet subscribers was “public display”); see generally R. Anthony Reese, The Public Display Right: The Copyright Act’s Neglected Solution to the Controversy over RAM “Copies”, 2001 U. Ill. L.Rev. 83. (2001); David Nimmer, Nimmer on Copyright § 8.20 (2007).
Finally, I will address the amici’s histrionic speculation and contention that a decision in favor of Greenberg would lead to the wholesale purging of their electronic archives (information-destroying purges, loss of recorded history, massive destruction of constitutionally protected information, etc.). See generally Amici Briefs. This often-repeated but seldom-analyzed threat is totally specious. Archives, under a narrow construction of § 201(c) are not an unauthorized “reproduction and distribution” because they are not “distributed.” See § 108 (“Limitations on exclusive rights: Reproduction by libraries and archives”). Section 201(c) is aimed at protecting authors in the context of works reproduced and distributed to the public.34 If archives are maintained primarily as a set of records, they are unaffected by the holdings in Tasini and Greenberg I. One must distinguish, however, between history being available to the public in archives, and history as a consumer product sold to the public in mass-merchandised CD-ROMs or databases. If publication is limited to the former, history need not be lost (or even inconveniently stored); it just will not be a profitable commodity — as the publishers here have endeavored to make it.
Moreover, even if such archives were technically not protected by § 201(c), their inclusion of authors’ contributions would generally qualify as a fair use.35 Because *1281the contributions would not be made widely available to the general public but would, rather, be included in records utilized primarily by researchers and scholars, there would be little or no impact on the market for the authors’ contributions. Therefore, it is specious to assert that the purging of archives must occur based upon an adverse ruling to the publishers. Thus, the doomsday cries of a “loss of history” appear at best hyperbolic, and at worst, disingenuous.
The majority rationale, essentially adopting that of Faulkner, should be rejected and the district court’s judgment should be affirmed on the basis of the rationales set out above.
. It should be emphasized that the proper copyright analysis examining this commercial product, the “The Complete National Geographic” ("CNG”), should be no different than if the collection were of Playboy or Hustler magazines. Just as the medium is "neutral” so is the content for copyright purposes.
. National Geographic Interactive is a division of National Geographic Enterprises, Inc. National Geographic Enterprises, Inc. was a wholly-owned for-profit subsidiary of National Geographic Ventures, Inc., which was a wholly-owned for-profit subsidiary of the Society. National Geographic Ventures, Inc. has since been dissolved. Faulkner v. Nat’l Geographic Enter., 409 F.3d 26, 31 (2d Cir. 2005). National Geographic Interactive and National Geographic Enterprises, Inc., along with National Geographic Holdings, Inc., are now incorporated as NGHT, Inc., a wholly-owned, for-profit subsidiary of the Society. Id. at n. 4.
.The parties stipulated that the Society would "receive royalties on all sales [of the CNG] by Mindscape.” RAcc# 2-230 at 10. However, upon a reading of the Distribution *1261Agreement, it appears that NGI, not the Society, received such royalties. R5-284, Joint Trial Exh. 323 at 13-15. This appears to be consistent with the apparent rationale for the Society in creating for-profit subsidiaries in order to avoid direct receipt of disqualifying income by a non-profit corporation.
. A copyright notice appearing on the packaging of the CNG states that the Society holds the copyright in the CNG, and that the CNG "was produced from an archive of magazines collected in a central repository and is not representative of any single regional edition of NATIONAL GEOGRAPHIC magazine.” Rl-20, Exh. A.
. It is not disputed that a computer program is a form of literary work, and thus is copyrightable. See Melville B. Nimmer & David Nimmer, 2 Nimmer on Copyright § 2.04[C] (2008). The 1980 amendments to the Copyright Act brought computer programs within the scope of copyright by adding them to the list of defined works and providing for limitations on the reproduction and adaptation rights in favor of owners of copies of programs. See §§ 101, 117. These amendments were recommended by the Commission on New Technological Uses of Copyrighted Works which concluded that computer programs were the proper subject matter of copyright. See Nat'l Comm, on New Technological Uses of Copyrighted Works, Final Report 1 (1978). Moreover, courts have recognized the audiovisual displays produced by a computer programs as a separate copyrightable work. See Stern Elecs. Inc. v. Kaufman, 669 F.2d 852 (2d Cir. 1982). Electronic media inherently pose problems in delineating the by-products of original works, such as derivative works, collective works, and revisions. Bits of computer code may represent content (text, graphic images, and the like) or encode functional, stand-alone computer programs — thereby intertwining content and method of delivery. See Micro Star v. Formgen, Inc., 154 F.3d 1107 (9th Cir.1998).
. In 1988, National Geographic published a "100-year index.” That index is a separately bound volume consisting of an index to the first 100 years of National Geographic Magazine. Rll at 183-84 [Idaz Greenberg — Jury Trial Cross Examination]. There are "[v]ery little similarities” between the CD-ROM index and the print index. “When you have the paper index, the year’s index, you can find anything in the world that you want to find there, but you’re not going to be able to print it out and you’re not going to have access to it, and it’s not going to be right there at our fingertip. Whereas, when you have the product, the CD-ROM [CNG], whatever you find in the search engine you can immediately access and immediately print [and] copy.” Rll at 143-44 (Idaz Greenberg — unrefuted Jury Trial Direct Testimony).
. The appellants have changed their legal position in this case more than a politician running for election. In February of 1998 in the district court they argued: "CD-ROM 108 [the CNG] thus does not qualify as a new collective work for purposes of § 201(c) because it does not differ in any material creative respect from paper copies of the Magazine. As a straightforward reprint of the Magazine, the Society is entitled to publish it pursuant to § 201(c) ... Thus, revisions of a particular collective work and later collective works in the same series — both explicitly authorized by § 201(c) — are clearly 'new' collective works. For example, 'a "revision” can alter a preexisting work by a sufficient degree to give rise to a new original creation’.” [citing the Tasini district court opinion]. Reply Memorandum of Law in Support of Defendants' Motion to Dismiss Count II And to Dismiss for Summary Judgment on Counts III-V of Plaintiffs' Amended Complaint. Rl-28 at 4-5 (emphasis mine). In their November 1999 "Memorandum of Law in Opposition to Plaintiffs Motion to Vacate Order Granting in Part Defendants' Motion for Partial Summary Judgment, and for other Relief,” Rl-62, appellants made the following statement in judicio: "CD-ROM 108 [the CNG] is merely a republication, not a revision, of the Magazine ... CD-ROM 108 is nothing more than a collection of issues of the Magazine in a different medium ...” Id. at 7-8. In their initial brief to our court in Greenberg I, appellants continued to assert and concede that CNG is indeed a “new” collective work but qualified that concession by claiming that: "SECTION 201(c) OF THE COPYRIGHT ACT PERMITS THE SOCIETY TO PUBLISH CD-ROM 108 [THE CNG] AS A REVISION EVEN IF IT IS A NEW COLLECTIVE WORK, NOTWITHSTANDING THE SECOND CIRCUIT'S OPINION IN TASINI ... Thus, revisions of a particular collective work and later collective works in the same series ... are clearly 'new' collective works.” Brief in Opposition to Initial Brief of Jerry Greenberg and Idaz Greenberg, 19-20. To further fortify their concession appellants added the following definition: "To 'revise' something means to 'make a new, amended, improved, or up-to-date version' of it. Webster's Ninth New Collegiate Dictionary at p. 1010.” Id. at 22. Just as the chamaeleon politician changes position with the most recent poll, our appellants have changed their legal position and rationales as the Tasini case worked its way through the courts. However, as I have endeavored to demonstrate in this dissent, the CNG is a non-qualifying (per § 201(c)) new collective work, not due to its “revision” or "non-revision” status, but because the essentially archival copy of Magazines scanned into CD-ROMs (the most analogous replica to the microform replica) has been combined with at least two copyrightable (and in one case registered) computer programs — each a free-standing, sui generis copyright-eligible work. Thus, as the appellants correctly conceded in their zig-zag argument trail, the CNG is not any sort of revision — it is an exact replica placed in a different medium; which mere placement does not constitute a "revision.” Moreover, the act of scanning is all that is necessary to place the rote copy of the Magazine into the digital medium. The "assembly” of these, "separate and independent works in themselves” [the replica and the computer programs] constitute a “new” and, even "completely different,” collective work. See § 101 definition of "collective work” which in pertinent part provides: "A ‘collective work’ is a work ..., in which a number of contributions, constituting separate and independent *1264works in themselves, are assembled into a collective whole.”
. "The term 'compilation' includes collective works.” § 101. The definition of "collective work,” per § 101 in pertinent part: ",.. is a work, such as a[n] .... anthology ... in which a number of contributions, consisting of separate and independent works in themselves [here, each issue of the magazine as well as at least two computer programs], are assembled into a collective whole [here, the CNG].”
. H.R.Rep. No. 94-1476, at 122-23, 1976 U.S.C.C.A.N. at 5738; Tasini v. New York Times Co., 206 F.3d 161, 167 (2d Cir.2000); Tasini, 533 U.S. at 495, 121 S.Ct. at 2388; Greenberg I, 244 F.3d at 1273.
.“A revision is commonly understood as a purposeful alteration of content undertaken for some substantive reason .... Likewise when an exact replica of the original work is produced the result is not a revision because nothing has been revised.’ ” Lateef Mtima, Tasini and its Progeny: Exclusive Right or Fair Use On the Electronic Publishing Frontier?, 14 Fordham Intell. Prop. Media & Ent. L.J., 369, 423-26 (Winter 2004) (hereinafter "Mtima”).
. Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.
. As will be discussed below, only appellant Society (a non-profit entity) holds the § 201(c) privilege. However, the record is clear that a separate legal entity, National Geographic Enterprises, Inc. a for-profit subsidiary corporation, together with an independently owned corporation, Mindspring, Inc., actually reproduced and distributed the CNG. As explained below, the § 201(c) privilege is personal to the Society and may not be transferred to another person (i.e., legal entity). Yet it is these two other legal entities that are commercially exploiting the plaintiff’s copyright and contributions or works, purportedly under the auspices and cover of the § 201(c) privilege as to which the law negates their putative claim.
. A "collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contnbutions, constituting separate and independent works in themselves, are assembled into a collective whole. A "computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. § 101 (emphasis mine).
. H.R. Rep. at 122-23 ("... the publisher could not revise the contribution itself or include it in a new anthology or entirely different magazine or other collective work." (emphasis mine)). See Tasini, 533 U.S. at 495, 121 S.Ct. at 2388; Tasini v. New York Times Co., 206 F.3d at 167; Greenberg I, 244 F.3d at 1273.
. The "work” referred to in § 201(c) is the individual periodical or encyclopedia, not a collection of periodicals or sets of volumes over dozens of years. The drafters of the statute clearly had in mind the narrower idea of a single issue of a periodical, not the entire series of periodicals. The terminology "that particular collective work” certainly suggests this: The legislative history refers to individual "editions” and "volumes." See H.R. Rep. at 122-23 (under section 201(c) "a publishing *1266company could reprint a contribution from one issue in a later issue of its magazine ....”) (emphasis mine). Section 101 of the Copyright Act refers to a "a periodical issue” in the definition of a collective work. See also Tasini, 206 F.3d at 167 (" 'that particular collective work’ means a specific edition or issue of a periodical") (emphasis mine). To the question “if the publishers can publish revisions issue by issue, then why can’t they put all the issues togetherf?];” the answer would be: “the resulting compilation is a new anthology or new collective work, rather than a revision of 'that collective work.’ "
. See Mtima, at 425 ("The content-altered digital re-publications in Tasini and Greenberg were held to virtually extinguish any secondary market for the contributory works contained therein, because once available online, there would be little need for alternative access to the works. An exact digital replica of a collective work, particularly when disbursed into an online commercial database, would likely have the same effect. Accordingly, exact digital replicas can be disqualified from § 201(c) revision status on the same market impact grounds as the content-altered digital re-publications at issue in Tasini.’’). "[T]he [Tasini] Court ruled that to allow the digital re-publications as privileged revisions would defeat the legislative objective underlying § 201(c) ... the Court found that the development of digital technology has resulted in the creation of a secondary 'stand alone' market for the individual contributions to collective works and construed that Congress intended that the contributory authors, as opposed to the publishers, be the ones to benefit from such new markets .... [TJhus the secondary, 'stand alone’ re-publication market that § 201(c) restores to individual contributing authors had been usurped by the publishers.” Id. at 388-89 (citations omitted); see also, *1267Thomas Dallal, Faulkner v. National Geographic Enterprises, Inc.: Driving a Truck Through the Eye of a Needle, 15 Tex. Intell. Prop. L.J. 63, 82-84 (2006) ("A recent article ... defines 'media neutrality’ to mean that a 'copyright owner’s rights should be the same regardless of the form, whether analog or digital, in which the work may be embodied or fixed.' ... Because the Second Circuit in Faulkner held that the CNG was a permissible revision, it raised the issue of media neutrality only in passing and only in the context of whether the plaintiffs’ contracts explicitly forbade the challenged CNG uses .... [T]he Second Circuit dodged the central issue of whether the CNG was a 'other later collective work' or anthology by declaring microform and microfiche a permissible revision and then analogizing the CNG to microform. In Greenberg, on the other hand, the Eleventh Circuit undertook the required analysis, determined that the CNG possessed substantial indicia of originality, and emphasized that the Society had admitted as much by registering it with the copyright office as a new compilation. It then correctly, and consistently with the Second Circuit and Supreme Court Tasini decisions, concluded that the CNG was 'a new product ("an original work of authorship”), in a new medium.’ ”); Alice Haemmerli, Commentary: Tasini v. New York Times Co., 22 Colum. J.L. & Arts 129 (Winter 1998) (to the same effect).
. The Supreme Court used the word "compendium” here. "Compendium” is defined as: "1. a brief treatment or account of a subject, esp. an extensive subject; concise treatise; 2. a summary, epitome, or abridgement; 3. a full list or inventory.” Random House Unabridged Dictionary 417 (2d ed.1987). Presumably, the Court relied upon the third definition. In order to avoid confusion, because the more favored definitions of the word' — emphasizing brevity and conciseness — are inappropriate to the database at issue in our case, reproducing, as it does, the complete National Geographic with each issue as originally published rather than shortened or summarized in any way, I have instead used the word "aggregation.”
. Tasini, 206 F.3d at 167; Tasini, 533 U.S. at 495, 121 S.Ct. at 2388; Greenberg I, 244 F.3d at 1273.
. "Anthology” is defined as: "[A] collection of literary pieces, such as poems, short stories, or plays,” The American Heritage Dictionary of the English Language 114 (2d ed.1982); or "[a] book or other collection of selected writings by various authors, usually in the same literary form, of the same period, or on the same subject.” The Random House Dictionary of the English Language 88 (2d ed.1987). The only reference to “anthology” in the Copyright Act appears in the § 101 definition of "collective work”; "a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.”
. "Collective work" is a copyright term of art defined in Section 101 of the Act. See fn 12 & 14, supra. By that definition, a "collective work” is a species or type of copyrightable work different from the other two types of copyrightable works; such as, a creative work (like a novel or drama) and a derivative work (like a motion picture based upon a novel). Thus the conflation of "work[s]” and generic usage by the Faulkner district judge, and others, distorts the correct interpretive process.
. After publication of both the Tasini opinion and the Faulkner opinion, Professor Deborah Tussey made the following insightful and pertinent observation:
The NYTO and GPO CDs, on the other hand, were distributed as compilations of original issues, requiring a more extensive inquiry into whether they were functional equivalents of revisions or new collective works. Congress, in the legislative history, indicated that a publishing company could reprint a contribution from one issue in a later issue of its magazine, and could reprint an article from a 1980 edition of an encyclopedia in a 1990 revision of it, but publishers could not revise the contribution itself or include it in a new anthology or an entirely different magazine or other collective work. Since GPO included publications other than those taken from the New York Times, it clearly constitutes a new anthology and, hence, a new collective work under section 201(c). NYTO, which accumulated only issues of the New York Times, presents a more difficult case. The Faulkner court read the "entirely different” language to indicate that a collective work which is merely somewhat different from the original is privileged and relies on Tasi-ni dictum regarding microforms to conclude that accumulations of issues of the same periodical are permissible. One can as easily read the passage, standing alone, to indicate that an accumulation of issues, like NYTO, is a new anthology collecting multiple, previous compilations (the individual issues). In the absence of clear direction from Congress, the court should have resolved the question by emphasizing the policy underlying section 201(c).
The legislative history of section 201(c) clearly supports the majority’s interpretation of Congress's intent to equalize the balance of power between individual authors and publishers. The overriding policy issue reflected in that history is fairness in the allocation of incentives for creation, not, as Justice Stevens argues, efficiency of dissemination. The majority offers sufficient empirical evidence to support that policy analysis, based on the impact on the authors’ markets for new anthologies. Had the court emphasized this argument and clarified the question whether accumulation of multiple issues was permissible, it might have avoided the result in Faulkner, which undercuts the policy protecting authors. Indeed, the combination of Tasini, Faulkner, and the publishers’ new practice of requiring that freelancers license all conceivable rights as a prerequisite to publication, suggests that if Congress retains any interest in protecting powerless freelancers against overreaching publishers, it must devise a better mechanism than section 201(c).
The court would have done well to pursue an alternative argument, urged by the Register of Copyrights, that the critical right infringed in Tasini was the right of public display. The Register argued "vigorously” that the display of individual articles to users violated the authors’ right to public display and that since section 201(c) provides publishers no display privilege, the *1270defendants should be held liable. This approach, had the court taken it, might have avoided the difficulty of defining copies and revisions, and their functional equivalents, in the electronic context. When combined with the policy analysis, it would also have provided a more satisfactory rationale for the result.
Deborah Tussey, Technology Matters: The Courts, Media Neutrality, and New Technologies, 12 J. Intel! Prop. L. 427, 484-85 (2005).
. Recall that the "GPO” (General Periodicals OnDisc) in Tasini, similar to the CD-ROMs here, were included in the term “Databases.”
. See Appendix A (Text on CNG boxes of CDs) and Appendix B (shrinkwrapped "License Agreement And Limited Warranty”).
. Maj. Opin. at 1256-57. This so-called "staple of the Copyright Act” actually appears for the first time in a Supreme Court opinion in Tasini, 533 U.S. 483, 502, 121 S.Ct. 2381, 2392, 150 L.Ed.2d 500.
. Maj. Opin. at 1255-56. The statement that "[a]ll CD-ROMs contain an operating computer program" is incorrect; CDs are commonly used to store music, data and photograph files without incorporation of any computer program. It is possible to save pictures, images, songs, or videos onto a CD-ROM without adding a separate computer program to the disk. As noted above, by using only "Windows Explorer®” on a host computer, without a compression or decompression computer program or a search-engine computer program, a user can view each and every page and isolate and copy any photograph on the CD-ROM — thereby destroying any freelance contributors ability to economically benefit from the sale thereof. Moreover, the appellants use of the JIF (or Jpeg Interchange Format) that provides easy, unencumbered access to the individual images of the Magazines on the CNG’s constituent CD-ROMs. So easy that this abacus-age judge could accomplish it with only a little coaching from his law clerks! Moreover, Professor Patry even refers to me as a "Luddite” in his recent copyright treatise edition. 2 William F. Patry, Patry on Copyright, § 5:142.95 (2007)
. Media neutrality means that a copyright owner enjoys the same protection in any form where his work is fixed. Stated differently, "media neutrality” conveys the concept that the copyright law should not favor any particular technology over another, such that the subject matter of copyright includes works fixed on both existing media and future media. This broad protection encourages authors to create more works and thereby advance the progress of science and useful arts. Thus, the purpose of media neutrality is to shape a more flexible copyright law to fit new technology without revising the statutory copyright law in the future. H.R. Rep. at 52. Media neutrality language also appears in a series of statutory definitions (e.g., “audiovisual works,” "copies,” "fixed,” "literary works,” "phonorecords” and "sound recordings”). See § 101. However, such language is conspicuously absent from the definitions of "derivative works” and "compilations.” See § 101. Section 201(c) also lacks media neutrality language. Wendy J. Gordon, Fine-Tuning Tasini: Privileges of Electronic Distribution and Reproduction, 66 Brook. L.Rev. 473, 485 n. 65 (2000).
. "The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.” Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). Courts have generally been amenable to exercising their inherent power to consider unbriefed threshold issues when they arise. See U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am. Inc., 508 U.S. 439, 447, 113 S.Ct. 2173, 2178, 124 L.Ed.2d 402 (1993) ("[A] court may consider an issue 'antecedent to ... and ultimately dispositive of’ the dispute before it, even an issue the parties fail to identify and brief.”) (quoting Arcadia v. Ohio Power Co., 498 U.S. 73, 77, 111 S.Ct. 415, 418, 112 L.Ed.2d 374 (1990)). Moreover, it is an axiom of appellate review that the judgment of a district court may be affirmed upon any adequate ground, even if it is other than the one on which the court actual*1273ly relied. See Smith v. Allen, 502 F.3d 1255, 1280 (11th Cir.2007).
. The Society must rely upon the privilege in § 201(c) because it does not hold exclusive right to Greenberg’s photographs. Under § 103(b), a copyright in a compilation does not extend to the compiler any exclusive rights in the preexisting materials brought together in the collective work. Greenberg’s photographs were produced and submitted to the Society before the periodicals were published. Therefore, the photographs were preexisting works in which the Society owned no rights at all absent a written transfer. This delineation is further reinforced by the Copyright Office in its Circular 62 on the registration of copyrights in serials, where it states:
If the serial issue includes any independently authored contributions in which all rights have not been transferred by the contributor to the claimant for the serial issue as a whole, those contributions are not included in the claim being registered, because the claimant in these contributions is different from the claimant in the entire serial issue.
Copyright Office Circular No. 62 (Serials) at 4 ("The Claimant and the Extent of the Claim").
. See Chesapeake & Ohio Ry. v. Miller, 114 U.S. 176, 186, 5 S.Ct. 813, 818, 29 L.Ed. 121 (1885) (immunity from taxation enjoyed by railroad was a privilege and as such was “personal, and incapable of transfer without express statutory direction," and thus did not pass to purchaser of tract of railroad land); Wilson v. Gaines, 103 U.S. 417, 420-21, 26 L.Ed. 401 (1880) (same); Morgan v. Louisiana, 93 U.S. 217, 223, 23 L.Ed. 860 (1876) (same); Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1374 (Fed.Cir.2004) (fishing permits issued by the government not transferable); FDIC v. Morrison, 747 F.2d 610, 613-14 (11th Cir.1984) ("statutory right of redemption” under mortgage was "a personal privilege, not a transferable property right”) (alterations omitted); United States v. Murdock, 919 F.Supp. 1534, 1541 (D.Utah 1996), aff'd, 132 F.3d 534 (10th Cir.1997) (under tribal law principles, “hunting and fishing privilege within the Ute reservation is a personal right of user, ‘neither inheritable nor transferable' "); Herbert v. Newton Mem'l Hosp., 933 F.Supp. 1222, 1230-31 (D.N.J. 1996), aff'd, 116 F.3d 468 (3d Cir.1997) (doctor's hospital privileges not transferable); Fulton v. United States, 825 F.Supp. 261, 262 (D.Nev.1993) (grazing permit as to federal lands "is a revocable privilege issued by the government; it is neither a transferable nor an assignable right”). The Restatement of the Law, Property, is also helpful on this point, to wit:
A privilege, as the word is used in this Restatement, is a legal freedom on the part of one person as against another to do a given act or a legal freedom not to do a given act.
Comment:
a. Correlative absence of right. The relation indicated by the word "privilege” may also be stated from the point of view of the person against whom the privilege exists. From the point of view of this other person it may be said that there is no right on his part that the first person should not engage in the particular course of action or of nonaction in question.
Illustration:
1. A is the lessee of a farm. The least contains a covenant with the landlord B that A will cultivate field one, and that he will not cultivate field two, and has no covenant as to field three. As between A and B, A has both the duty and the privilege of cultivating field one; he has both the duty and the privilege of not cultivating field two; except so far as he is affected by the law of waste, he has the privilege of cultivating and the privilege of not cultivating field three.
Restatement (First) of Property § 2 (1936).
. § 201. Ownership of copyright
(d) Transfer of Ownership.—
(1) The ownership of a copyright may be transferred in whole or in part by any *1275means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.
(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause
(1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.
. See notes 1 & 17, supra.
. In the appellants’ en banc brief, at page 6, under "STATEMENT OF THE ISSUE,” they state the following:
In its Order of September 19, 2007, the en banc Court directed the parties to address the following issue:
Is Greenberg entitled to copyright protection for the subject work subsequent to the United States Supreme Court’s decision in New York Times Co. v. Tasini, 533 U.S. 483, 121 S.Ct. 2381, 150 L.Ed.2d 500 (2001)?
The corollary question is:
Whether, in light of the Supreme Court’s decision in Tasini, National Geographic is entitled to the privilege of 17 U.S.C. § 201(c) when it reproduced Greenberg's photographs as part of an exact digital replica of the entire National Geographic magazine series, within which those photographs first appeared in print?
As a general matter, the answer to the first question is yes. Greenberg retains his copyright protection for his individual works. Those copyrights, however, have not been infringed in this case because National Geographic, as the owner of the collective work copyright, is entitled to reproduce Greenberg’s pictures in the CNG by virtue of § 201(c).
(Emphasis mine).
. The term “distributed” has a very specific meaning in copyright law. The statutory definition of "distribution” specifies distribution of "copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending.” 17 U.S.C. § 106(3) (emphasis mine). Archives maintained by media companies may be visited by researchers (physically or virtually) without thereby being offered to the public by any of the means specified in § 106. Nor would they be distributed in the sense of being "published.” See the definition in § 101 of "publication,” its relationship to distribution, and the differentiation of "public display” from "publication” as a form of distribution.
. See § 107 (fair use is permitted for purposes of scholarship, criticism, and teaching, among other things). Under the statute, a purported fair use is analyzed on the basis of factors including, but not limited to, (1) "the purpose and character of the use”; (2) "the nature of the copyrighted work”; (3) the amount of the work used in relation to the copyrighted work as a whole; and (4) "the effect of the use upon the potential market for or value of the copyrighted work.” Id. Although factors (2) and (3) would favor the authors (whose work is creative and reproduced in toto), factor (1), insofar as the archival use is noncommercial and for the purpose of recording the article for posterity, would just as likely favor the archivist despite reproducing the article unchanged. As for factor (4), it would not appear that access to archives would adversely affect the value of the contributions to collective works. In addition, one can make other arguments in favor of public access to archives on the basis of the public interest in being fully informed. See, *1281e.g., Time Inc. v. Bernard Geis Assocs., 293 F.Supp. 130, 146 (D.N.Y.1968) (ostensibly using a fair use rationale to permit publication of drawings derived from copyrighted photographs of the Kennedy assassination, but also stating that "[t]here is a public interest in having the fullest information available on the murder of President Kennedy.'').