Shortly before the Supreme Court issued its opinion in Tasini v. New York Times, 533 U.S. 483 (2001), construing the Section 201(c) privilege, the Eleventh Circuit issued its opinion in Greenberg v. National Geographic Society, 244 F.3d 1267 (11th Cir. 2001). The prudent course for the Eleventh Circuit would have been to wait until the Supreme Court issued its opinion, but perhaps the author of Greenberg hoped for the high court's approval of his approach. If so, it was a vain wish because Justice Ginsburg ignored the court of appeals' opinion. And, by virtue of having issued an opinion at odds with the approach subsequently taken by Justice Ginsburg, the Eleventh Circuit caused a problem: did any of its opinion survive Tasini, including for example, most basically the finding of liability? (A jury had awarded the maximum statutory damages for willful copyright infringement, so the issue was hardly academic).
Four years later, the Second Circuit in a case involving the same defendant and the same issue, rejected plaintiff's argument of collateral estoppel, held that Greenberg had been superseded by Tasini, and ruled for defendant, Faulkner v. National Geographic Society, 409 F.3d 26 (2d Cir. 2005). This set up a conflict between the circuits. Two days ago, the Eleventh Circuit did the right thing, and vacated the jury award, holding that "Tasini established a new framework for applying the Section 201(c) privilege that effectively overrrules the earlier panel decision in this case." The opinion was, interestingly, by a district judge from the Eastern District of New York sitting by designation, and may be found here.