Meanwhile Back at the Publisher Ranch

"Google Library Project Hit by Copyright Challenge From University Presses"
http://www.infotoday.com/newsbreaks/nb050531-2.shtml

Objection Project Starts

My project to raise questions about the preliminary settlement in the copyright class action is now officially a project to object to the settlement. The deadline for filing objections to the court is July 15. The final approval and "fairness hearing" is set for July 28 in the New York courtroom of Judge George B. Daniels.

In order to object, a class member must appear in person on July 28. I think that's an unconscionable burden and a violation of due process, especially in view of the fact that claim awards can be as low as $5. At last week's hearing on our motion to vacate the preliminary settlement, my attorney, Charles Chalmers, showed Judge Daniels his round-trip plane ticket from California and other expenses related to his appearance there, which added up to well over $500. That is just the tip of the iceberg of the expenses a class member must incur in order to register an objection from across the country -- or across the world.

Attorney Chalmers appeared on my behalf at the May 24 hearing and will do so again at the July 28 hearing. I'm actively soliciting other class members who are interested in joining this effort to overturn a very bad settlement for freelance writers and for the public. We'll be posting further details here shortly. (Of course you can post a comment on this blog immediately or email me directly at info@muchnick.net.) In a nutshell:

* The settlement fund is appallingly low -- $10-to-$18-million.

* Individual claim awards ($1,500 for an infringement of a work with a pre-registered copyright; as little as $5 for others; the distinct possibility that many infringed authors will get nothing) would set a terrible precedent.

* The release of future claims is so broad and vague that, if approved by the court, there will be no ability to use new technologies to level the playing field in 21st century publishing.

Girard Gibbs & De Bartolomeo

So the National Writers Union, the Authors Guild, and the American Society of Journalists and Authors are no longer answering queries about the $10-to-$18-million copyright class action preliminary settlement.

No, all questions must be directed to the "official" settlement website, http://www.copyrightclassaction.com. There, if you try hard enough, you'll find that you can send an email to CopyrightSettlement@girardgibbs.com -- as if you couldn't before.

Girardgibbs.com is the website of the San Francisco class action firm Girard Gibbs & De Bartolomeo. Here's what I know about A.J. De Bartolomeo, one of the lead counsel for the plaintiffs.

1. A.J. was an associate at Robins, Kaplan, Miller & Ciresi when I was a consultant to the Robins firm in what turned into a $7.25 million settlement of claims of systematic copyright infringement at the now-defunct UnCover article delivery service.

2. A.J. is an old friend of Dan Reidy, a San Francisco lawyer who was Robins' co-counsel in the UnCover case.

3. A.J. is a San Francisco 49ers fan.

4. A.J. and her firm must not be very proud of the preliminary settlement. A Google search shows that the following content used to be on the "Our Cases" page at http://www.girardgibbs.com:

In re Literary Works in Electronic Databases Copyright Litigation

Class action on behalf of freelance authors who own the copyrights in works published in newspapers, magazines or professional journals against electronic databases for unauthorized use in violation of U.S. copyright laws. The litigation arises out of Tasini v. New York Times, argued March 28, 2001 before the U.S. Supreme Court.

But unless my aging eyes deceive me, there's not even a trace of a mention of the case there any more -- much less any verbiage about the settlement. Draw your own conclusions.

More Strange Goings-On at FreelanceRights.Com

As noted yesterday, the copyright class action settlement parties yesterday accepted Judge George B. Daniels' suggestion to give class members the opportunity to post questions and comments directly to class counsel. The so-called information website of the associational plaintiffs -- the National Writers Union, the Authors Guild, and the American Society of Journalists and Authors -- has been trying to do this at http://www.freelancerights.com and, frankly, has been making a terrible hash of things.

Here's today's upshot at http://www.freelancerights.com/disc.htm:

I have written several articles for IDG and Cahners and Reed Elsievier? Would I register for copyright for each one? Do I pay the copyright fee for every publication, or per piece?

REPLY: Please submit all questions to the official class action website at www.copyrightclassaction.com. The Claims Administrator and/or attorneys for the plaintiffs will respond to questions submitted to that website. This website will no longer do so.

*****

Well, thanks a bunch! The problem, at least at this point, is that the FreelanceRights.com discussion page, for all its flaws, did appear to offer an easily accessible, non-censored, one-click posting mechanism. As of a moment ago, the http://www.copyrightclassaction.com site offered no such thing -- just the ability, if you look hard enough, to send a private email to Girard Gibbs & De Bartolomeo, a San Francisco class-action firm. I question whether this adheres to the spirit of the conversation yesterday in Judge Daniels' courtroom.

I also encourage all you blog readers to fire away with questions to the new and improved "official" site even as we mourn the passing of the inept but well-intentioned forum at the "unofficial" site.

Try this one, for example:

"Are new-generation infringers HighBeam and FindArticles covered by the settlement release? The brief in opposition to the recently denied motion to vacate the preliminary settlement says yes. Mediator Kenneth Feinberg and the associational plaintiffs say no."

Official Settlement Website to Add ‘Comments’ Posting

United States District Court Judge George B. Daniels today asked class counsel, and class counsel agreed, to set up the capability for class members to post comments at the official website for the $10-to-$18-million copyright class action preliminary settlement, http://www.copyrightclassaction.com.

This development came in the course of a hearing on my motion to vacate the preliminary settlement. Judge Daniels denied the motion, as was expected on both sides.

The focus of the settlement procedures now shifts to the July 15 deadline for class members to object to the settlement terms or to opt out of the settlement. A final settlement hearing, known as the Fairness Hearing, is scheduled for July 28.

In denying the motion to vacate but suggesting the addition of an interactive communication feature, Judge Daniels made it clear that he distinguished between comments from class members, which he will welcome, and formal objections to the settlement, which he will entertain only on the schedule set forth in the preliminary settlement. He refused to remove the requirement for an objecting class member to appear in person at the fairness hearing.

(I was not at today’s hearing in New York. My attorney Charles Chalmers did travel from California to New York for the oral arguments.)

I look forward to the introduction of the comments capability at the official settlement website and to seeing what form it takes. Checking the site today, I see a page where it states, “You can email Class Counsel at: CopyrightSettlement@girardgibbs.com.” I believe that this mere listing of an email address existed before -- though I am not certain about that -- and I assume that Judge Daniels had something more than that in mind, and that the settlement parties intend to set up a more ambitious comments mechanism.

'If You Would Like to Discuss This Further ...'

From the query page of the associational plaintiffs' website, http://www.freelancerights.com/disc.htm:

I just went on the Chicago Tribune electronic database. Today (May 6, 2005), there are 667 articles I wrote in its database. Why are companies still infringing copyrights when they were told not do so in 2001? Will publishers have to pay additional money for apparently violating the law (I never signed a contract with Trib)? Also every article has the following in parenthesis after a description of my article (pre-1997 Fulltext). What does this mean? Is this an attempt to avoid responsibility for copyright infringment?

REPLY: Publishers should not be posting and selling electronic copies of freelance articles unless they have the author's consent to do so, and the Settlement does not give any publisher or defendant database the right to do so unless and until it is finally approved by the Court. If you would like to discuss this further, please contact one of the Associational Plaintiffs or the plaintiffs' lawyers.

*****

They forgot to supply the contact information.

Plaintiffs' lawyers:
Diane S. Rice, drice@hosielaw.com, 415.247.6000
Michael J. Boni, mboni@kohnswift.com, 215.238.1700
A.J. De Bartolomeo, adj@girardgibbs.com, 415.981.4800

Associational plaintiffs:
National Writers Union, nwu@nwu.org, 212.254.0279
Authors Guild, staff@authorsguild.org, 212.563.5904
American Society of Journalists and Authors, 212.997.0947, fax 212.937.2315

Let me know what they say by posting to this blog or emailing me at info@muchnick.net.

New York Times to Information Consumers: Pay For It!

See this morning's item at Information Today NewsBreaks, "New York Times Content Eases Toward Paid Subscription," http://www.infotoday.com/newsbreaks/nb050523-1.shtml.

* One of the most interesting aspects for information professionals is that the new "TimesSelect" service will give subscribers "unfettered access to 25 years of New York Times’ archived articles. Comparing that $49.95 annual subscription fee with the standard $2.95-per-article fee charged by services such as Factiva or ProQuest or the $1.50-per-article fee often charged by other newspaper archives, this would mean that after the first 17 (or 34) articles used in a year, TimesSelect would open up access to The New York Times’ archives."

* "TimesPast" provides full-text access back to 1980.

* This "could seriously affect the current article archive pricing from which The Times Co. reportedly garners as much as $1 million dollars a year. Access to the full archive currently extends back to 1851 and costs $2.95 per article. Archived content dating from 1996 forward has optional, discounted, multipack pricing—four articles for $7.95 (33 percent off), 10 articles for $15.95 (46 percent off), or 25 articles for $25.95 (65 percent off). ProQuest supplies the digital PDF files of historical articles from its Historical Newspaper collection."

My own two 1989 New York Times Magazine articles (including a December 17, 1989, cover story, "Joe Montana: State of the Art") are available both on the ProQuest service via the Times website and on LexisNexis. Last week I registered the copyrights for these pieces. In a bullying announcement in 1995, in the early period of the Tasini v. New York Times lawsuit and other activism, and again in 2001, after the Supreme Court ruled in favor of freelance writers on the copyright issue, The Times told freelancers that their material would be expunged from the archives unless they retroactively signed off on secondary rights. Which I of course never did.

So I've been among the hundreds, thousands, or tens of thousands of rights holders who have been both unfairly blamed for gaps in the historical record and ripped off all along.

Thomson/Gale to Infringed Writers: Drop Dead

Below is the text of Thomson/Gale's "Important Notice to Freelancers" at http://www.galegroup.com/freelance/. It was issued by Christine M. Gordon, the company's senior vice president for copyright and licensing.

Christine Gordon and I go back a long way -- all the way to 1994, when Gale Group was called Information Access Company and was headquartered in Foster City, California, not Farmington Hills, Michigan.

More about my dear old friend Christine Gordon after a decent night's sleep. In the meantime read and weep.

***************

Important Notice to Freelancers

Thomson Gale respects the intellectual property of others. The licensors of all articles appearing in our databases have assured us that they have the right to authorize electronic distribution of the materials they provide to us. If you are a writer, and if you have questions or concerns regarding the electronic distribution of your materials, we recommend that you contact your publisher directly. If you dispute the right of your publisher to authorize electronic distribution, you may provide us with a written notification of your claim and we will disable access to the materials. Your notification to us must be in writing and must include the following information. Access the form.

A full and complete identification of your article (namely, the title and listed author, where it was originally published, the original publication date, and the name of our database in which it appears);

Your name, address, telephone number, and (if you have one) your facsimile number and e-mail address;

A statement that you own the copyright at issue or that you are acting on behalf of the owner (and, if so, that owner's name, address and telephone number); and

A statement that you have a good faith belief that electronic distribution of the article has not been authorized by the author or by applicable law.

Your contact information must be accurate and complete so that we can confirm the authenticity of your request and follow up with you if we have difficulty identifying your article. You must sign your notification and affirm to the truth of the information provided in the notification under penalty of perjury.

You must send this request to us at the following address by U.S. Mail or overnight courier. (We regret that we cannot process notifications by fax, telephone, telegram, or email.)
Christine M. GordonSr. Vice PresidentCopyright & LicensingGale27500 Drake RoadFarmington Hills, Michigan 48331

We will, of course, forward a copy of your request to the licensor-publisher. We may restore an article to our online databases if it is determined that your publisher has the right to authorize electronic distribution.

'Thomson Gale Quietly Rolls Out New Service'

See Information Today NewsBreaks, April 4, 2005, http://www.infotoday.com/newsbreaks/nb050404-1.shtml

The highlights:

* Days after the announcement of the copyright class action preliminary settlement, Thomson Gale "has quietly launched the beta of a new premium business content service for individual users."

* Known as "Goliath," its existence only became evident to Information Today's Paula Hane "during a search of premium content at LookSmart's FindArticles.com site, which provides links to several premium content providers, including HighBeam Research, KeepMedia, ProQuest (just announced in March), and Goliath. A little Goliath icon led me over to the new site. Thomson Gale has not issued any press releases or announcements about the new service."

* A full subscription to Goliath costs $345.95 a month. "An individual article purchased directly at Goliath, or located through a service like FindArticles.com and purchased at Goliath, costs $9.95."

* "The launch of the Goliath service marks a move by Thomson Gale into new territory -- outside of libraries."

The UnSettlement: Here’s How the HighBeam Shell Game Works

The defendants are probably counting on something like this to happen if the copyright class action preliminary settlement gets final approval:

1. In the end, very few writers opt of the class. A $1,500 (Category A) or $5-to-$60 (Category C) bird in the hand is better than two in the bush.

2. Seduced by the incoherent saber-rattling of the alphabet-soup authors’ organizations, some will believe (as the FreelanceRights.com website seems to suggest) that HighBeam is not covered by the settlement release and can be sued separately. Not (as the brief in opposition to my motion to vacate the preliminary settlement seems to suggest) that everyone who conceivably could be sued has been sued.

3. At the bottom of HighBeam infringements is the notice, This material is published under license from the publisher through the Gale Group, Farmington Hills, Michigan. All inquiries regarding rights should be directed to the Gale Group.

4. The Gale Group is a released defendant of the class action. I’ll have more to say about the history of this company's off-and-on unsavory practices -- mostly on -- in future posts.

Bottom line: the UnSettlement. Also known in carny circles as “the old shell game.”

The UnSettlement: Some Bullet Points

1. There's indisputable evidence of infringement of both unregistered and registered copyrighted works at new-generation database companies like Find Articles and HighBeam. (See the declaration and exhibits in support of my motion to vacate at http://freelancerights.muchnick.net.)

2. There's also indisputable evidence that some/much/most/almost all of the content of these new-generation database companies is supplied by old-school database companies, which are also released parties in the consolidated class action, such as Thomson/Gale and ProQuest.

3. On March 2, 2005 -- just weeks before the announcement of the preliminary settlement -- one of the associational plaintiffs, the National Writers Union, launched a public campaign against FindArticles. (See http://www.nwu.org, “Are Your Copyrights Being Violated?”, on the public pages.)

4. At least two intelligent questions about HighBeam (neither posted by me, by the way) have been raised on the query page of the associational plaintiffs’ information website, http://www.freelancerights.com. The answer from the NWU, the Authors Guild, and the American Society of Journalists and Authors clearly seems to be that HighBeam is not covered by the settlement release.

5. Mediator Kenneth Feinberg appears to take the same position in his declaration in support of the brief opposing my motion to vacate.

6. A fair reading of the opposition brief itself is that plaintiffs’ counsel have a different view. They say in essence, We have sued and settled with everyone there is to sue and settle with.

7. The class representatives or “named plaintiffs” are also impacted by this issue.

8. In sum, there are compelling reasons to question whether the class has been adequately represented in the preliminary settlement.

The UnSettlement: First in a Series

From the law.com dictionary of legal terms:

settlement
n. the resolution of a lawsuit (or of a legal dispute prior to filing a complaint or petition) without going forward to a final court judgment. Most settlements are achieved by negotiation in which the attorneys (and sometimes an insurance adjuster with authority to pay a settlement amount on behalf of the company's insured defendant) and the parties agree to terms of settlement. Many states require a settlement conference a few weeks before trial in an effort to achieve settlement with a judge or assigned attorneys to facilitate the process. A settlement is sometimes reached based upon a final offer just prior to trial (proverbially "on the courthouse steps") or even after trial has begun. A settlement reached just before trial or after a trial or hearing has begun is often "read into the record" and approved by the court so that it can be enforced as a judgment if the terms of the settlement are not complied with. Most lawsuits result in settlement.

The $10-to-$18-million preliminary settlement in the copyright class action would more accurately be called the UnSettlement. On the eve of Judge George M. Daniels' hearing on my motion to vacate the preliminary settlement, it's apparent that little has been settled regardless of what happens in court Tuesday.

No peace, of course, is ever completely unambiguous; life is just too complicated for that. But the terms negotiated by many of the major players in the print and electronic publishing industries, along with three major authors' organizations, are distinguished by how little the wrongful and more powerful parties -- the infringing publishers -- felt compelled even to try. If these terms prevail, they are off the hook, plain and simple. Meanwhile a generation of freelance writers are on the hook ... for a regime of servitude in which the iron fist of contract law trumps the constitutional principles of copyright law.

Let's unmask the UnSettlement for what is is: a naked power grab of astonishing brazenness for which the alphabet-soup writers' organizations collectively rolled over. We'll begin with eight bedrock bullet points.

Sound of One Hand Clapping

"The fact that non-parties have been encouraged to join in the settlement and contribute, thereby expanding the settlement funds, should be applauded by Muchnick," the opposition brief says.

Pardon me if I applaud with only one hand. Excuse me, "expanding the settlement funds"? It looks more like the core defendants settled on an $18 million cap, then sold off shares to participating publishers throughout the industry.

Expanding the settlement funds? Does that mean that without the vague additions of non-parties to the release, Category A claims would be $500, instead of $1,500, and Category C's would be a coupon for a discounted subscription to the infringing magazine or newspaper, instead of $5 to $60?

Beaming in on HighBeam

My item about the associational plaintiffs' take on new-generation infringer HighBeam ("New And Improved FreelanceRights.Com Query Page," http://freelancerights.blogspot.com/2005/05/new-and-improved-freelancerightscom.html) was much too polite and gentle.

Again, here's what the so-called information website has to say about HighBeam:

Highbeam.com is not a party to the Settlement and nothing in this litigation or the Settlement permits highbeam.com to infringe freelance works. If your works appeared in any publication on the List of Publications on the www.copyrightclassaction.com website, then you can and should submit claims for those works because their inclusion on the List of Publications means they appeared in a defendant database and are eligible for compensation. However, the defendant databases, including ProQuest, do not have the right under the Settlement to re-license works that are eligible under the Settlement to any third parties such as highbeam.com. It is important to document the fact that your works appear on highbeam.com and to register your copyright to those works.

But that doesn't square with the concede-no-flaws posture of the papers in opposition to my motion to vacate the settlement:

Muchnick complains that the release covers non-parties and that it may cover companies acquired in the future by a defendant. The fact that non-parties have been encouraged to join in the settlement and contribute, thereby expanding the settlement funds, should be applauded by Muchnick. The asserted shortcomings of the release are premised on imagined claims that will never arise in the real world. For example, Muchnick worries that in the future one of the defendants will acquire a non-party that has infringed a class member's work and prevent that claim from being litigated. In fact, the Defendant Group consists of all the potential defendants that plaintiffs could identify and throughout the many years of litigation, the plaintiffs are not aware of any others that should have been sued. Certainly, Muchnick does not identify the omitted defendant that may in the future be acquired and thereby released.

Then there's this from mediator Kenneth Feinberg:

The opponent of the settlement also criticizes the scope of the release, maintaining that the negotiated release is too broad and releases too many entities who were not participants in the mediation process. This is simply factually incorrect. The carefully crafted, hard fought release simply does the obvious -- releasing those defendant companies who either participated in the mediation process itself or agreed to be bound by the comprehensive settlement terms and conditions. Other alleged infringers who are not formal parties to the settlement are not released.

So which is it, folks? Are HighBeam and FindArticles -- whose article deliveries show that defendants Thomson/Gale and ProQuest are among their suppliers -- covered or not covered by the release? If not covered, then how can the opposition brief state with a straight face that "the asserted shortcomings of the release are premised on imagined claims that will never arise in the real world"? (Imagined? My declaration submitted exhibits of up-to-the-minute infringements by HighBeam and FindArticles of a pre-registered copyrighted work.)

Blog to Miss Lonelyhearts: Thanks. You're Fired

This blog dodge, no less than the conventional publishing racket, is ruthless. So it came to pass that Miss Lonelyhearts, our intrepid advice columnist -- who plucked unanswered queries from the authors organizations' http://www.freelancerights.com website and gave take-no-prisoners answers to them -- has been given his unconditional release.

The management of FREELANCERIGHTS Blog LLP, widely rumored to be an affiliate-licensee-nominee of the Official Three Stooges Fan Club, made this decision after our fellow advocates started answering their own mail, after all. In a closed-door meeting, Miss Lonelyhearts argued that this only proved that he got results , and pleaded for the opportunity to shift the focus of his column to exploring the mystique of the "closer" in major league baseball, but to no avail. The dismissal was accompanied by an undisclosed "kill fee."

Miss Lonelyhearts tried to wrest control of the secondary rights of his one and only published column (see Thursday's post, http://freelancerights.blogspot.com/2005/05/introducing-new-feature-miss.html). But FREELANCERIGHTS Blog, LLP, refused, pointing out that his work clearly had been "for hire" and was the exclusive property of the company.

Readers will recall that in his sole sortie Miss Lonelyhearts grappled with a FreelanceRights.com query from a writer who said he did hundreds of articles for Copley Press, a "participating publisher" of the copyright class action preliminary settlement, whose newspapers were sold four years ago to Hollinger, which is not a signatory to settlement. "What is my situation?" he/she wanted to know.

Here's the answer from our friends at the National Writers Union, the Authors Guild, and the American Society of Journalists and Authors:

"If your freelance articles were included on the defendant databases without your permission, they are included in the Settlement and you are eligible to make claims for them, even if the original publisher is not a participating publisher."

Well said! But if infringements are continuing, then what is the advantage to this writer of settling for $5 to $60 per article, as opposed to registering his copyrights, opting out of the settlement, and -- either alone or in combination with others -- filing a separate action against Copley for all damages on all works for that publisher dating as far back as 1997 (thanks to the "tolling" provision of class actions, which "stops the clock" on statute of limitations)?

Come to think of it, this answer raises as many new questions as it answers! Wait, Miss Lonelyhearts, come back, we didn't mean it, we need you....

12/31/02 -- The (Tortured) Explanation

The new and improved FreelanceRights.com query page also confronts the question of the rationale for the mysterious December 31, 2002, cutoff date for copyright registration for the purposes of the preliminary settlement:

The parties agreed to the Plan of Allocation among the claims categories on or around that date. The cut off date for registering copyrights so as to qualify for Category B status was required to prevent an unfair advantage to the members of the Associational Plaintiffs (that is, the Authors Guild, the ASJA and the National Writers Union), which were aware of and had agreed to the Plan of Allocation. Any class member who registered the copyright in their works at any time and believes they can recover more through private litigation than the Settlement provides has the right to opt out of the Settlement and to pursue their own action.

This is ... interesting. It's also not in perfect sync with the explanation offered yesterday by mediator Kenneth Feinberg in his declaration in support of the brief in opposition to my motion to vacate the preliminary settlement. Feinberg talks about the danger of certain class members' "gaming the system," but he doesn't specifically refer to a prejudicial effect to the advantage of the members of the associational plaintiffs.

And on its face the FreelanceRights.com answer has things exactly backward: Insiders at the authors organizations might have had an unfair advantage because of the cutoff date. I have a feeling we'll be returning to this subject in greater depth in the weeks ahead.

New And Improved FreelanceRights.Com Query Page

I've been having a lot of fun at the expense of my old friends at the National Writers Union, the Authors Guild, and the American Society of Journalists and Authors, whose "informational" website about the $10-to-$18-million copyright class action preliminary settlement has been somewhat less than informative. In recent days the open query page seemed to collapse completely, after lagging far behind in answering invited questions.

But I''m happy to report that http://www.freelancerights.com has just put up a freshly designed query page and waded into the backlog. I'm still not satisfied with the answers but at least they're showing a pulse.

Now listed at the very top of the queries is a cheeky question, posted by your humble blogger, about when we can expect to get some answers. Mr. or Ms. Query replies evenly, "We have responded to most of the new questions and will respond to others in the next two days. Thank you for your patience." Fair enough.

True to our mission, we'll be studying these new answers, as well as the newer ones that presumably will be served up over the weekend, and providing analysis whenever that seems called for.

For right now, one key new theme jumps out at me. To its credit, FreelanceRights.com takes on two blunt and direct questions about the new-generation infringer HighBeam. The boilerplate language on which the associational plaintiffs have settled is: "Highbeam.com is not a party to the Settlement and nothing in this litigation or the Settlement permits highbeam.com to infringe freelance works. If your works appeared in any publication on the List of Publications on the www.copyrightclassaction.com website, then you can and should submit claims for those works because their inclusion on the List of Publications means they appeared in a defendant database and are eligible for compensation. However, the defendant databases, including ProQuest, do not have the right under the Settlement to re-license works that are eligible under the Settlement to any third parties such as highbeam.com. It is important to document the fact that your works appear on highbeam.com and to register your copyright to those works. "

Though I first have to consult with higher legal authorities, such as Tony La Russa, before coming to a firm conclusion, I read this passage to be agreeing with my contention that HighBeam (as well as FindArticles.com) have infringed my 1988 Washington Monthly article, whose copyright I registered in 1999, and that these companies cannot use as a defense that they licensed the material from defendants in the class action, such as Thomson/Gale and ProQuest. What's not clear is whether that's just the politically correct opinion of the authors organizations, or whether it's a plain provision of the preliminary settlement.

If my interpretation of their interpretation is correct, then HighBeam and FindArticles are on the hook for statutory damages and attorneys' fees, for me and who knows how many dozens, scores, hundreds, or thousands of others.

Once More With Feeling: WE'RE NOT 'LUCKY TO GET ANYTHING AT ALL'

The filing of a class tolls the statute of limitations for all members of the alleged class.... Once a copyright owner registers they can sue for actual damages going back for the three-year statute of limitations. But the presently unregistered copyright owner in this class can reach back three years before these cases were first filed in 2000. So they can still register, and receive all the damages that have accrued to them going back to 1997. As Muchnick's declaration showed, infringement has continued right on throughout the four years the plaintiffs were mediating with the defendants. The defendants earn money by infringing the work of all class members, including the unregistered. There is no reason to treat this part of the class as lucky to get anything at all.

Highlights From Today's Reply Brief (Part 7)

Regarding our argument that Category C claimants are not "lucky to get anything under copyright law," and regarding the tolling provision of class actions:

The opposition makes the same assertion which seems to be the cornerstone of this settlement: C claimants are lucky to get anything because they haven't registered. First, that misstates the C category. It does include those who have registered after December 31, 2002. More important, the position of unregistered class members is not that weak. The filing of a class tolls the statute of limitations for all members of the alleged class.... Once a copyright owner registers they can sue for actual damages going back for the three-year statute of limitations. But the presently unregistered copyright owner in this class can reach back three years before these cases were first filed in 2000. So they can still register, and receive all the damages that have accrued to them going back to 1997. As Muchnick's declaration showed, infringement has continued right on throughout the four years the plaintiffs were mediating with the defendants. The defendants earn money by infringing the work of all class members, including the unregistered. There is no reason to treat this part of the class as lucky to get anything at all.

The full brief can be viewed at http://freelancerights.muchnick.net/. Comments can be posted here or emailed to me at info@muchnick.net.

Highlights From Today's Reply Brief (Part 6)

Regarding our argument that plaintiffs ignore several issues:

There are several issues raised by the motion that the opposition either ignores, or avoids.

1. The Settlement and the Notice use different definitions of the Categories, and the differences are significant in light of copyright law. The opposition does not discuss this. Why would the definitions not be exactly the same?

2. The single infringement theory of the settlement is contrary to copyright law. The motion raises this point, but the opposition does not address it.

3. Class Members don't know how to identify themselves. The opposition ignores this issue.

4. The motion raised two questions about releases, neither of which is addressed by the opposition. The first was the use of numerous vague references to parties being released, by words like licensees, nominees, etc. There is no explanation of why this is justified. The second was to question why non-parties are being allowed to buy into this settlement by paying a share of the set price of $18 million. The response is that the law allows the release of non-parties. Muchnick agrees with the legal point, but the issue is one of fairness. This settlement is for $18 million even if just the sued defendants settle. But additional parties, different infringers, are allowed to obtain releases by sharing that cost. Equity suggests the additional infringers should pay something additional to obtain their release.

The full brief can be viewed at http://freelancerights.muchnick.net/. Comments can be posted here or emailed to me at info@muchnick.net.

Highlights from Today's Reply Brief (Part 5)

Regarding our argument that plaintiffs avoid the issue of possible zero compensation to Category C by asserting it is "remote" and do not discuss the other prejudicial treatments of B's and C's versus A's:

The motion presents that a settlement proposing no compensation for a portion of the class raises serious problems. The response is simply the unsupported opinion that the possibility of Category C claims getting nothing is very remote. They do not address the possibility of those claims, already receiving very modest compensation, having their compensation reduced as a result of A and B claims. Since they don't seem to argue the premise that it would be a serious problem if the C's get nothing, their position rests on the reliability of their expectation that it is remote. They claim to have justifying information, but none of it is provided. They ignore the more important point. The settlement will be approved before we, or the C's, learn whether the expectations were valid. (Claims are not due until September 30, 2005.) If they are not correct the C's are out of luck, and out of compensation. Further C's may be dissuaded from filing a claim, faced with small compensation and the threat that it will be reduced or eliminated. Given the seriousness of this issue it seems reasonable to require them to present their justifying studies or information before C's have to decide whether to object or opt out.

The motion noted another provision that was prejudicial to B's and C's compared to A's. The opposition does not discuss this provision at all.

The motion questioned the meaning of the cutoff date between B's and C's of December 31, 2002. The opposition says this is to keep writers from registering and thus increasing their compensation, which plaintiffs call "gaming the system." Why should a class member be prohibited by an arbitrary deadline from increasing their compensation? Why would that deadline be more than two years before the settlement was even announced, so that class members knew how to "game the system"? This provision reflects a fundamental misunderstanding of the registration issue....

The full brief can be viewed at http://freelancerights.muchnick.net. Comments can be posted here or emailed to me at info@muchnick.net.

Highlights From Today's Reply Brief (Part 4)

Regarding our argument that plaintiffs refuse to explain why literary works that are scientific or academic will not receive any compensation:

The plaintiffs misconstrue the issue that Muchnick has raised about the term "literary." The question raised is how do they justify a notice, and related claim form, which advises class members they cannot be compensated for "scientific studies," or "articles in scientific or academic journals"? Those types of works are covered by the Copyright Act's definition of literary works. There is no other specific definition in the Settlement Agreement. The Settlement Agreement doesn't say anything about excluding those kinds of works. What is the source of the exclusion, and how can it possibly be justified as some kind of carve-out of the alleged class? The opposition ignores this question.

The full brief can be viewed at http://freelancerights.muchnick.net. Comments can be posted here or emailed to me at info@muchnick.net.

Highlights From Today's Reply Brief (Part 3)

Regarding our argument that plaintiffs still refuse to show that the settlement is reasonable:

The plaintiffs still do not present any information to show that the $18 million settlement falls within the range of reasonableness. They simply do not respond to the authorities in this Circuit which say that the Court must consider the settlement against the maximum possible recovery. So that the Court can appreciate that this is not a theoretical issue, the accompanying declaration shows that one of the association plaintiffs, the American Society of Journalists and Authors ("ASJA"), published an estimate by another association plaintiff, the National Writers Union ("NWU"), that the damages would be "$2.5 billion to $600 billion."... This was in mid-2001, well after both plaintiffs had commenced their class action.

The plaintiffs provide a justification, but it is not one that can substitute for the requirement established by this Circuit's authority. Kenneth Feinberg, the mediator, says in essence that the $18 million was all the defendants would offer in settlement.... Mr. Feinberg is an attorney in private practice. The mediation part of his practice depends on plaintiffs and defendants both being willing to engage his services. Thus, he furthers his own economic interests in rising to enthusiastically support the settlement. But his interest may actually be more direct, and more problematic, than that. The Settlement Agreement indicates he has received, or will receive, a "mediator's success fee."... That sounds like an incentive payment, based on settlement success. If that is correct, it seriously calls into question his attempt to support the settlement with his opinions about value or other issues.

No one is yet discussing one of the most unusual features of this case. While Mr. Feinberg says the defendants were not willing to pay more, he fails to note that they were never under the usual pressure to settle. Litigation forces defendants to settle because a case proceeds. It costs them money to fight the case, and the case draws ever closer to a reckoning in which their obligation will be determined by a judge and jury, not by their own willingness. The old saying of settlement on the courthouse steps reflects the reality that every experienced litigation attorney knows. This was never a real litigation. While complaints were filed in 2000, and a consolidated complaint was filed in 2001, the defendants have never filed any response. They have not answered. They have not denied infringement, which everyone knows is essentially a conceded issue in this case. There have been no motions to illuminate the issues or to inform this Court of the merits. There has been no formal discovery. There has been nothing motivating the defendants to take the case seriously. If for some reason the case does not settle, it will be years before this complex case involving many defendants is ready for a trial.

The full brief can be viewed at http://freelancerights.muchnick.net. Comments can be posted here or emailed to me at info@muchnick.net.

Highlights From Today's Reply Brief (Part 2)

Regarding our argument that a class member has standing to object to preliminary approval:

Plaintiffs argue that an unnamed class member has no standing to object to preliminary approval. Although they reference a long list of cases, none of them consider this issue. Like the question of requiring a personal appearance to object, this appears to be a question of first impression.

The established principles clearly indicate that standing exists. The requirements for standing are injury, causation and redressibility.... If these elements exist the Article III requirement of "case or controversy" is met.... Muchnick will be subject to the requirement to appear in person. Thus, if the requirement is improper, as he contends, he is injured. Further, if Muchnick objects, which is virtually certain because he has several C claims, Muchnick wants other class members to be able to object without the burden, because the number of objections is a factor to be considered in approving the settlement.... If a significant number of class members do object, Muchnick wants it known by the Court. That is also an injury to his interests. These injuries are caused by the Notice, which will be employed pursuant to the Court's order. That satisfies "causation." Finally, if Muchnick can convince the Court to eliminate this requirement, he achieves a redress of the threatened injury. Thus, all requirements are met.

The Manual for Complex Litigation, created by the Federal Judicial Center, suggests it is prudent to hear from class members in connection with preliminary approval.... The Federal Judicial Center is the research and education agency for the federal courts, created by Congress. While not a precedent, it does suggest skepticism about plaintiffs' argument.

The full brief can be viewed at http://freelancerights.muchnick.net. Comments can be posted here or emailed to me at info@muchnick.net.

Highlights From Today's Reply Brief (Part 1)

Regarding our argument that requiring personal appearance by a class member in order to object is an impermissible burden on due process:

The question of whether the appearance to object requirement violates due process appears to be essentially a matter of first impression.... When the issue is explored more thoroughly it will be held that the requirement is an impermissible burden on a class members' due process right to object....

Appearance is a substantial burden, and is a great burden when compared to the benefit class members receive under this settlement. Hiring an attorney in the Southern District would cost thousands of dollars. Traveling from most parts of the United States to appear would cost at least hundreds of dollars in travel expenses, not to mention one or more days of the class member's time, possibly requiring absence from employment. In practical terms this burden will eliminate the ability of the class member to object, even though their property rights are being disposed of by the release of the settlement....

The basic premise of class actions is to afford relief to people with claims so small they could not otherwise obtain the benefit of representation.... To require the expenditure of many times the settlement compensation to object is contrary to the purpose of class actions. It is also contrary to the clear statement of Rule 23 that any class member can object....

Obviously, this burden falls hardest on those class members with Category C claims. They are the ones who are specifically identified for prejudicial treatment by the settlement, and who have the most modest compensation.

The full brief can be viewed at http://freelancerights.muchnick.net. Comments can be posted here or emailed to me at info@muchnick.net.

Hearing Next Tuesday on Motion to Vacate; Briefs Posted at Website

United States District Court Judge George M. Daniels will hold a hearing next Tuesday, May 24, on my motion to vacate the $10-to-$18-million preliminary settlement in the copyright class action.

All the briefs are now up at our website, http://freelancerights.muchnick.net. On the left-hand side of the page you'll find three sets of links -- to my original April motion and supporting documents; to the opposition brief and supporting documents, filed yesterday; and to the reply brief and supporting documents, filed today.

The settlement agreement and related pleadings can be viewed at the associational plaintiffs' website, http://www.freelancerights.com. I'll get those up at our site, as well ... as soon as I clean up my desk, file my tax returns, and watch the Cardinals win the World Series.

Perhaps the most "newsworthy" item in the lawyering attendant to the motion is in my attorney Charles Chalmers' declaration today. He supplies the court -- as we supplied blog readers a few days ago -- with the 2001 ASJA report of an NWU study estimating claims of between $2.5 billion and $600 billion.

Introducing a New Feature: The 'Miss Lonelyhearts' Column

As reported yesterday in "'Information' Website Goes Haywire" (http://freelancerights.blogspot.com/2005/05/information-website-goes-haywire_18.html), the query page of the associational plaintiffs' informational website about the class action preliminary settlement, http://www.freelancerights.com, seems to have lost its marbles, or at least its graphical features. This happened right after I posted the following question (not that I'm suggesting causality!):

"This page has been accumulating new questions but there appear to have been no new answers posted for weeks. Please advise us on when we can expect answers to these questions."

As a public service, the FREELANCE RIGHTS blog now brings you a new feature, called "Miss Lonelyhearts," named after the great novella by my literary idol, Nathanael West. (I love West's prose so much I named my second son "Nathanael," with "a-e-l" instead of "i-e-l." Later I discovered that my Nathanael had been born on the 50th anniversary of the death of Nathanael West. Not that I'm trying to put too much pressure on the kid. But I digress.)

From now until eternity, once a week, or whenever your humble blogger feels like it, "Miss Lonelyhearts" will pluck a question out of the forlorn slush pile at the freelancerights.com website and, in the great tradition of advice columns, attempt to answer it expertly.

First up:

"From 1996 through 2001, I wrote hundreds of articles for Copley Press, which is a signatory to settlement. In 2001, Copley sold the newspapers I wrote for to Hollinger, which is NOT. What is my situation? Sincerely, Desperate-to-Get-Paid." (OK, so I made up the signature. Remember, I'm a Nathanael West wannabe. But all questions are guaranteed to be real and reproduced from that "other" website.)

Dear Desperate: Good question! As it so happens, the definition of "released parties" in the preliminary settlement includes "past, present, and future parents, predecessors, subsidiaries, affiliates, and divisions, and all of their respective officers, directors, owners, partners, governors, employees, agents, nominees, successors, assigns, legal representatives and licensees."

Next question?

Memo to The New York Times: Wanna Take Another Swing at This?

Following the 2001 Supreme Court ruling in Tasini v. New York Times, America's "newspaper of record" set up a special notice on the web page http://survey.nytimes.com/survey/restore/. As of a moment ago the page was still there. Here's the text:

Restoration Request Site

Because of a recent decision by the United States Supreme Court, The Times is obliged to remove from electronic archives, such as Nexis, the work of freelance writers that appeared from 1980 through 1995. If you wrote for the Times during that period and you would like to give The Times permission to restore your work to electronic archives, you may do so below.

Please note that you may not selectively restore articles to the archives. If you agree to restore your work, the full body of your work will be restored.

Should you opt to have your work restored, you agree that you will not be compensated and that you will release The Times from any claims relating to your work appearing in electronic archives such as Nexis. Please also note that database restorations will occur periodically, but not immediately.

By executing this agreement, you may affect your rights in a pending class action lawsuit brought by the Authors Guild. For information about the class action, you may contact the Authors Guild at http://www.authorsguild.org/nytclassaction.html.

If you agree to the terms above, please provide the following information then press SUBMIT.

*****

Of course, I never did this. Yet The Times continued to reuse my copyrighted works, "Rich Makes His Pitch" (The New York Times Magazine, July 30, 1989), and "Joe Montana: State of the Art" (The New York Times Magazine, December 17, 1989) in various for-profit spinoffs. As of this morning, I was able to call up the full texts of those articles on LexisNexis. I also was able to order those pieces, for $2.95 fees charged to my credit card, at The Times' own website, via its partner/licensee/affiliate/associate infringer ProQuest.

And as of yesterday, my registration for the copyrights of those articles was on file.

More About the NewsBank Infringements

As noted in the just-posted item, two of my copyrighted-and-registered works are being infringed at NewsBank. Two observations emerge in connection with this. One directly pertains to the copyright class action preliminary settlement that I'm trying to halt. The other is just bizarre.

First the directly pertinent observation. Both infringements have this notice at the bottom: "Copyright [date] San Francisco Chronicle." My observation doesn't refer to the dispute over whether the San Francisco Chronicle holds this copyright -- though the United States Supreme Court has clearly spoken on the point that the copyright belongs to me, not the Chronicle. No, I'd like to focus on the fact that the San Francisco Chronicle was acquired in recent years by the Hearst Corporation. Under the vague release language of the preliminary settlement, it appears that I might not have claims against the Chronicle's successor, or current, owner, even though the current owner is participating in a continuing scheme of infringement.

Now the bizarre observation. My 1994 article for Lingua Franca magazine (r.i.p.) -- a profile of maverick Berkeley physics professor Charles Schwartz -- was reprinted under a "second serial rights" deal between myself and the Chronicle. That's one of the current infringements. The notice at the bottom says "Copyright 1993 San Francisco Chronicle." But the article wasn't published by anyone until 1994. What is this, clairvoyant copyright notice?

Please post comments about your own experiences to this blog or email me at info@muchnick.net.

Yet Another Infringer: NewsBank

Two of my copyrighted (and registered) works are being infringed by a service called NewsBank. The "About NewsBank" page at http://www.newsbank.com has this to say about the company:

NewsBank is one of the world's premier information providers. Our web-based resources feature content from newspapers, newswires, business journals, historical and scholarly documents, periodicals and more. NewsBank's resources support classroom instruction in virtually every subject area and are used by researchers the world over to delve into contemporary and historical issues and events.

Opportunities at NewsBank literally span the globe. Our network of sales and marketing representatives encompasses the United States, Europe, the Far East, South America and Australia. NewsBank's corporate offices and U.S. sales and marketing center are located in Naples, Florida (USA). Our production facility is located in Chester, Vermont; and we have an office in New Canaan, Connecticut.
Offices:
Corporate Headquarters4501 Tamiami Trail North, Suite 316Naples, Florida 34103
Operations397 Main StreetP.O. Box 219Chester, Vermont 05143

'Information' Website Goes Haywire

MY EARLIER POST WITH THIS TITLE STOPPED IN MEDIAS RES; IN OTHER WORDS, IRONICALLY, IT TOO WENT HAYWIRE. LET'S TRY AGAIN:

As noted earlier, the authors organizations' website with information about the preliminary settlement has been openly posting some tough questions but answering none of them. I just posted a new question: "This page has been accumulating new questions but there appear to have been no new answers posted for weeks. Please advise us on when we can expect answers to these questions." And it seems to have given the query page at http://www.freelancerights.com/ the html equivalent of a nervous breakdown. My question is there, along with the other orphaned ones, but the page's graphical components have gone kerplooey. If anyone out there can explain this to those of us, like myself, who are technically illiterate, I'd appreciate it.

... And Proving Continuing Infringements at The New York Times, ProQuest, LexisNexis, Thomson/Gale, Et Al....

... and a who's-who of the defendants and participating publishers in the $10-to-$18-million class action preliminary settlement. I'll lay out everything after I get some sleep.

Meanwhile:

(1) register your copyrights.

(2) document your infringements.

(3) consider joining an objection to the preliminary settlement if it goes forward after next Tuesday's hearing in federal court in New York on our motion to vacate.

(4) down the road, consider the wisdom of opting out of the class and putting yourself in position to separately sue the defendants in the class action.

(5) share your information with me, either publicly on this blog or privately by email to info@muchnick.net.

Our website is freelancerights.muchnick.net.

... And Proving Continuing Infringement at Dialog

In 1999 I registered the copyright for my 1988 article in The Washington Monthly, "The [THWAK!] Deregulation of [THUMP!] Pro Wrestling." I'd discovered that the piece was being infringed at Dialog. Recent investigations have established that my work continued to be infringed up through the announcement of the consolidated class action preliminary settlement. And a round of orders this morning at DialogSelect Open Access proves that infringement continues even as we speak.

More details shortly on how all of you can conduct your own investigations of the ongoing knockoffs of your copyrighted work.

Registering Copyrights ...

I'm in agreement with the "associational plaintiffs" of the copyright class action on one point: registering your copyrights is valuable. You don't have standing to sue in federal court for infringement until you've registered. And unless registration is within 90 days of first publication or before infringements occur, you're eligible only for "actual damages," not for extraordinary or punitive "statutory damages" and reimbursement of attorneys' fees.

With that in mind, I decided this week to register the copyrights for four of my old magazine pieces. For two of them, I used separate Short TX forms. Because the other two were published in the same 12-month period, I was able to combine their registration by using both Short TX's and an omnibus form, known as the GR/CP. The advantage with the omnibus registration is that you pay the same $30 fee as for a single-work registration. The forms, with instructions, can be downloaded at http://www.copyright.gov/forms.

More step-by-step details shortly.

SETTLEMENT QUESTION OF THE WEEK: What's the Difference Between Millions and Billions?

The topic of the moment is the National Writers Union's "study" estimating a price tag of between $2.5 billion and $600 billion for the industry's more than a decade's worth of systematic infringement of freelance writers' works on electronic databases. See today's earlier post.

The organization that conducted the study is a named "associational plaintiff" in the recently announced $10-to-$18-million preliminary settlement. (Several to many billions versus a couple or a few handfuls of millions -- that's a heck of a dilution.) So is the American Society of Journalists and Authors, which reported the study in its July/August 2001 newsletter.

The NWU, ASJA, and the third associational co-plaintiff, the Authors Guild, filed a "consolidated amended class action complaint" in September 2001, just after this study and report. The defendants never answered the complaint. Why?

Could the explanation be that once the defendants appeared in the lawsuit they would be forced to disclose the potential liability in their financial statements? And if so, then why were the associational plaintiffs seemingly enabling their legal adversaries by never filing for an injunction?

'Anywhere From $2.5 Billion to $600 Billion'

An article in the July/August 2001 issue of the newsletter of the American Society of Journalists and Authors -- discussing the Supreme Court's landmark decision in the Tasini v. New York Times copyright suit -- states:

"An NWU [National Writers Union] study estimates that media firms owe anywhere from $2.5 billion to $600 billion to freelancers as a result of this ruling."

The NWU, ASJA, and the Authors Guild have secured preliminary approval of a $10-to-$18-million settlement in a consolidated class action implementing the Tasini ruling. You don't have to buy into the $2.5-to-$600-billion number in order to know that this settlement has no business getting approved until the parties at least document, discuss, and provide a rationale for reconciling the difference. After all, one percent of the lower boundary, $2.5 billion, would be $25 million. One hundredth of one percent of the upper boundary, $600 billion, would be $60 million.

Feel free to post blog comments or email me directly at info@muchnick.net. Our website is http://freelancerights.muchnick.net.

MAY 24: A Key Date in Writers' Rights History

As Robert Stack used to say, there are eight million stories in the naked city, but the purpose of this blog isn’t only to tell mine. It’s also to connect my story with yours. Systematic copyright infringement, on a massive scale, has been business as usual in the journalism industry for more than a decade. If you’re one of the thousands, or tens of thousands, of freelance writers who have written for major magazines and newspapers, our narratives echo and resonate, to the tune of tens of millions, possibly hundreds of millions, of dollars.

That’s why, on April 27, I filed in federal court in New York a motion to vacate preliminary approval of a $10-to-$18-million settlement announced by the industry in conjunction with the National Writers Union, the Authors Guild, and the American Society of Journalists and Authors.

Today I want to explain what has happened since then, for nothing could more vividly illustrate how all this affects you. Without a doubt, every member of this class should be seriously considering whether you want to join our effort to object to the settlement, should it come to that; or, alternatively, to invoke the opt-out provision of the settlement agreement, as currently written, so that you can exercise your right to sue the defendants independently. Under the terms, you would have to opt out within 45 days after the settlement parties commence notice of the settlement by mail.

About that 45-day deadline … What’s the rush? The parties fiddled around in mediation for more than three years -- now they want the rest of us to hop to it without even having a chance to closely examine the settlement? This jarring transition from snail’s pace to express locomotive alone is enough to raise suspicion.

After filing our motion to vacate last month, we asked the settlement parties to consider voluntarily suspending notice. They refused. We then filed with Judge George M. Daniels an emergency application to stay notice. Judge Daniels denied the application but did set a hearing for next Tuesday, May 24, on the motion to vacate.

Ladies and gentlemen, that’s shaping up as a very important date -- perhaps the first of several to come -- in the history of writers’ rights. Stay tuned.

*****

The reason it’s important is that what the settlement parties have done in the last week shows that they’re in deep trouble with this vague and possibly low-balled preliminary settlement, and they know it.

Two new-generation online database operators, FindArticles and HighBeam, have blocked full-text access to my 1988 article for The Washington Monthly, “The [Thwak!] Deregulation of [Thump!] Pro Wrestling.” (The subtitle, for all you fellow scholars of junk culture, is “The bureaucrats behind Hulk Hogan.”)

The shenanigans surrounding the reuse of that work are at the center of my declaration in support of the motion to vacate. (See the court documents at our website, http://freelancerights.muchnick.net.) In 1999 I’d filed the requisite copyright registration, making me eligible under certain circumstances for not just “actual damages,” but also “statutory damages and attorneys’ fees.”

I’m also, via that article and others, a member of the A and/or B and/or C Categories of the class -- depending on how you interpret the settlement agreement, as well as on the ambiguities and discrepancies between the settlement agreement and the notice that’s about to be so breathlessly mailed out.

FindArticles and HighBeam aren’t the only continuing infringers. Some of the core defendants in the case have continued, brazenly, to infringe our works even as negotiations proceeded.

Negotiations that, in the absence of further supporting evidence -- which the preliminary settlement filings don’t provide -- arguably sell out past infringements for pennies on the dollar and simply give away our future rights.

Starting to get the picture?

All readers, of course, are invited to post comments on this blog or to email me privately at info@muchnick.net.

Irving Berlin... Victor Herbert ... They All Look Alike ...

An alert reader has pointed out that Victor Herbert, not Irving Berlin, was the godfather of ASCAP. I've corrected the last post accordingly. "God Bless America" ... oh, wrong one again.

Long-Term Goal: A Real Royalty System

There's a way out of the electronic rights mess. It's a little inconvenient for the most powerful players in the publishing industry, and it's downright burdensome for the smaller players unless we're all creative and flexible, and it cancels the benefits of new information technology if it's applied ham-handedly.

But the solution is at hand. It's called a comprehensive royalty system. The National Writers Union introduced a model called Publication Rights Clearinghouse. The Authors Guild and the American Society of Journalists and Authors followed with another, called the Authors Registry. Legal guru Lawrence Lessig has yet another concept, the Creative Commons.

In the 19th century we had a model for disseminating published material as efficiently as possible throughout our democracy. It's called the public library system.

In a more commercial context in the 20th century, with the advent of recording equipment, a model emerged in the music industry. It's called ASCAP (the American Society of Composers, Authors and Publishers). In some circles ASCAP has a bad rap and justifiably so. What we need today, in response to the marvelous toys that allow a home computer user to download an old magazine or newspaper article at the stroke of a key, is a kinder and gentler ASCAP, one that doesn't scorch the earth by seeking to charge every kind of user for "every bit and byte." We don't need the equivalent of the ASCAP field agents -- as hated by bar owners as the IRS -- policing what shouldn't be policed. We need something more like the broad canvassing of radio airplay of songs, so that appropriate redistributions of profits can be made from publishers to authors.

But you can't set new standards for a new era when only one side is talking and the other is just bullying, and that's what the consolidated class action copyright settlement is about. Or rather, sadly, in its preliminary form, not about. And that's why I've moved to vacate the preliminary settlement.

The database industry was built on piracy -- something that Antonin Scalia, Ruth Bader Ginsburg, and five other Supreme Court justices agreed on in the 2001 Tasini v. New York Times decision. Moreover, it was stealth piracy: the only way freelance writers like you even knew it was happening was if you stumbled across it yourselves, orif someone like me told you.

We can't let them get away with that. By "we" I mean not just independent writers, photographers, graphic artists, and other creators. I mean information professionals. I mean librarians. I mean users. I mean the public.

Contrary to the prophecies of new-tech mystics, many of whom are industry lackeys in disguise, the concept of copyright isn't withering away just because we have a World Wide Web. It just needs to be adapted to changing times. For in the end, if the only people or entities with intellectual property rights turn out to be giant corporations, rather than those of us with the inclination to give our stuff away in appropriate circumstances, how long do you think information will be "free"? (As if it's free today -- the entire national information infrastructure is built on the backbone of an Internet subsidized by taxpayers.)

Look, folks, no one here is saying that a newspaper stringer in Brazil, or a shlub who writes about pro wrestling, has the kind of clout in the publishing industry or in popular culture that hit songwriters had at the last turn of the century. Freelance writers do, however, have value, both commercial and societal value, that must not be undersold. "Casual" workers, without the benefits overhead of staff writers, help keep magazines and newspapers humming, and they know it. In a larger and very real sense, the future diversity and vitality of American culture is at stake.

ASCAP didn't spring forth whole from the forehead of Zeus ... or Victor Herbert. In took years, decades, or organizing, wrangling, even litigating. I was as eager as anyone to declare that this copyright case marked the effective end of that road. Unfortunately, though, the preliminary settlement doesn't cut it.

My website is http://freelancerights.muchnick.net.

What's So Magical About 12/31/02?

The settlement agreement for the consolidated copyright class action (which has been preliminarily approved by the court -- a step I'm currently asking the judge to rescind) provides that any claim for an infringement of a work not registered by December 31, 2002, will be regarded as a Category C (unregistered) claim for purposes of the settlement. Category C claims would pay $5 to $60. Category A (registered) claims would pay up to $1,500.

Why? What's the significance of the December 31, 2002, cutoff date? If there's a legal or practical reason for this provision, it must be explained. But if there's a hidden agenda, that's something else -- something that must be aggressively explored as part of the settlement approval process.

The "associational plaintiffs" (the National Writers Union, the Authors Guild, and the American Society of Journalists and Authors) set up a website, http://www.freelancerights.com, to disseminate information about the settlement. There's a page on which queries are invited. The queries appear to be duly posted, at least in most cases, but many have remained unanswered for weeks. One such query is mine about the 12/31/02 question (fourth or fifth from the top).

Yesterday this matter became more urgent when I discovered that my 1988 article in The Washington Monthly -- whose copyright I registered in 1999 -- was just "blocked" from full-text access at FindArticles, a recently risen article delivery service. It's reasonable to conclude that FindArticles (which is owned by the operator of the LookSmart search engine and has a relationship of some sort with Thomson/Gale, a defendant in the consolidated class action) took this measure as a result of my public project to raise questions about the fairness of the preliminary settlement, and specifically because of the facts presented to the court in my declaration in support of my motion to vacate. (See the documents at http://freelancerights.muchnick.net.)

So I raise the title question of this post -- which originally was projected as next Monday's "Settlement Question of the Week" -- today.

I also invite other freelance writers who are similarly situated to contact me. I'll assist in investigating the history of the availability of your works on for-profit databases without your permission. I've been doing this for 11 years, ever since I organized a writers union campaign we called "Operation Magazine Index." My email address is info@muchnick.net.

Who Needs a Court Record When There's the ASJA Newsletter?

ASJA stands for the American Society of Journalists and Authors. ASJA's central role in the $10-to-$18-million preliminary settlement of the copyright class action suggests that a better name might be LTECR -- for "Let Them Eat Copyright Registrations."

In the upcoming series of posts to this blog, we'll explore in depth the frightening implications of the ASJA weltanschauung. We'll discuss how the preliminary settlement misleads ASJA members (as well as members of the other "associational plaintiffs," the National Writers Union and the Authors Guild -- not to mention the untold thousands of freelance writers who belong to none of these organizations) on the meaning of "statutory damages and attorneys' fees": the heart of the matter. We'll further discuss how the settlement, as currently written, mysteriously lowballs the concept of "actual damages": the other heart of the matter.

Finally, we'll explain why all this affects the fate of independent creators in the brave new digital world, along with the future vitality and diversity of American journalism and culture. And in due course we'll provide a one-link resource guide to copyright registration -- costs, procedures, and how it applies to this case -- in an effort to cut through the ASJA fog machine.

When all is said and done, what we have over here is a position from which more than a decade of blatant infringement by the publishing industry is fully leveraged; sure, damages can be ameliorated or discounted, but only in return for future concessions. Over there you have ASJA/LTECR Land, apparently driven by the view that the trampling of our rights should be sold out for pennies on the dollar even as our future rights are simply given away in perpetuity.

I say "apparently" because these all must remain ridiculously open questions for now. What we can say with certainty at this point is the guts of the current post. ASJA/LTECR Land is run like a Stalinist state, with carefully parceled out dribs and drabs substituting for comprehensive and useful information for freelance writers. Anyone who dares to challenge the party line is censured or drummed out of the club. (Even as we speak one of the three ASJA Forum participants who had the temerity to keep me apprised of the false statements -- about my motion to vacate the preliminary settlement, about my lawyer, and about me -- on that "private" listserv is no doubt being lashed 40 times with a wet noodle.)

In order to understand this in full, let's go back to the court record of In re Literary Works in Electronic Databases Copyright Litigation. Basically, there's no record. In March, with great fanfare and little substance, the three authors' groups announced that the litigation without end was finally coming to an end. For the vast majority of the class, this would amount to $5 to $60 per claim. That is, unless there's nothing left in this suspiciously small settlement fund (which in turn would be "syndicated," or paid off in shares, by many of the largest players in the industry) after the "pre-registered" claimants finished collecting their own whopping claims of up to $1,500.

By no court record, I mean that the docket shows nothing -- nada, zilch -- other than an original complaint filed in 2001. The defendants never formally answered it. The plaintiffs never filed for an injunction. Thus, they "jawboned" for years while infringement continued unabated and while brand-new infringing products and models even sprang up, like FindArticles and HighBeam. And in support of this highly dubious preliminary settlement -- from which we hope Judge George M. Daniels ultimately decides to take a step back -- the parties offer nothing but conclusory statements -- no expert reports, no economic models, no investigative methodologies.

But wait! I spoke too soon. For yesterday I did discover the barest hint of such a document. It's the ASJA newsletter article, "Copyright Infringement Suit Settled," which can be accessed at http://www.asja.org/newspub/x0505a.php. (Program note: I hope to get this blogging thing right in the near future with serviceable links to my web citations. But that step probably has to wait until my 16-year-old son finishes this week's late production nights at the Berkeley High School student newspaper, the Jacket.)

The ASJA piece cheerfully assures us that the settlement is "a windfall" for "those of you who registered your stories regularly" and will likely earn "tens of thousands of dollars." For most of the rest, it's "found money."

"What I have not been able to discuss until now," former ASJA president Jim Morrison hush-hushes, "is how important -- vital -- the information supplied by ASJA was throughout the negotiations." According to Morrison, the claims category breakdowns were based largely on ASJA-supplied PayCheck data and an accompanying analysis by a team of economists.

Why is that report not filed with the preliminary settlement and published at the authors organizations' settlement information website? Enquiring minds want to know.

While we're at it, we also want to know why that website -- http://www.freelancerights.com -- invites queries, then lets those queries, some of which are excellent, just sit there, stacked and unanswered, like a rugby scrum over a fumbled ball. Ah, one blog topic at a time ...

My website, with our motion to vacate and supporting documents, is http://freelancerights.muchnick.net. Eventually I hope to get all of the basic court docs at the authors organizations' site up at my site, too.

ASJA's Confused Response

Several class members have leaked to me comments about the new FREELANCE RIGHTS blog (http://FREELANCERIGHTS.blogspot.com) that were made earlier today by Jim Morrison of the American Society of Journalists and Authors. ASJA is an "associational plaintiff" -- along with the National Writers Union and the Authors Guild -- in a $10-to-$18-million preliminary settlement of a landmark copyright class action over the illegal reuse of previously published newspaper and magazine articles. I have asked Judge George M. Daniels to vacate the preliminary settlement and order the settlement parties to provide the class with information.

Morrison is quoted as making the following comments:

1. "With all due respect, Irv doesn't know his recent case law since the Uncover settlement. Since then, there was the Morris case which established once and for all that writers who had not registered before an infringement occurred and before a suit was brought would have NO standing to sue. Hence, they would not be eligible for anything if the case went to trial. Nothing. Yes, they could register and try to earn damages, but with no possibility of attorney's fees, it's unlikely they would be able to mount a case. If they are, why didn't Irv mount a case on behalf of the nonregistered writers before this. Under the law, only those who have registered *have any standing to sue*."

2. "Oh, and this case would be heard by a judge, not a jury. And that just begins to address his cluelessness."

3. "In his motion, which I've read, he makes a lot of outlandish claims. One of his claims is that attorney's fees of $4.4 million are too high. I certainly wish they were lower. Yet, in the Uncover case he helped settle, the attorney's fees were $2.9 million or 40 percent of the $7.5 million while in this case they are only 24 percent of the $18 million."

4. "We ran a large number of scenarios and it's virtually impossible that the non-registered people will get nothing. We have a sense how many writers actually registered in a timely manner and the number is miniscule. Lower than miniscule, in fact. So the registered writers will not eat up much of the settlement. And, without them, there would be no case. So they're getting what they deserve."

Let's take these in order.

1. Morrison is basing this statement on two decisions by the 2nd Circuit Court of Appeals, known as "Morris I" and "Morris II." Discussion of these cases can be found at
http://pfclaw.com/downloads/Morris%20v.%20Business%20Concepts.htm
and
http://pfclaw.com/downloads/UPDATE%20Morris%20v.%20Business%20Concepts%20Inc.%20article%20for%20website2.htm.

But the Morris cases make my point, not Morrison's. Morris used to be important, but then it got revised. It is not important in the present case because it simply states what we already knew: You do not have standing to sue for copyright infringement until you have registered the copyright. I never said otherwise. Nor did I ever say that a plaintiff can recover statutory damages and attorneys' fees if the registration occurred after the infringement.

2. However, in my May 5 post, "Kicking Off the Discussion," I did assert that "popular notions of 'actual damages or disgorgement of profits' are too cramped." Theories -- mine and others' -- are available to support more ambitious economic models of actual damages than are commonly presumed. And "If the theory can get past the legal challenge -- that is, 'Was it a legally available theory?' -- then the amount of actual damages, at trial, would be set by a jury. Would that number likely be in the range of $10-to-$18 million?"

3. Readers of my motion (posted at http://freelancerights.muchnick.net) can decide for themselves whether it makes "a lot of outlandish claims." Certainly, it never makes the claim "that attorney's fees of $4.4 million are too high." Morrison's statement is false.

4. If the settlement parties "ran a large number of scenarios" establishing that "it's virtually impossible that the non-registered people will get nothing," then those studies or methodologies should be shared with members of the class. The court pleadings in support of preliminary approval proffer no such studies or methodologies, only similarly circular and conclusory statements.

Jim Morrison's email address is jimmor@aol.com. Mine is info@muchnick.net.

SETTLEMENT QUESTION OF THE WEEK: What Took So Long?

On May 5 we launched the FREELANCE RIGHTS blog for discussion of the landmark copyright class action involving illegal reuse on electronic databases of previously published newspaper and magazine articles. See "Launching FREELANCERIGHTS.blogspot.com."

Later that day we kicked off the discussion by examining the $10-to-$18-million total recovery, and the overall structure, of the preliminary settlement. See "Kicking Off the Discussion."

We now introduce a series of posts called "Settlement Question of the Week," and invite further comment and discussion.

In keeping with the mission of our motion to vacate the preliminary settlement in this case, we do not reach a conclusion on the question -- except to assert that much, much more information is required and that the class is entitled to that information.

Specifically, the consolidated class action was filed in 2001, but the court docket shows that the defendant publishers and databases never answered the complaint and the plaintiffs never sought injunctive relief from the court. In common parlance, the named plaintiffs and the industry have been "jawboning" for nearly four years. Meanwhile, infringements continued unabated, lining the pockets of the defendants and harming the interests of the plaintiffs even as the latters' settlement negotiating position was weakened.

Why?

Our website is http://freelancerights.muchnick.net.

Kicking off the discussion

One of the basic questions about the copyright class action preliminary settlement is, Why is the total recovery only $10-to-$18-million (including attorneys' fees of $4.4 million and class notice costs of $1 million)? In the first copyright class action, Ryan v. CARL, the total recovery was $7.25 million. And that was an action against a single document-delivery service, UnCover, using a transitional technology, the fax machine. This case involves dozens of the largest online article services and participating publishers.

A related question is, Why is the preliminary settlement structured so that the vast majority of class members -- those who did not register the copyrights to their works -- are guaranteed to receive almost nothing, and indeed in one scenario (if the pre-registered claimants eat up the entire settlement fund) will receive literally nothing?

Let me address those questions.

First and fundamentally, I reemphasize that my intention is not to scuttle the settlement but to improve it. In the absence of additional information, which so far has not been provided and to which the class is entitled, it's impossible to say much more than that. Attorney Charles Chalmers, a specialist of unparalleled credibility when it comes to examining class action settlements, makes these points brilliantly in our motion to vacate the preliminary settlement.

Second, there's no question that holders of pre-registered copyrights hold a tremendous hammer. Under the law, only they are in line to recover statutory (punitive) damages and, perhaps even more important, attorneys' fees.

That said, popular notions of "actual damages or disgorgement of profits" are too cramped. In the declaration in support of my motion, I attempt to begin explaining a more ambitious economic model of actual damages. For now, the important point is that theories are available. If the theory can get past the legal challenge -- that is, "Was it a legally available theory?" -- then the amount of actual damages, at trial, would be set by a jury. Would that number likely be in the range of $10-to-18-million?

Launching FREELANCERIGHTS.blogspot.com

On April 27, 2005, I filed a motion to vacate the preliminary settlement in a landmark lawsuit over unauthorized reuse of freelance authors' previously published newspaper and magazine articles. The full annnouncement and the court documents are at http://freelancerights.muchnick.net.

In order to handle the overwhelming response to this initiative, and to give it an indispensable element of interactivity, we’re now starting the FREELANCE RIGHTS blog. This is intended to be a “meeting place” for discussing the settlement. I’ll step in to answer questions as best I can.

It is important to note that I do not oppose the settlement. Rather, I have serious questions as to whether the preliminary settlement – recently announced by the National Writers Union, the Authors Guild, and the American Society of Journalists and Authors – is fair. Fair in total, and fair to each of the three groups categorized as having been infringed over the past decade or more. At this point we need substantially more information in order to answer those questions, and that is the relief we are asking from the court. In the meantime, it is a disgrace that infringement has continued unabated. Brand-new products have even sprung up while this case has dragged on – all earning money for the defendants and harming the plaintiffs.

I look forward to building this important conversation and community.