Friday, May 20, 2005

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.

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