Monday, May 09, 2005

ASJA's Confused Response

Several class members have leaked to me comments about the new FREELANCE RIGHTS blog ( 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

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 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 Mine is


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