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.)