Monday, May 16, 2005

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, 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


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