Sunday, May 22, 2005

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.

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