Monday, June 20, 2005

The Crimes of Thomson/Gale/Information Access Company (Part 2)

(‘Introducing the Crimes of Thomson/Gale/Information Access Company’

(‘The Crimes of Thomson/Gale/Information Access Company’
[Part 1]

The National Writers Union had its first contacts with Information Access Company -- predecessor of copyright class action defendant Gale Group, owned by Canada’s Thomson Corporation -- in 1994. But those weren’t the last.

In response to our complaint letters to IAC’s Christine Gordon and Robert Howells and to Thomson’s W. Michael Brown, the president and CEO of the Thomson Business Information division, Jerrell W. Shelton, early in 1995 sent identical letters to cited NWU members stating that Magazine Index articles had “erroneously escaped” via the Internet and that “action was taken to remedy” the problem.

Magazine Index was a product marketed by IAC in conjunction with the CARL Corporation of Denver, a for-profit spinoff of the Colorado Alliance of Research Libraries. After we confronted first IAC and then CARL, Magazine Index was indeed shut down. Meanwhile, CARL negotiated with the NWU for an authors’ royalty system for CARL’s own parallel product, the UnCover article delivery service. This led to the creation of the NWU’s collective-licensing agency, Publication Rights Clearinghouse.

But IAC went right on infringing. Our investigation showed that IAC’s Magazine ASAP product not only still copied, distributed, and sold the works of writers of the NWU’s “Operation Magazine Index” campaign. IAC also continued to add new articles by these same rights holders. NWU president Jonathan Tasini complained about this in a letter to Thomson’s Shelton on January 13, 1995. (Tasini noted that 77 writers had now signed on to our campaign, up from the 46 and 66 of previous correspondence.) In his February 2 response Shelton stated: “We remain prepared to support our providers with whatever information we can (including transaction-based data) in order for them to abide by their financial obligations to their authors” (parentheses in original).

On August 17, 1995, on the advice of the publisher of The Washington Monthly, I faxed Sally Roberts Han of IAC’s copyright and licensing department. According to the magazine, Han had informed it, “very specifically, that at this time IAC does not have the ability to track the sale of individual articles.” I told Han, however, that the NWU had acquired copies of an IAC royalty statement contradicting this assertion.

The royalty statement was for Harper’s magazine and it was dated 8/29/1994. IAC royalties to the magazine for the period January – June 1994 totaled $3,864 and were broken down into three categories: $154.16 for “online,” $3,205.60 for “microform,” and $504.77 for “electronic means.” The “electronic means” category was further broken down into 103 “hits” of individual Harper’s articles, at $4.90 per “hit,” via IAC’s library-based InfoTrac retrieval system.

Again via fax, I shared this document with Morris Goldstein, who had succeeded Robert Howells as IAC’s chief executive. Nothing came of the exchange.

As popular newsstand magazines go, Harper’s is an intellectual one with a modest audience. Yet for a single semiannual period in 1994, when the Internet was in its infancy as a platform for widespread access by home computer users, there was incontrovertible evidence of $504.77 in transaction-based royalties from IAC to Harper’s. IAC lied about and obfuscated these facts.

Can you imagine what the universe of revenues has been since 1994 on just these kinds of transactions, for just IAC and Gale Group and Thomson, for all of the many thousands of publications whose full texts they jointly redistribute, with or without the rights to do so, and including many, many magazines and newspapers that are far better known, more widely read, and more frequently accessed than Harper’s?

Then can you imagine multiplying that figure by all of the defendants in the consolidated class action settlement? Then can you imagine adding in not just restitution for these past infringements but also the waiving of all future electronic rights for articles first published in all of these publications, in perpetuity?

Then can you begin to understand why the $10-to-$18-million preliminary settlement is maybe just a little bit ... off the mark? And why -- no matter how the National Writers Union, the Authors Guild, and the American Society of Journalists and Authors, and their assorted minions attempt to justify it -- a meaningful future rights regime for independent creators depends on objecting to this settlement before it's too late?

Irv Muchnick


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