Saturday, July 02, 2005

Fighting the 'I Guess That's What You Get' Syndrome

Of the dozens of emails, both signed and anonymous, that this blog has received, none better captured the dynamic at work in this awful, miserable, pathetic copyright class action settlement than one I got the other day from an active member of one of the “associational plaintiffs.”

In case you’ve forgotten, the associational plaintiffs are the National Writers Union, the Authors Guild, and the American Society of Journalists and Authors. They’ve been negotiating with the publishing industry for years, in secret, on resolving the “complicated” issue of piracy of freelance writers’ secondary rights. The issue was so complicated that when it got to the Supreme Court, Antonin Scalia and Ruth Bader Ginsburg were on the same side of a 7-2 majority favoring the authors. It was so complicated that the associational plaintiffs, purporting to represent all writers instead of the only things they were qualified to represent -- their own institutional and bureaucratic and vain interests -- never got around to pressing a real lawsuit as the term is conventionally understood. It was so complicated that the defendants, having been caught dead-to-rights, went merrily along infringing, shuffled the licensee deck, and ramrodded through a settlement that would pay off past infringements for pennies on the dollar, as well as, in an especially perverse twist, grab rights in perpetuity in return for 35% of this princely sum.

But back to the insightful email.

“I guess this is what happens,” my correspondent wrote, “when you get writers negotiating with the hand that feeds them.”

Any sentient observer who has been following our settlement objections knows that this bad deal sticks in the craw of the NWU in particular. The former NWU president, Jonathan Tasini, pressed the Supreme Court case, crowed publicly that industry damages were as high as $600 billion -- or $600 million, depending on how full of himself he felt that day -- then sat down with a mediation team that settled on a cap of $18 million, which he proclaimed “found money.”

Activists know this. NWU officers know this. The current NWU president Gerard Colby (who has been quoted as saying that he would have handled things “very differently”) even knows this. But they can’t, or won’t, say as much out loud. The reason is that this gem of a settlement agreement includes the following passage:

The Associational Plaintiffs and their present officers and immediate past presidents will support, and publicly express their support for this settlement. Neither they nor the Representative Plaintiffs will undertake actions intended to encourage class members to opt out of the Class, exercise the removal right provided in paragraph 5(a) above, or otherwise undermine the Settlement Agreement.


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