The Onion Unpeals Google

From The Onion, America's often-imitated, never-duplicated "finest news source":

"Google Announces Plan to Destroy All Info It Can't Index"
http://www.theonion.com/content/node/40076

UnSettlement Held Hostage ... Day 34

Earth to NWU: Do the Right Thing

The National Writers Union website has removed its "Important Message from President Colby and Former President Tasini." This after our blog exposed several amateurish, and non-trivial, errors in their explanation of the July 28 amendment to the UnSettlement. We're back to the terse August 24 pointer to the amended notice (mislabeled 8/22) and the promise that "A fuller explanation will be posted shortly."

Folks, you can't make this stuff up.

Presumably the presidents' words of wisdom are being retooled into Important Message, Version 6.27, by their lawyer Gary "The Dog Ate My Homework" Fergus. When last seen on the national stage, Fergus was testifying before Congress about his counsel to the authors of the infamous "Enron memos" plotting the manipulation of the California energy markets. Fergus performed this public service when he was a partner in the now-defunct San Francisco firm of Brobeck, Phleger & Harrison, which imploded in the dot-com bust.

Back to the NWU. You have two options. You can let this farce play out agonizingly for more months or years. Or you can announce that your lawyers have misled you in the negotiation of this consolidated class action settlement -- most notably with the abominable and unconstitutional "License by Default" -- and that you're killing it.

The latter course would be the best way to honor your victory in Tasini v. New York Times.

UnSettlement Held Hostage ... Day 33

Can't Hide Your Lying Eyes

My August 22 post, “Writers Orgs’ Silence: Curiouser and Curiouser,” http://freelancerights.blogspot.com/2005/08/writers-orgs-silence-curiouser-and.html, labeled the associations’ failure to post prominently the supplemental notice, as required by Judge Daniels’ July 28 order, “nothing short of stunning.”

Here’s the rest of the story.

As I noted last week, plaintiffs’ lawyer Michael Boni faxed an August 15 letter to the court in which he assured the judge that "two of the Associational Plaintiffs posted the supplemental notice on their websites on Friday, August 12, 2005, and the third on Saturday morning, August 13." This was in response to an application by Charles Chalmers, the objectors’ attorney, for what is known as an order to show cause. In an attempt to keep his response out of the official court record, Boni did not deign to answer our formal pleading with a formal pleading. This offhand, lackadaisacal approach is characteristic of the plaintiffs’ lawyers. It exposes, at bottom, contempt for the community of freelance writers they are supposed to be representing.

Not only that, but Boni’s statements were “false,” as Chalmers gently informed the court in a renewed application for an order to show cause on August 18.

So on August 24, another plaintiffs’ lawyer, Gary Fergus, faxed Judge Daniels again. “I informed Mr. Boni that the NWU advised me the notice was posted on August 12. However, because of miscommunications within the NWU and August vacations, the posting was not made until yesterday, August 22, 2005,” Fergus wrote.

Fergus can’t even keep his own lies straight. “Yesterday” from a letter dated August 24 (which is both in the fax machine printout at the top of the page and in the letter text) would be August 23, not August 22. But, in fact, as our blog has reported, the NWU’s notice first went up on August 24, the very day of the Fergus fax.

But that’s not all. Fergus also insisted that the notice of another association, ASJA, was appropriately “prominent.” ASJA has a secondary link, in tiny type, to a March 29 press release touting the original settlement (with no mention of the July 28 amendment) as the greatest thing since sliced bread. There is no mention of the amendment or the supplemental notice on the ASJA home page. Unless something has changed in the last five minutes, there still isn’t.

Some readers have asked me about attorney malpractice. Basically, I’m told, there’s no such thing in class actions, for technical reasons. There is however, the ability to stop a bad settlement. Which this is.

No More Mr. Nice Guy

Thanks to the interactivity of the blog medium, I have discovered, once again, that one of my acerbic analyses of statements by the UnSettlement’s “associational plaintiffs” was … much too kind.

My August 26 post, “(Another) Glaring Misstatement By NWU,” http://freelancerights.blogspot.com/2005/08/another-glaring-misstatement-by-nwu.html, doesn’t have the half of it, a reader points out:

* NWU president Colby and former president Tasini give the wrong deadline for denying the defendants future use of your works. The claim deadline is September 30, and by inference that’s also the deadline for exercising the “takedown” option. Colby and Tasini confuse that with the deadline for objecting to or opting out from the settlement, which is September 12.

* Hilariously, the Colby-Tasini “important message” has false information about copyright registration fees. “It will lead anyone who relies on the information to fill out forms which will NOT register their works,” my reader-critic says. “As a result, it actually discourages registration. The registration fee is not $80 for 10 articles; it’s $30 for an unlimited number of articles published in the same 12-month period.”

* Finally, while I noted Colby-Tasini’s misstatement about statute-of-limitations law, I failed to add the point made here before: Under the “tolling” provision of class actions, separate actions by class members who opt out automatically would reach back at least to August 1997, or three years prior to the original filing of the class actions.

You can join the NWU for as little as $55 for six months. I, personally, would gladly pay Colby and Tasini to take the seminar "Copyright For Dummies" -- so long as they also promise to butt out of our class-action settlement, which they and their brethren associations have badly botched.

UnSettlement Held Hostage ... Day 32

Brits Weigh In Again -- UnSettlement 'Is Surrounded by Controversy'

The only decent coverage of the UnSettlement by writers’ organizations continues to be published abroad. The September issue of Freelance, the newsletter of the London Freelance branch of the National Union of Journalists in the U.K., has a new piece by Mike Holderness headlined “©laim & ©ounter ©laim” (http://media.gn.apc.org/fl/0509copy.html?i=flindex&d=2005_09). This follows up Mike’s account in the July issue, “$18M for freelances? Not enough, say some” (http://media.gn.apc.org/fl/0507copy.html?i=flindex&d=2005_07).

In his update, Mike notes that the settlement “is surrounded by controversy. As far as the Freelance can discover, the negotiations took no account of the situation of writers outside the US and Canada, though the 84-page agreement does explicitly say we can join. Separate actions by groups of Canadian writers may recover much more for them than it offers for all English-language writers, worldwide.”

Furthermore:

[I]nternational law says that all authors shall hold copyright "without formality". In some cases US law recognises that non-US authors must be treated as though we have registered. But that's not what the agreement says.

Co-Objector Todd Pitock: 13 Reasons Why I Oppose the Settlement

Freelance journalist Todd Pitock -- a member of the American Society of Journalists and Authors, and a long-time member and grievance officer of the National Writers Union -- writes: “A lot of people are asking why I became an objector. Here’s what I tell them.”

* $10 to $18 million of what? The NWU long claimed that the d-base companies were worth billions, and that they profited by unfairly using our labor. What were the damages? We don't know because it appears as if no discovery was ever done. Likewise, there is no explanation of the forensic accounting. The ASJA used its Paycheck reports to establish some value, but Paycheck is a limited measure. Although it's true that individual articles have little value, it's the aggregation of articles that gives a d-base its value, which results in subscriptions and advertising. We're being given numbers that lack any context.

* The $ figure is in any case misleading. It's not $10m-$18m to settle our claims. According to the terms, writers get 65% of the listed amounts to address the past infringement. The other 35% is compensation for signing away future rights. So it's $6.5m-$12m to settle the past violations and $3.5m-$6m to acquire future rights. That hasn't been made clear in the announcements.

* The amounts for individuals are appalling. After taxes, Category C's will receive as little as $2.65 and a maximum of about $40.

* In contrast to the paltry amounts rec'd by writers, the lawyers are guaranteed to do extremely well -- $3.8 million off the top. In reality, the settlement is not $10m-$18m but around $5m to $13m (after deduction of attorneys’ fees and administrative costs). (When I raised this with then-ASJA president Lisa Collier Cool, she asked if I was suggesting that "after hundreds of hours of work ... the lawyers didn't deserve to be paid." As I pointed out, if I suppose they put in 999 hours, that's about $3,800/hour -- compared with $2.65 for writers, a figure that makes it unlikely many people will bother to go through the rigamarole of filling out the forms. And no, I'm not against lawyers being paid. The issue, though, is that their compensation should be reasonably in line with the quality of the work they did.)

* The attorneys’ fees are not based on the success of the settlement. If publishers reach the $10m threshold, the class (writers) will have received about $5 million, compared to roughly the same amount for the lawyers and administrators. Such scenarios are precisely what gives class actions a bad name.

* Once publishers pay the minimum $10m, they are not required to pay more. That is, they get to keep what they don't pay. No fund is being set up.

* If publishers do pay $18m, they're free and clear, even if not all infringed writers have been compensated.

* If the money were to run out after payments to Category A's, Category B's and C's (the overwhelming majority of the class) will get nothing -- but they still lose the right to be compensated and they lose the right to pull their work from the d-bases.

* Writers who do not act lose all rights to act under the settlement.

* The settlement is utterly confusing. Accomplished, intelligent writers don't understand the categories. Efforts to clarify and question have largely been met with argumentative responses. No discussion of the settlement terms ever happened. The class was presented with it as a fait accompli.

* Under terms of the settlement, leaders of the writers organizations are barred from discussing its shortcomings. In essence, they've become agents of the publishers. The way this deal might work would be to campaign to have writers accept the 65%, which would force the publishers to negotiate anew for future rights or to improve the terms now. Because of the gag provision, however, no such campaign can take place.

* Why was Jonathan Tasini authorized to negotiate on behalf of the NWU? Tasini, a former NWU president, had no standing and did not represent the rank-and-file.

* One of the lead attorneys on our side has switched to the other side -- an egregious conflict of interest.

I could go on. It's a rotten deal. We sent children to do the work of grown-ups and they got spanked. Or more specifically, they became convinced, based on a questionable reading of a legal case in 2000, that we did not have a case because 99.9% (ASJA's Jim Morrison's estimate) of writers didn't register their copyrights.

UnSettlement Held Hostage ... Day 31

UnSettlement Held Hostage ... Day 30

1. Supplemental notice is not prominently posted, as required by Judge Daniels' July 28 order, at the ASJA website. The ASJA home page doesn't even tell you that the settlement agreement has been amended.

2. The NWU post is prominent, all right -- prominently misleading. President Colby and ex-president Tasini's "important message" continues to hide the untenable and illegal "license by default" provision. It also misstates the law on statute of limitations and attempts to perpetuate the false impression that Category C claimants should be counting their blessings.

UnSettlement Held Hostage ... Day 29

Lest we forget, the plaintiffs are still in violation of Judge Daniels' July 28 order: The ASJA home page still has no acknowledgment of the settlement amendment despite the order to post the supplemental notice prominently.

Anyone who believes this mess will stand up to appellate scrutiny is in fantasyland. Have a nice weekend.

(Another) Glaring Misstatement By NWU

The NWU has a glaring misstatement of the law in today's Colby-Tasini message:

"Why, you may still ask, should you bother? The answer is simple: this may be the only chance you have to collect compensation for infringed articles you wrote in the past. The three-year statute of limitations has already run out for most of these articles, thereby barring most of you from legal action if you wanted to pursue an individual lawsuit instead of joining the class."

The three-year limitations period runs from each infringement. It does not run from the time you wrote the article.

There is some disagreement among the circuits as to when the three-year period begins to run in cases where there's a continuing infringement. Even this could be extended in the current scenario. In a 2004 decision in Polar Bear Productions, Inc. v. Timex Corp., the Ninth Circuit said: "[S]ection 507(b) permits damages occurring outside of the three-year window, so long as the copyright owner did not discover -- and reasonably could have discovered -- the infringement before the commencement of the three-year limitation period."

The NWU is erroneously telling writers that you can no longer enforce these copyrights, so you may as well just join in and get something (albeit small) here. But as objectors' attorney Charles Chalmers has noted, Category C class members are not "lucky to be getting anything" and should not be treated as such.

Yo! Named Plaintiffs!

Today's statement by the NWU makes the extraordinary acknowledgment that the total of claims filed so far amounts to only $350,000. We don't know whether or not any or all of the named plaintiffs have yet filed their claims.

But we do know that many of these writers are in position to make off like bandits if the claim numbers remain depressed. That's because the claim awards would be increased "pro rata." In an April account of the UnSettlement in The New York Observer, named plaintiff -- and Authors Guild honcho -- James Gleick was chortling about his windfall, and the reporter was speculating (perhaps with Gleick as a background source, though he wasn't cited) that some named plaintiffs would collect in excess of $100,000.

What Gleick, and E.L. Doctorow and the others, would be giving the rest of the class in return is the giveaway in perpetuity of all the rights to our works to the hitherto chronically, systematically, willfully infringing defendants. Whether or not we filed claims.

They're Still Hiding the 'License By Default'

Um, we can't, um, talk too much about this, um, but I guess I can tell you this much.

The objectors are considering hiring a team of retired Kremlinologists to help interpret today's statement by the National Writers Union president and former president (see this morning's prior post, "NWU: You Must Help Us Consummate This Historic Failure!"). We've heard that a "director emeritus" of the CIA is looking for work.

Meanwhile, there's this. The NWU -- like all the associational plaintiffs and named plaintiffs and plaintiffs' lawyers and defendants -- is still hiding the "license by default," the UnSettlement's killer provision.

Prez Colby and former prez Tasini say, "Ignoring the settlement is not in your interest." But much more important is what they don't say. Even if you don't file a claim, for whatever reason (including not just that you're ignoring the settlement but that you didn't understand it or you never knew about it during the short and botched notice window), the defendants are taking away your secondary rights. In perpetuity.

The Colby-Tasini contention that "as in most class action settlements for members of a court-approved class, either you make the choice or the choice will be made for you by default," is specious. This is an unprecedented abuse of the class-action system. And it will not stand.

NWU: You Must Help Us Consummate This Historic Failure!

Yes, folks, I've seen the collection of dross and drivel posted at the NWU website today under the headline "An Important Message from NWU President Colby and Former President Tasini." As they say in UnSettlementese, I'll be commenting "more fully later."

Basically, the NWU is panicked because claims are low, as well they should be. If the author associations don't pull off this settlement, then they'll lose their leverage for similar incompetent sellouts in the future. And what a shame that would be!

UnSettlement Held Hostage ... Day 28

The ASJA home page still has no acknowledgment of the July 28 settlement amendment. Inside the website, in fine print with accompanying a five-month-old news release, is a link to the supplemental notice that a court order had required to be posted "prominently."

The NWU website has a link and the promise of a "fuller explanation later." What are they waiting for, the junior prom? The objection/optout deadline is September 12.

Sizing Up the NY Times Public Editor: Small (Vague), Medium (Disingenuous), Large (Misinformed)

Byron Calame, the public editor of The New York Times, has not responded to my comments on his August 14 column about freelancers (see http://freelancerights.blogspot.com/2005/08/ny-times-public-editor-on-freelancers.html).

But writer (and settlement objector) Todd Pitock did get something back from Calame, and with Todd’s permission here’s the exchange.


From: Public/NYT/NYTIMES <http://us.f607.mail.yahoo.com/ym/Compose?To=public@nytimes.com&YY=68663&order=down&sort=date&pos=0&view=a&head=b>
To: Todd Pitock
Sent: Mon, 22 Aug 2005 14:07:46 -0400
Subject: 8/22 Re: ethical guidelines, facts, and the public editor...

Dear Mr. Pitock:

Thank you for your message and your careful reading of the column on freelancers.

I have reviewed your e-mail carefully and had other editors do the same. We don't think the sentence in my column is incorrect.

Since The Times had published--and wanted to continue publishing--freelance contributions electronically, it was required to negotiate broadened contracts with freelancers to comply with the court decision. In negotiating broadened contracts with freelancers, who gained leverage from the court ruling, the paper found itself having to increase their compensation, particularly where it wanted to use that person on a regular basis.

Sincerely,
Byron Calame
Public Editor
The New York Times

Note: The public editor's opinions are his own and do not represent those of The New York Times.

*****

From: Todd Pitock
Subject: Re: 8/22 Re: ethical guidelines, facts, and the public editor...
To: Byron Calame

Dear Mr. Calame,

A more exact wording would have been, "In light of the court decision, the Times felt it necessary to ask freelancers to license more/all rights." Saying that the court decision required a change is vague at best. The court did not require the change. It only said that the Times had been violating the freelancers' intellectual property. It did not suggest or require a specific solution; the Times took the route it considered least arduous, and which freelancers saw as the most harsh. And, if we really want to be honest, the Times changed its contract to all rights years before the court decision. So, let's size it up as small (you were vague), medium (disingenous), or large (misinformed).

Likewise, it just ain't so that the Times increased its budget -- or at least not in my experience or that of the many, many freelancers I know who contribute to the Times. Fact is, the Times has been egregiously disrespectful of freelancers. One of your own editors told me some time ago that she was having trouble attracting writers she wanted to work with. I asked her why she didn't share that with the powers that be, and she said, "In 15 years here, no one has asked my opinion yet."

Finally, another point occurred to me about your column. You mentioned Jayson Blair -- yet neglected to mention that he was on staff. Since the column was about freelancers at the Times, it too was vague, leading a reader to think that Blair was an errant freelancer. In any case, I appreciate that you took the time to reply.

Best wishes,
Todd Pitock

NWU Dips a Toe into the Pool; Now It's ASJA's Turn

Under the misleading home-page headline at http://www.nwu.org, "New Settlement Amendment Widens Scope of Coverage (8/22/05)" -- which was just put up today, August 24, not August 22 -- is the following linked content inside:


Settlement Amendment Widens Scope of Copyright Settlement Coverage

As a result of a recent amendment to the $18 million copyright settlement approved by the court, the time for you to opt out of the class action settlement, file an objection, or opt back in if you have excluded yourself has been extended to September 12, 2005.

Additionally, because defendant publishers also sold articles to Amazon.com and Highbeam Research in recent years, the latter companies are included in the settlement. All articles registered with the U.S. Copyright Office before the sublicensing and delivery of those articles to Amazon.com (in most cases these articles were licensed on April 1, 2005) or Highbeam Research (in almost all cases onNovember 2003) will now be reclassified from Category B to the higher paying Category A.

A fuller explanation will be posted shortly. Meanwhile, read the [link] formal notice of the amendment posted by the court.The NWU urges writers to claim their share of the $18 million settlement if electronic databases have used their work, [link] click here.

UnSettlement Held Hostage ... Day 27

On July 28 Judge George B. Daniels granted preliminary approval to an amended settlement. Judge Daniels also signed a court order by which the parties agreed to post the supplemental notice, prominently and within ten days, at the websites of the three associational plaintiffs: Authors Guild, American Society of Journalists and Authors, National Writers Union.

Today is 27 days since then. There's still no mention of the amended settlement or supplemental notice on the home pages of ASJA or NWU. The deadline for objections or opt-outs is September 12.

Writers Orgs’ Silence: Curiouser and Curiouser

The following chronology is nothing short of stunning:

JULY 28
Court grants preliminary approval to an amended settlement. Judge Daniels signs an order requiring that supplemental notice to the class be posted “prominently” within ten days on the websites of the three “associational plaintiffs.”

AUGUST 7
Supplemental notice still not posted on any of the websites.

AUGUST 11
Still nothing. Objectors’ attorney Charles Chalmers serves on the plaintiffs’ and defendants’ counsel a request for an order by the court to them to show cause why they have not obeyed the July 28 order.

AUGUST 15
Plaintiffs’ co-lead counsel Michael Boni faxes a letter to the court stating that "two of the Associational Plaintiffs posted the supplemental notice on their websites on Friday, August 12, 2005, and the third on Saturday morning, August 13." In fact, only the Authors Guild’s website has complied; the National Writers Union’s and the American Society of Journalists and Authors’ have not.

AUGUST 18
Objectors serve a renewed request for an order to show cause. Chalmers points out that Boni’s statements are false.

AUGUST 23
As of midnight Eastern time, the NWU and ASJA sites remain non-compliant.

P.S. to Open Letter to E.L. Doctorow

This also applies to the other named plaintiffs in the copyright class action settlement. In alphabetical order they are:

Michael Castleman
Tom Dunkel
(the late) Andrea Dworkin
Jay Feldman
James Gleick
Ronald Hayman
Robert Lacey
Ruth Laney
Paula McDonald
P/K Associates, Inc.
Letty Cottin Pogrebin
Gerald Posner
Miriam Raftery
Ronald M. Schwartz
Mary Sherman
Donald Spoto
Robert E. Treuhaft and Jessica L. Treuhaft (Mitford) Trust.
Constance Romilly, Trustee
Robert Vaughan
Robley Wilson
Marie Winn

OPEN LETTER TO PLAINTIFF E.L. DOCTOROW -- 'Please Stop This Terrible Settlement'

Dear E.L. Doctorow:

Though I don’t know you personally, I’ve read your work and I admire it. The reason I’m writing to you is that I consider you one of the genuine literary giants of our time, and I’m concerned that your legacy will be sullied by having lent your name to the pending copyright class action settlement. Please take a few moments to listen to the following points and consider changing your position. There’s still time -- the deadline for objecting or opting out is September 12.

I have no doubt that you, like all the other named plaintiffs, acted in good faith when you agreed to represent freelance authors in the litigation against the print and electronic publishing industries for their years of systematic and willful infringement of our works originally published in magazines and newspapers. You had no way of knowing that the lawsuits filed in 2000 -- and buttressed by a Supreme Court ruling the following year -- would yield to years of passive mediation before morphing into the worst sellout ever of writers’ rights, as well as an egregious abuse of the class-action system.

But yield and morph it did, and now you know. Mr. Doctorow, this is a very, very, very bad deal. Bad for your fellow authors. Bad for information consumers. Bad for the future vitality and diversity of American journalism and culture.

I’ve been involved in leading one of the several groups of objectors to the settlement, who come from various perspectives. For several months we’ve been submitting arguments and evidence to, and asking questions of, the court. I invite you to peruse my website, http://freelancerights.muchnick.net, and my blog, http://freelancerights.blogspot.com. Rest assured that should Judge Daniels approve this deeply and fatally flawed settlement on September 27, appeals are inevitable.

There are many problems with both the merits and the procedures of the settlement. But for the moment I respectfully ask you to focus on one of them. It’s the one that all the objectors and opt-outers agree on; the killer provision. Objectors’ attorney Charles Chalmers has labeled it the “License by Default.”

Let me start by explaining that when the class actions were filed, you and the other named plaintiffs were all owners of registered copyrights. The lawsuits said that you were there to represent the holders of registered copyrights only. (Three authors’ organizations, including your own Authors Guild, were listed as “associational plaintiffs.” The plain truth, however, is that despite their good work in many other areas, they had absolutely no business acting as class representatives.)

In the name of E.L. Doctorow and others, what has emerged is a settlement providing relatively decent compensation to holders of registered copyrights (referred to as Category A’s and Category B’s). With the recent amendment to the settlement, a good portion of the B’s will convert to A’s. I and others think the A claim awards should be a lot higher, but it’s true that A’s with a fair number of infringed works stand to make good money: $25,000, $50,000, or as The New York Observer speculated, as much as $100,000. Some of these beneficiaries, if not most or almost all of them, would be you named plaintiffs.

Now, how did you get yourselves in position for this windfall?

You did so by agreeing to give the defendant database companies and participating publishers -- virtually the whole industry -- free licenses in perpetuity for every freelance article written after 1978 and ever carried in a database. There is just no nicer way to put it.

Did you clearly tell the class you'd done this in your notice? No. On the contrary, your lawyers used the notice to mislead the class into believing that only those who made claims, and consciously chose to grant licenses, would be giving up their future rights.

And it’s not just the unregistereds -- the Category C’s -- who are being sold out. It’s also other A’s. If someone sold an excerpt from a book to a magazine or a newspaper, it’s likely the whole book would be licensed to the databases. So if certain A class members, with timely pre-registered copyrights, don’t receive or hear about the notice, or don’t feel like filing claims (they're old, they're dead, they're sick, they're on extended vacations, their children are in deep trouble, they can’t be bothered with class-action notices consisting of page after page of dense legalese in tiny type), they'll never have a chance to prevent Doctorow et al. from granting a license to their freelance works in perpetuity to the same entities that have been knocking them off for years or decades without their knowledge.

That is shameful, Mr. Doctorow. There should be rage in the freelancer community. And you, because of your prestige and comparative security in the literary world, should be leading the protests rather than enabling the outrage.

Yes, you relied on your lawyers. That explanation was plausible then. But no longer. Perhaps you should be asking your lawyers about the chance that a court of appeals will be writing an opinion in a couple of years, in a case with your name on it, supposedly for the purpose of protecting the rights and interests of other writers. I, personally, am confident that such an opinion will call this settlement an unfair, collusive, abusive sellout. When Mr. Chalmers writes our appeal brief, we’ll have no choice other than to make it crystal-clear that the class representatives sold out the class for personal gain.

Do courts actually say such things? You bet.

In Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997), Justice Ginsburg wrote that the fairness inquiry in class actions protects unnamed class members “from unjust or unfair settlements affecting their rights when the representatives become fainthearted before the action is adjudicated or are able to secure satisfaction of their individual claims by a compromise.”

In Mirfasihi v. Fleet Mortage Corp., 356 F.3d 781 (7th Cir. 2004), Judge Richard Posner flatly stated that the district judge had approved a settlement selling 1.4 million claimants down the river.

Mr. Doctorow, I wouldn’t relish seeing such characterizations applied to you and your role. But I’ve been working on the problem of writers’ secondary rights for more than a decade, as have many others, and we’re not about to let this terrible settlement stand as the last word. Please think about it and please feel free to get back to me with any questions you might have.

Sincerely,
Irv Muchnick

NWU, ASJA -- Time For an Exit Strategy

The new deadline to object to, or opt out from, UnSettlement 2.0 is 24 days away -- September 12. And we class members still can't rely on our putative representatives to publicize in a clear fashion the most basic information that would help us figure all this out.

Why?

I think one of the three associational plaintiffs, the National Writers Union, wants out of this deal. I think another association, the American Society of Journalists and Authors, may want out.

The NWU was never wildly happy in the first place about what emerged from the years of negotiations. They were spearheaded on their end by long-time president Jonathan Tasini, whose hand-picked successor was trounced in the last election.

ASJA initially was a big booster of the settlement. But the details that have come to light since the euphoric March 29 announcement have exposed the preliminary agreement's deep and fatal flaws. I won’t belabor those flaws, which have been reported and developed exhaustively in objectors’ court filings and on this blog. Right now I’m simply observing how the rank-and-file at two of the associations are teetering, if not revolting, and I’m going to suggest what the organizations should do about it.

Of course none of this applies to the Authors Guild. Led by ex-general counsel Kay Murray -- now an in-house lawyer for participating publisher Tribune Company -- the Guild remains rock-solid for the settlement. The Guild is the snootiest and least confrontational, and therefore the least representative, of the class rep associations.

ASJA would like to regard itself as the Guild’s little brother, but that illusion can no longer be sustained in the current scenario. Perhaps that's why former ASJA president Jim Morrison -- second only to the Guild's Murray as the most vocal proponent of the settlement -- now seems to be subtly undermining it. Under the settlement agreement, the associations aren’t supposed to be encouraging writers even to exercise their option to withhold future rights (and, in the process, accept a 35 percent reduction in their settlement claims). According to reliable reports, however, Morrison has commenced doing just that.

But the NWU and ASJA may feel trapped. They’re probably embarrassed by how badly the publishing industry, enabled by the Guild, has taken them to the cleaners. They may also be worried that backing out of the deal will expose them to legal action by the defendants.

Your humble blogger’s opinion is that the NWU and ASJA have less to worry about from pulling back than they do from making ineffectual gestures to their constituents that they’re following through under duress and with (justifiably) nil enthusiasm. A far more constructive tack would be for NWU and ASJA to bite the bullet, tell the court that their lawyers didn't adequately explain to them the implications of things like the License by Default, and reset the negotiations. I doubt that multibillion-dollar publishing companies would try to bludgeon these tiny nonprofits for their perfectly understandable refusal to take the UnSettlement to the finish line; they’d come off as the worst sort of bullies if they did.

ProQuest: It Just Gets Worse

An alert reader has pointed out yet another possible level of deception with respect to the settlement's release of ProQuest, a move engineered by the Authors Guild. (See “ENABLING INFRINGEMENT: A Closer Look at the Authors Guild-Driven ProQuest ‘Standstill Agreement’ That Wasn’t,” http://freelancerights.blogspot.com/2005/08/enabling-infringement-closer-look-at.html, and “More on ProQuest," http://freelancerights.blogspot.com/2005/08/more-on-proquest.html.)

It’s true that much of ProQuest’s current infringing content is microform-like -- though I dispute whether many of the ProQuest Archiver articles that I’ve seen would truly be considered legit in the wake of the Tasini case.

But this reader says a lot of ProQuest stuff is not in microform. It’s in the same classically infringing ASCII-text format used by other defendants. So what gives?

I’d like to ask the Authors Guild’s former general counsel, Kay Murray, to explain. Unfortunately she now works for the Tribune Company and therefore is even more susceptible to taking the publishers’ side rather than ours. I suggest that we all direct queries to Paul Aiken, the Guild’s executive director. I know I will. Aiken can be emailed at staff@authorsguild.org or faxed at (212) 564-5363.

ASJA Joins Objectors! (Well, Sort Of)

Readers of an online forum of the American Society of Journalists and Authors inform me that Jim Morrison, former ASJA president, is advising writers to withhold future electronic rights when they submit claims for the UnSettlement.

Paragraph 9 of the settlement agreement says: "The Associational Plaintiffs and their present officers and immediate past presidents will support, and publicly express their support for this settlement." Presumably this doesn't apply to Morrison because a new-new ASJA president was just installed, making him no longer the immediate past president but the immediate past president to the immediate past president. Still, the agreement also bars the associations from "undermining" it, which is defined as including actions “intended to encourage class members to … exercise the removal right in paragraph 5(a) …” (See “Not Just a Sellout -- a Giveaway,” http://freelancerights.blogspot.com/2005/07/not-just-sellout-giveaway.html.)

Shhh. Let’s nobody mention that Morrison is arguably violating the agreement he has touted for months. And now that he’s drifting toward our side, let’s encourage him to go all the way and back out of this whole terrible deal before it’s too late.

Publisher Ox, Gore Thyself

Google has suspended its project to scan copyrighted library books so that publishers have a chance to inform it which of their books they don't want to allow to be included.

The reaction of Patricia Schroeder, president of the Association of American Publishers: "We think this knocks the notion of copyright on its head. It sets a terrible precedent.... I've never seen our members so solidified. Publishers and authors are investment bankers in copyright. There's great alarm among our members."

Imagine that -- freely reusing copyrighted works on the basis of a "license by default."

But wait a minute! That's exactly what publishers are trying to do to freelance writers in the copyright class action settlement.

NY Times Public Editor on Freelancers

Date: Sun, 14 Aug 2005 09:30:57 -0700 (PDT)
From: Irvin Muchnick
Subject: Freelancers
To: Byron Calame

Dear Mr. Calame:

Your piece about the ethical and editorial complexities of contracting with freelance writers was very interesting. But I found your reference to the consequences of the Supreme Court’s 2001 Tasini decision cryptic and incomplete ("Outside Contributors: In The Times, but Not of The Times," August 14).

There’s no need to regurgitate my whole speech, as I know corporate restrictions would prevent you from faithfully transcribing and reporting it. Instead, let me point you to my website, http://freelancerights.muchnick.net/, and to my blog, http://freelancerights.blogspot.com/, and invite you to cover the current fight surrounding objections to the $10-to-$18-million copyright class action settlement on behalf of freelancer writers that is up for court approval.

If you do so with integrity, you’ll see that the Supreme Court did not “require broadening the standard contracts to include electronic use.” Rather, a 7-2 majority, including both Antonin Scalia and Ruth Bader Ginsburg, said that The Times and other publishers were in violation of copyright law, and added: “The Authors and Publishers may enter into an agreement allowing continued electronic reproduction of the Authors’ works; they, and if necessary the courts and
Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution.”

In sum, this was a strong suggestion from the Court for the establishment of a fair and reasonable royalty system, which freelancers have long advocated and publishers have
stonewalled.

Irv Muchnick

*****

From: "Public/NYT/NYTIMES" <public@nytimes.com>
To: Irvin Muchnick
Date: Sun, 14 Aug 2005 12:32:13 -0400

Thank you for your comments. Everything sent to this mailbox is read by either me or my associate, Joseph Plambeck. If a further reply is appropriate, you will be hearing from us shortly.

Don't forget, when referring to a specific article please include its date, section and headline.
If you do not wish your message to be published or relayed to other editors and reporters, be sure to let us know.

-- Byron Calame
Public Editor

The Public Editor's web page is available at the following link:
http://www.nytimes.com/top/opinion/thepubliceditor/index.html

Byron Calame's web journal can be accessed at:
www.nytimes.com/byroncalame

FLASH! Authors Guild Website Acknowledges Settlement Amendment

Two weeks and one day after the fact, the Authors Guild has gotten around to acknowledging that the UnSettlement has been amended. The home page at http://www.authorsguild.org is now headlined, "Class Action Settlement Amended to Cover Amazon.com and Highbeam." Inside is the text of an email to members headed, "Regarding the Notice of Amended Settlement."

Now it's your turn, ASJA and NWU. Everyone into the pool!

The Authors Guild note is characteristically cryptic and spins like a top. "If you've registered your copyright in some of your freelance articles, and you're not sure whether your freelance articles are available at those websites, search them here: Amazon: www.Amazon.com; Highbeam: www.Highbeam.com." That's not terribly helpful, especially with respect to Amazon, where I think the new infringer is the A9.com search on the top-right corner of the Amazon home page.

Silence of the Lambs

Remember the hype machine in late March and April, when the preliminary settlement was announced? The Authors Guild, the American Society of Journalists and Authors, and the National Writers Union put the news release on the front pages of their websites. They set up a joint "informational website." They all but claimed that securing $10-to-$18-million for decades of systematic infringement by just about every known major publisher was the greatest feat since Roger Bannister broke the four-minute mile.

On July 28, instead of giving final approval to the settlement, the court gave new preliminary approval to an amended settlement. By court order, the amended settlement agreement was supposed to be posted on the associational plaintiffs' websites. But it's not there.

The settlement amendment provides a significant -- 10-fold -- increase in compensation for some members of the class in Category B. Perhaps a very large number of members. Yet now the associations are silent.

You explain it to me.

NWU Grievance Officer Comments on Kay Murray Scandal

On the CNI-Copyright forum, Mike Bradley -- long-time grievance officer and contract advisor at the National Writers Union, and the NWU's former National Grievance Officer -- has this to say about the defection of Authors Guild general counsel Kay Murray to settlement "participating publisher" Tribune Company:

I guess Ms. Murray is a wonderful person and fine attorney. But isn't her move exactly the sort of move that lies at the heart of the corruption so many of us complain about in politics? A person works for a government regulator then works for the regulated industy then manages a government dept then works as a lobbyist lobbying the same dept, and so on.

The revolving door is a practice condemned by every non-partisan good-government watchdog. It inevitably presents serious conflicts of interest and has been shown to undermine honest dealings in government and industry alike.

Thanks, Mike.

Mailbag: More on Kay Murray -- And Kenneth Feinberg

Today’s CNI-Copyright mailbag brings more messages from folks who are shocked and appalled by the idea that the ethics of Kay Murray could be questioned. This after she left her job as general counsel of the Authors Guild to become an in-house lawyer for the Tribune Company -- while the copyright class action settlement that she helped negotiate faces serious and credible objections and has not gained final approval.

Lloyd Jassin echoes the character references for Murray. Meanwhile, John Noble rises to the defense of mediatorKenneth Feinberg, “as diligent and decent a lawyer as I know, and as good a mediator you're going to find anywhere.” Bully for them. Messrs. Jassin and Noble’s messages are reproduced below in full.

Now, Mr. Jassin: Kindly address the facts. What part of what Murray has done is justifiable? What part of pointing this out is not?

Mr. Noble: Kindly comment on the following arguments in objectors’ attorney Charles D. Chalmers' memorandum in support of the objections to the settlement (viewable at http://muchnick.net/Memo.pdf):


The Mediation Process Was Flawed By The Mediator’s Fee Structure.

The Settlement Agreement indicates he will receive, a“mediator’s success fee.” Settlement Agreement, 1.b.(3).There is an indication in the Settlement Agreement that the mediator has not been paid, by plaintiffs, for work performed in February and March 2002. ( 1.b., p. 4.) The Model Standards for Conduct For Mediators discourages contingent fees. Scott R. Peppet, Contractarian Economics and Mediation Ethics: The Case for Customizing Neutrality Through Contingent Fee Mediation, 82 Tex. L. Rev. 227,242-243 (2003). The Comments to the Standards specifically state that "[a] mediator should not enter into a fees agreement which is contingent upon the result of the mediation or amount of the settlement." Id. This is due to the potential for abuse to diminish confidence in the process. Id. The Ethical Guidelines for Mediators promulgated by the Association of Attorney-Mediators bar contingent fees even more explicitly than do the Model Standards of Conduct for Mediators. Id. at 244. The rules of many courts prohibit contingent fee agreements for mediation. Id. at 247, notes 91 and 92.

Professor Peppet identifies three acknowledged reasons forcriticism of contingent fee mediation. The first is that itcan distort the mediation process. “The mediator might push for settlement even when settlement is not in the parties’ best interests.” Id. at 259. The second is that it undercuts the parties’ self-determination. “If a mediator takes a stake in a dispute through a . . . a success fee, the mediator may be so motivated to push the parties in a particular direction that the mediated outcome can no longer be considered party-driven or self-determined." Id.at 260. Third, the use of a contingent fee mediation may create the appearance of impropriety, even if none occurs.This is the reason many ethics codes for mediators prohibit the practice, particularly with court-connected mediations, where the mediator serves as an officer of the court. Id.at 260-261. Contingent fee mediation may “cast a shadow onthe mediation process.” Id.

Mr. Feinberg knows that using this fee structure is considered “very controversial.” Kenneth R. Feinberg, SYMPOSIUM ON MASS TORTS: REPORTING FROM THE FRONT LINE - ONE MEDIATOR’S EXPERIENCE WITH MASS TORTS, 31 Loy. L.A. L.Rev. 359, 365 (1998). Many professionals in the dispute resolution field believe that contingent fees should never be used. Carrie Menkel-Meadow, THE LAWYER AS CONSENSUS BUILDER: ETHICS FOR A NEW PRACTICE, 70 Tenn. L. Rev. 63, 96(Fall 2002). It is frankly amazing that Mr. Feinberg, serving as the mediator in court-ordered mediation, would employ a compensation scheme which he knows to be controversial, and which could call into question the propriety of the mediation. In this case several years have gone by without any litigation activity due to this mediation.

*****

To: "CNI-COPYRIGHT -- Copyright & Intellectual Property"<http://us.f607.mail.yahoo.com/ym/Compose?To=CNI-COPYRIGHT@cni.org&amp;amp;YY=75537&order=down&sort=date&pos=0&view=a&head=b>
Date: Thu, 11 Aug 2005 12:25:46 -0400
From: Copylaw@aol.com
Subject: [CNI-(C)] Re:

In a message dated 8/10/05 6:10:55 P.M. Eastern StandardTime, http://us.f607.mail.yahoo.com/ym/Compose?To=jrfriedman@litproplaw.com&amp;YY=75537&order=down&sort=date&pos=0&view=a&head=b writes:

Gloria Phares replies:

I am more than astonished by the tenor of these remarks. But since you've posted your views to the whole list, I'm responding to the whole list. I know nothing about the terms of the settlement and have no opinion about it. ButI know Kay Murray professionally and personally. Not only is she a lovely person, but she is honorable and will certainly respect the attorney-client privilege. Authors and the Guild have been incredibly well served by her these past nine years, and you should be glad that this publisher will have a lawyer within its ranks who is so sensitive to authors' issues.

-- gcp

Gloria C. Phares
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, N.Y. 10036
(212) 336-2686


I also endorse attorney Phares' comments concerning KayMurray's character and professionalism. -- Lloyd Jassin

Law Offices of Lloyd J. Jassin
The Actors' Equity Bldg.
1560 Broadway, Ste. 400
New York, NY 10036
212-354-4442 (t)
212-840-1124 (f)
visit us at www.copylaw.com

*****

To: "CNI-COPYRIGHT -- Copyright & Intellectual Property"<http://us.f607.mail.yahoo.com/ym/Compose?To=CNI-COPYRIGHT@cni.org&amp;amp;YY=75537&order=down&sort=date&pos=0&view=a&head=b>
Date: Thu, 11 Aug 2005 12:25:46 -0400
From: "JFN" <http://us.f607.mail.yahoo.com/ym/Compose?To=jfnbl@earthlink.com&amp;amp;YY=75537&order=down&sort=date&pos=0&view=a&head=b>
Subject: [CNI-(C)] Re: FREELANCE RIGHTS: Authors GuildLawyer Exits Via the Revolving Doo

And Ken Feinberg is as diligent and decent a lawyer as I know, and as good a mediator you're going to find anywhere. As a freelance writer and lawyer, I've been leery of the tone of this campaign since we started getting bulletins here. I just wrote it off as a quixotic obsession.

John Noble

More on ProQuest

The purpose of this blog, my fellow writers, is not to snow you. The UnSettlement releases defendant ProQuest for all of its databasing. This is an indirect indication that the class representatives have accepted a ProQuest argument that its is a non-infringing microform-style system.

In all candor, that argument has a little more heft than the pitiful rationalizations of some other defendants in the wake of the Supreme Court’s Tasini ruling. Photographers, for example, may have overreached in post-Tasini cases against National Geographic, which reaffirm the principle that the key is whether individual works within a collective work are presented “in context.” Library microfilm is the obvious model.

My point is that authors might win some and lose some in the final shape of comprehensive negotiations for a fair future rights regime. But in the meantime what gave the Authors Guild and their mouthpieces at Kohn, Swift & Graf the right to give away this piece of the negotiation in secret?

As long as we’re on the subject, let me add that I do not believe that the New York Times/ProQuest partnership hews to copyright law either. I’ve ordered my two 1989 New York Times Magazine articles from the ProQuest Archiver. Neither one is “in context.”

“Joe Montana: State of the Art” -- a profile of the star quarterback -- omits the inside frontispiece photo with the note: “Blocked due to copyright. See full page image or microfilm.” On the back-of-the-book “jump” pages the columns are repasted, like galleys, without the original adjoining advertisements. “Rich Makes His Pitch” -- a story about the city of Buffalo’s bid to land major league baseball -- has parallel idiosyncrasies and gaps.

So if the class representatives accepted the argument that ProQuest was kosher, I think they were lazy at best, corrupt at worst. What else is new when it comes to the UnSettlement?

ENABLING INFRINGEMENT: A Closer Look at the Authors Guild-Driven ProQuest 'Standstill Agreement' That Wasn't

So far I haven’t had much to say about how the UnSettlement handles the decades of systematic infringement by principal defendant ProQuest, formerly known as Bell & Howell, and one of whose divisions formerly was known as UMI. But the time for an in-depth examination has come with the departure of the Authors Guild’s Kay Murray, who made a soft landing in the legal department of the Tribune Company (http://freelancerights.blogspot.com/2005/08/authors-guild-lawyer-exits-via.html).

In applying for their portion of $3,804,152.71 in fees, the Guild’s outside counsel -- the Philadelphia firm of Kohn, Swift & Graf -- cite in passing having “researched and responded to ProQuest’s image-based archiving of newspapers, including negotiating a standstill agreement as an alternative to plaintiffs’ seeking injunctive relief.”

I have a number of observations about this, the first being that the class representatives and their lawyers have sure been big on “alternatives” to seeking injunctive relief. One of the most blatant inadequacies in their performance throughout this litigation has been their failure to litigate, as that term is conventionally understood. Pressure drives fruitful negotiations. These self-appointed custodians of our rights never missed an opportunity to miss an opportunity to exert some.

My second observation about the ProQuest “standstill agreement” is that this was news to me when I read about it in the lawyers’ fee application. I had been aware of some other random cockamamie work that got “coordinated” with these class actions -- for example, a “partial settlement” that Kohn, Swift negotiated with The New York Times, whereby The Newspaper Of Record toned down its bullying campaign to get freelancers to sign a “Restoration Request,” a coercive and retroactive grab of rights to previously published works.

Indeed, the Guild website has all manner of hype about the New York Times half-a-deal. It even suggests, misleadingly, that this initiative, with legal scholar Derrick Bell as a named plaintiff, is formally part of this consolidated class action. It is not.

As far as I can tell, however, there’s not a word in the AG online archive about the ProQuest “standstill agreement.” (For background, see paragraphs 18-20 of my declaration in support of the objections to the settlement, which can be viewed at http://muchnick.net/Muchnick.pdf.)

Which leads to my third observation: What standstill agreement with ProQuest? It looks more like, at best, a running-in-place agreement. Or a closing-the-barn-door-after-the-horses-are-out agreement. Or a let’s-everybody-do-the-collusion-conga agreement.

The reason I say this is that ProQuest does, in fact, infringe hundreds of thousands, if not millions, of old articles for which the authors control the secondary rights. It did so and it still does so. It hasn’t stopped. It certainly hasn’t stood still. According to Information Today, ProQuest’s contract to deliver copies of articles from the New York Times archive (whether or not there has been a “Restoration Request,” I might add) grosses an estimated million dollars a year.

And the UnSettlement -- inexplicably, stealthily -- enables this outrage. Look at paragraph 7, “Removal of Subject Work,” from the instructions for completing the claim worksheets: “You have the option of requiring the removal of some or all of your Subject Works from the electronic databases (except ProQuest, which is an image-based, ‘microform’ format) [italics added].” You won’t find such language anywhere in the notice itself.

I ask: Precisely who authorized the giveaway of this lucrative future revenue stream? Apparent answer: the Authors Guild and Kohn, Swift. And they can’t get away with it. After all, they never even bothered to make a case. They never even tried to get a class certified.

Mailbag: Authors Guild Lawyer Exits Via the Revolving Door

This is in response to three replies to my post to the CNI-COPYRIGHT list, “FREELANCE RIGHTS: Authors Guild Lawyer Exits Via the Revolving Door.” The replies are reproduced below.

Gloria Phares is “more than astonished by the tenor of these remarks.” (And Jessica R. Friedman seconds her comments.) For my part, I am more than astonished that Ms. Phares chose to leap to the defense of former Authors Guild general counsel Kay Murray -- now employed by the Tribune Company -- even though Ms. Phares admits she knows “nothing about the terms of the settlement” Murray helped negotiate before switching sides without even finalizing the settlement. The issue is not whether Murray is a lovely person, but whether her legacy as a lawyer “so sensitive to authors’ issues” might be a tad ... tainted ... by this chain of events, if not by her participation in arguably the worst sellout in the history of writers’ rights, and an egregious abuse of the class-action system to boot. “Attorneys have an obligation under the canons of ethics to avoid even an appearance of impropriety,” one outraged attorney-reader wrote to me. “This really stinks.”

Robert Labossiere questions “what, if any, precious confidential information there might be, especially on the plaintiff side, in this highly visible case.” Well, since Mr. Labossiere is so confident about transparency, I assume he will join the objectors and our attorney in seeking from the court release of the alleged expert report that helped drive the settlement figure of $10-to-$18-million. The plaintiffs have stonewalled our requests for release of this document. Previously the plaintiff associations had publicly estimated the case to be worth between $2.5 billion and $600 billion.

Mr. Labossiere also “kinda wishes” lawyers in the non-profit sector “well that they might actually at some point in their careers start to make a living.” He doesn’t pause to consider whether this was an appropriate point, or whether Kay Murray might have made a more ethical choice for a new employer.

“’On the take’ is inflammatory if not actually libelous”? Please. This was in reference to a corrupt deal between the American Society of Journalists and Authors, and defendant LexisNexis (see http://freelancerights.blogspot.com/2005/06/advocacy-alacarte-why-are.html). The truth happens to be a defense against a libel charge.

Ms. Phares, Ms. Friedman, Mr. Labossiere: The purpose of the Freelance Rights blog is to call attention to all these defects in the settlement and to do something about them before it’s too late. The purpose is not to polish anyone’s application for the Nobel Peace Prize.

+++++

To: "CNI-COPYRIGHT -- Copyright & Intellectual Property"
Date: Wed, 10 Aug 2005 17:50:30 -0400
From: "Phares, Gloria C. (x2686)"
Subject: [CNI-(C)] In response to Irvin Muchnick <http://us.f607.mail.yahoo.com/ym/Compose?To=irvmuch@yahoo.com&YY=15265&order=down&sort=date&pos=0&view=a&head=b>
Subject: FREELANCE RIGHTS: Authors Guild Lawyer Exits Via the Revolving Door

"I have confirmed that Kay Murray, general counsel of the Authors Guild and one of the key negotiators and spokespeople for the associational plaintiffs' role in the settlement, has left that job for a position in theNew York office of the Tribune Company.

"As in, owner of the Los Angeles Times, the Chicago Tribune, Newsday, eight other major daily newspapers, and numerous other media properties. Not to mention the Chicago Cubs, who stink again this year.

"What about all the info Guild members have confided in Kay Murray regarding the settlement? Is she bound by attorney-client privilege?

"First we have a mediator, Kenneth Feinberg, who says the settlement is hunky-dory and who just happens to be in line for a "mediation success fee." Then we have an associational plaintiff, the American Society of Journalists and Authors, that's on the take from defendant LexisNexis. Now we have the Authors Guild's settlement point person going on the payroll of the enemycamp even before the settlement is finalized."

Gloria Phares replies:

I am more than astonished by the tenor of these remarks. But since you've posted your views to the whole list, I'm responding to the whole list. I know nothing about the terms of the settlement and have no opinion about it. But I know Kay Murray professionally and personally. Not only is she a lovely person, but she is honorable and will certainly respect the attorney-client privilege. Authors and the Guild have been incredibly well served by her these past nine years, and you should be glad that this publisher will have a lawyer within its ranks who is so sensitive to authors' issues.

-- gcp

Gloria C. Phares
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, N.Y. 10036
(212) 336-2686
(212) 336-7978 (direct fax)
mailto:gcphares@pbwt.comwww.pbwt.comwww.pbwt.com

*****

To: "CNI-COPYRIGHT -- Copyright & Intellectual Property"
Date: Wed, 10 Aug 2005 18:10:00 -0400
From: "Jessica R. Friedman"
Subject: [CNI-(C)] Re:

I, too, know Kay Murray, and I second Gloria's response.

Jessica R. Friedman
Attorney at Law
757 Third Avenue
Suite 1903
New York, New York 10017
Phone: 212-220-0900
Fax: 212-973-9101
jrfriedman@litproplaw.com

For more information:
www.literarypropertylaw.com

*****

To: "CNI-COPYRIGHT -- Copyright & Intellectual Property"
Date: Wed, 10 Aug 2005 17:50:30 -0400
From: "Robert Labossiere"
Subject: [CNI-(C)] Re: FREELANCE RIGHTS: Authors Guild Lawyer Exits Via the Revolving Doo

ouch

you do nothing for the credibility of your cause with posts like this... lawyers are always bound by solicitor/client priviledge and it is debatablewhat, if any, precious confidential information there might be, especiallyon the plaintiff side, in this highly visible case

+ people move back and forth between the non-profit and for-profit sectorsall the time, indeed one kinda wishes them well that they might actually atsome point in their careers start to make a living ;)

+ and "on the take" is inflamatory if not actually libelous

Independent Objector Protests 'License by Default'

The court record shows that a new, independent objection was filed last week by writer Anita Bartholomew. Acting “pro se,” or without representation by an attorney, Bartholomew asked Judge Daniels to void the License by Default provision. She used a terrific analogy to illuminate this scenario -- so well put that I'm reproducing the entire text below. (Bartholomew apparently filed her objection last week and revised it this week; this is the revised version.)

Dear Judge Daniels:

I am a member of the class in this action. I object to the provision in the settlement agreement that involuntarily transfers future rights to the subject property of this litigation by default, from class members to the Defendants. I am amending my original objection to make as clear as possible my primary objection: That this provision damages class members by taking their property rights from them without their knowledge or consent. This, ironically, is the very type of damage that this class action was brought to remedy, i.e., past and current taking of property rights without class members’ knowledge or consent. The damage done by this provision is in many and possibly most instances greater than the damage caused by the infringements that this class action is intended to remedy.

Further, the attorneys representing the class have failed to notify class members that they will lose, by default, future property rights (which are not the subject of this class action), unless they act affirmatively to preserve those future rights. The failure to notify class members of this potential loss of property rights is equivalent to an action by the class members’ attorneys against class members’ interests. As such, it appears to be a breach of fiduciary duty owed to class members by the attorneys representing the class. The provision also may violate 17 U.S.C. § 201(e) and § 204(a).

I believe, but am not certain, that I have claims in Classes A, B and C. I learned of the class action through the American Society of Journalists and Authors (ASJA), of which I have been a member for approximately 11 years. I am also a former officer of ASJA. Absent information I received through my ASJA membership, it is unlikely that I would have learned of this class action or the proposed settlement, although I have written dozens of articles for a number of the publishers listed on the class action website. I did not receive a notice of any kind in the mail.

Class members who do not know that they are members of the class, or who do not know they have claims, will not file claims. It is almost impossible to determine with certainty if one has a claim by reading the information available on the website http://www.copyrightclassaction.com/. The settlement agreement itself is not available on the website. It is impossible to search the Defendants’ databases for evidence of both past and current infringement.

I have received email from, and read the online messages of, writers who, unable to find evidence of infringement due to the lack of such search capability, have stated that they do not intend to file claims. Perhaps the majority of class members do not know that the class action relates to their intellectual property. Moreover, they have no way of discovering that, in this class action, it is imperative to file claims even absent evidence. Those who are being entrusted with our representation have made no attempt to inform class members that, for any article on which a writer fails to file a claim, that writer risks involuntary transfer of future property rights.

The writings that are the subject of this class action are intellectual property but for the sake of demonstrating the effect of this settlement provision, let me substitute tangible property.

It would be as if each class member owned parcels of undeveloped real estate scattered around the world. The Defendants, who are squatters, entered onto perhaps tens of thousands of these pieces of property and used the property as if it were the squatters’ own, without the owners’ knowledge or consent, collecting rents from transients to whom they sublet.

On many parcels, the squatters have been there and gone. No evidence of their squatting remains. Where the squatters continue to secretly use the property, they are hidden. A physical inspection will not turn up the evidence of their presence. An inspection of the public records will not necessarily turn up evidence either; the records of their squatting are not public.

Yet, because of the settlement structure that the named Plaintiffs have agreed to in a class action, on each piece of property that now, or at any time since 1997, has and/or had been squatted upon, the owners of the property who do not file claims are in danger of having rights to use their property involuntarily transferred to these squatters forever. Nobody has warned them this is so.

The named Plaintiffs have agreed to accept, on behalf of all property owners in the class, not only rent for the squatters’ past use. They have granted by default, for eternity, use of all property of all class members that squatters ever squatted on at any time since 1997, unless an owner specifically demands that the squatters leave. (But remember, most owners have no way to determine the squatters are or were ever there.) This further damages the very people the class action was brought to compensate.

Intellectual property is not that different from real estate in that we writers own it and have the right to “rent it,” and to hold on to our rights unless we transfer those rights to others in writing. Most of us have no way to determine whether “squatters” are using our property. Those of us who received a notice that there is a class action were not fully informed of the effects the proposed settlement will have on our future property rights. Many of us were not informed that there is a class action. If this settlement is approved as is, most risk the default forfeiture of some or all of our property rights. Many, if not most, will lose rights without our knowledge, for no compensation.

I request that Your Honor disapprove this aspect of the settlement. I request that you send the parties back to the table to draft an agreement that settles past infringement only by default. If the negotiators want future rights, which are not a part of this suit, to be part of the agreement, each member of the class must retain the right to voluntarily transfer that property. There should be no forfeiture by default by Plaintiffs who may not even know they are Plaintiffs.

Please also see: 17 U.S.C § 204(a):

“A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”

I am a writer, not a lawyer, and I have no doubt that competent lawyers can argue a way around almost any law. But no one can credibly argue that the authors of the Federal Copyright law intended for copyright owners to forfeit their property rights without their knowledge or consent.

In the interests of fairness to all owners of intellectual property who do not know they are affected by this settlement, or have not been informed how it affects their ownership, I respectfully request that you strike the default transfer of future rights from the settlement agreement.

Thank you.

Respectfully submitted,

Anita Bartholomew
Objecting member of the class, acting Pro se

Authors Guild Lawyer Exits Via the Revolving Door

I have confirmed that Kay Murray, general counsel of the Authors Guild and one of the key negotiators and spokespeople for the associational plaintiffs' role in the settlement, has left that job for a position in the New York office of the Tribune Company.

As in, owner of the Los Angeles Times, the Chicago Tribune, Newsday, eight other major daily newspapers, and numerous other media properties. Not to mention the Chicago Cubs, who stink again this year.

What about all the info Guild members have confided in Kay Murray regarding the settlement? Is she bound by attorney-client privilege?

First we have a mediator, Kenneth Feinberg, who says the settlement is hunky-dory and who just happens to be in line for a "mediation success fee." Then we have an associational plaintiff, the American Society of Journalists and Authors, that's on the take from defendant LexisNexis. Now we have the Authors Guild's settlement point person going on the payroll of the enemy camp even before the settlement is finalized.

Weekly Standard Letter

The August 6 issue of The Weekly Standard has a letter from objectors' attorney Charles Chalmers, under the headine "Free, Freelancing." The letter, in response to Charlotte Allen's essay in the previous issue ridiculing the settlement, reviews the settlement's outrageous "License by Default" provision, which Chalmers calls the giving away of class members' property "by stealth."

The full text is accesible online to subscribers only. The Weekly Standard's teaser link, with much of the text of the Chalmers letter, is http://www.weeklystandard.com/Check.asp?idArticle=5924&r=ppolk.

Supplemental Notice Emailed

This morning my inbox includes an email from the settlement administrator with the notice for the amended UnSettlement 2.0. Or as they put it, “Supplemental Notice Of Class Action Settlement And Notice Of Rescheduled Fairness Hearing In Re Literary Works In Electronic Databases Copyright Litigation.”

Funny, though: The http://www.copyrightclassaction.com “official” site still hasn’t been fully updated. It still says, “THE FINAL FAIRNESS HEARING SCHEDULED FOR JULY 28, 2005 HAS BEEN POSTPONED. FURTHER DETAILS WILL BE PROVIDED SHORTLY.” It still has reopened the “Request Exclusion” form while at the same time failing to publish the supplemental notice or a fully accurate “Important Dates” page.

I’ve learned never to discount the possibility of garden-variety incompetence. But if the UnSettlement 2.0 team thinks it can get away without clearly chronicling why the July 28 “final approval” hearing was postponed and exactly where things stand at this point, I believe they are mistaken.

Feel free to comment on the blog, or directly to me at info@muchnick.net.

Hello, 'Official' Settlement Site ... Anyone Home?

Today marks one week since the federal district court in New York granted preliminary approval for the new-and-improved UnSettlement 2.0. As of moments ago, the amended settlement agreement and the supplemental notice still were not up at http://www.copyrightclassaction.com. And the site still incorrectly refers to September 27 the date for the hearing on preliminary, rather than, final approval of the settlement as amended.

'Official' Settlement Website Update Watch

1. Still says "THE FINAL FAIRNESS HEARING SCHEDULED FOR JULY 28, 2005 HAS BEEN POSTPONED. FURTHER DETAILS WILL BE PROVIDED SHORTLY."

2. If you click on "Request Exclusion," you now get an opt-out form, not a note that you've blown the deadline.

3. Under "Important Dates" they say:
• September 12, 2005 - Deadline to Opt-Out or Object
• September 27, 2005 - Hearing for Preliminary Approval for Settlement As Amended
• September 30, 2005 - Claims Deadline
But "Preliminary" seems to be a typo. I think they mean "Final Approval for Settlement As Amended." Or at least that's what they think.

‘License by Default’: The Killer Provision

I've had some harsh words for the associational plaintiffs -- the National Writers Union, the Authors Guild, and the American Society of Journalists and Authors -- but it's true that the blame really lies with the plaintiffs' lawyers. The associations are barred from doing anything to undermine the settlement agreement.

With that in mind, let's take a look at the big picture. There are many, many bad things about the settlement, but the killer is what the objectors’ attorney, Charles Chalmers, has dubbed “License by Default.”

If you’re a freelance writer whose works were originally published in a newspaper or magazine, and you didn’t explicitly waive your rights, you own the copyrights whether they’re registered or not. A copyright is property.

Most class members around the world will not file claims in this settlement. Those who do file claims have the choice to deny future use of their works by the defendant databases in return for a higher claim award. But the notice to the class does not reveal another very troubling provision of the settlement agreement. If you don’t file claims, you still must affirmatively deny future use of your works; otherwise the defendants have the rights in perpetuity. The settlement gives away class members’ property by stealth.

To our knowledge, this is an unprecedented abuse of the class action system. If it stands, it not only means that we’re selling our work on the cheap. It also means that thousands, or tens of thousands, of others will be giving away rights to their property without even knowing about it. The only way they could know would be to read dozens of pages of dense legalese. Even if they’re dead or sick or aged. Even if they don’t use computers. Even if they never opened their mail notice, or received it, or heard about it from someone else.

Is that right? A general uprising against the License by Default could be the key to getting the court’s attention before it’s too late.

Now: Were the NWU, AG, and ASJA fully apprised of this odious provision? Did they realize that acceding to it will mean “game over” for electronic rights for freelancers, now and maybe forever? I doubt it.

So I hope one of these organizations, which have done lots of good things for their members over the years, will speak up. Please just say, “We didn't know this was part of the deal.” Say that and we'll win.

Those of you interested in joining our list of objectors can contact me at info@muchnick.net.