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.