Monday, August 01, 2005

‘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


Post a Comment

<< Home