Friday, September 30, 2005

Gone Fishin’ (In Jiangxi Province, China)

Your humble blogger already has reported that Judge Daniels gave final approval to the copyright class action settlement at Tuesday’s hearing in New York.

Edward Hasbrouck, who exposed some of the lawyers’ misrepresentations in court filings, tells me that the Authors Guild -- one of the “associational plaintiff” “winners” -- has sent around a new missive apologizing for not having communicated well to the class about recent developments, and promising to do everything in its meager power to help writers get their claims on file by the deadline. Which is today.

As the objectors begin preparing our pleadings to the Second Circuit Court of Appeals, don’t forget also to send in (with a postmark no later than today) your denial-of-future-rights forms. We have downloadable samples at

And keep them cards and letters coming, as Dean Martin used to say. But don’t expect to hear much from this quarter for the next few weeks. That’s because I’m heading off to China on a mission more important than authors’ rights in the brave new digital world -- yea, even more important than my St. Louis Cardinals’ quest to win their first World Series in 23 years.

My wife and three kids will remain behind and, of course, will closely monitor the activities of the entities comprising the Defense Group, as well as their assorted parents, predecessors, subsidiaries, divisions, and affiliates, and all licensees thereof.

If, upon my return, I find that any of them have engaged in further monkey business, then I shall be forced to instruct the newest addition to our family -- Lia Fu Hao Schneider, born October 21, 2004 -- to pummel them severely about the head and shoulders.

Wednesday, September 28, 2005

Co-Objector Judith Trotsky's Report from Yesterday's Hearing

Approximately 20 lawyers were present in Federal Court yesterday, September 27, as Judge George Daniels heard Final Arguments for, and against, approval of the settlement between writers and publishers.

There were two known writers -- and two anonymous individuals who disappeared at the lunch break. I was one of the writers, the other was from the Authors Guild who, in various conversations, told me that many Guild members didn't understand the agreement, couldn't decipher the legal notices they received, and didn't see why they had to file.

Some, he said, had never heard of the lawsuit at all.

These are important points. They are considered in this report.


There were challenges from two writers, delivered through their lawyers: one, a Canadian, asked for an extension of the opt out date.

To which one of the Plaintiff attorneys insisted "the notice program was incredibly reasonable and satisfied all the requirements." Nevertheless, another Plaintiff attorney said, they did not oppose the extension. Saying "the legal notice was sufficient," Judge Daniels denied it.

A second challenge came from writer Mark Shields who is involved in a similar lawsuit in Washington, D.C. The legal issues are complicated. Those who wish more information can contact his attorney, James Wilcox, Jr., at


The conflicts over final approval began with motions forDiscovery from Objector's attorney Charles Chalmers who noted there had never been any. Among Chalmers's requests was information on the fees paid to mediator Kenneth Feinberg, and on what databases were involved.

Questioned by the Judge on what he thought discovery would disclose, Chalmers cited the lack of knowledge -- ultimately uncovered -- of HighBeam and Amazon violations. He also questioned Feinberg's "success fee." This was unusual. And if the fee was unusually high that might have some influence on Feinberg's decisions.

Daniel's response: all these questions were "theoretical." Chalmers noted that, throughout these proceedings, he felt as if he were "arguing against you." Daniels response: "I ask tough questions."

Ultimately denying the attorney's requests, the Judge called them a "fishing expedition," also noting that settlement proceedings were not a lawsuit where Discoverywas part of the action. "That's not the status of the case at this point." And "There is no evidence that the actions of the mediators (cq) were affected in a way" that was detrimental to the interests of the Plaintiffs.

hough arguments continued for some time, ultimately theJudge ruled that this was a "late stage at this point," and complying with Discovery requests would mean the Hearing would be further delayed. "Why," he asked, "are the objections so serious and widespread" they would "preclude anyone from recovery from the Settlement" or the ability to opt out?

Chalmers pointed out the difficulty most writers who have in launching their own lawsuits, and obtaining better terms. "Class actions, by their nature, are small claims."Given copyright laws, it's impossible to get "decent counsel" to represent the writer on "small potato claims."

Though the discussion went back and forth, again for sometime, the Judge insisted that the "potential benefit" for everyone was better obtained in the Settlement.

Other points -- return of the money to the publishers if there are not enough claims -- were similarly treated. Chalmers argued. The Judge posed "questions."

"Your Honor," said Plaintiff Attorney Michael Boni, you"have done a great job in making our arguments for us."

Having said that, this:

"Virtually everything was litigated ... There was Discovery. The Mediator almost had to make a motion to compel."

Chalmers questions were a "fishing expedition."

Motions for Discovery denied by the Judge.



At some point, Kenneth Feinberg entered the courtroom. Hugs all around from the attorneys. Feinberg hugged back.

No hugs for me. Putting my body between the Mediator and the Lawyers, I stuck out my hand and introduced myself.

I had a question.

Throughout mediation, members of ASJA and NWU were not informed of the proceedings. The excuse used: confidentiality. Did this also apply to the Defendants? Weren't they in contact with their own attorneys throughout?

Feinberg's eyes widened. As clients, we were entitled to that information.

At the start of the afternoon session, I asked for and received permission to speak. Conveying Feinberg's statement, I told the Judge that, in spite of repeated online questions from me during the mediation, the confidentiality rule was invoked by ASJA's representative. I had never received any information about what was happening. Certainly I would have objected to certain provisions.

I also noted the settlement is so complicated, many writers don't understand it; and that many -- including me -- are very much against it.

Plaintiff attorney Boni responded that the Settlement had "unanimous approval," that ASJA's representative got "thank you" emails, that he had conferred "with his council" at ASJA, and that there was no opposition to the Settlement.

The Judge made no comment. The proceeding went on.


Now the Objectors' attorney brought up the "license by default." People who don't put in a claim have "no idea"they're losing their exclusive rights, Chalmers argued. The Plaintiff attorneys say this is "just a release." That's a "frivolous argument," Chalmers said. Further, the right of one databaseto sublicense to others is not even mentioned.

In other words, writers have not been made aware of the seriousness of this provision. The spread of notice itself is insufficient. Out of approximately 45,000 notices mailed, 13,000 were returned by the Post Office as "undeliverable."

"Class counsel," he said, "sold out their clients from beginning to end. It was collusion."

Boni's response: it's a "release." It doesn't convey property ownership.


Finally, at 4:30 p.m., the Judge rendered his decision.

The Settlement is "not a product of collusion." He has examined the negotiation process as well as the terms of the Settlement. It is the "product of very aggressive and thorough examination and debate" between the parties. "The objections do not merit further delay or not granting final approval of the settlement..."

Dissatisfaction is "overwhelmingly outnumbered by those whobelieve it's a fair and adequate settlement that assures recovery for all class members involved." It also allows recovery for all claimants who wouldn't otherwise recover anything."

The process was complicated, extensive and hard-fought." There was the "highest quality of mediation services..."

There is no legitimate attack on the extent of notice..."

The objections were hypothetical, purely speculative or invalid and inconsistent with the record."

The class is certified.

The Settlement is approved.

Attorney fees are approved.

Each individual named plaintiff is awarded $2,000.

Tuesday, September 27, 2005

Across the Universe

From the sound of the first sketchy reports, the transcript of today's "fairness hearing" could make for some of the best fantasy reading this side of Harry Potter.

The settlement, lawyer Michael J. Boni told the court, met with "universal" approval.


Of, relating to, extending to, or affecting the entire world or all within the world; worldwide

Including, relating to, or affecting all members of the class or group under consideration


Judge Daniels today denied our motion for discovery and our objections, and approved the settlement.

He is wrong and we are confident the Second Circuit Court of Appeals will agree with us. More on this shortly.

In the meantime don't forget Friday's deadline for submission of claims and denial-of-future-rights paperwork.

Sunday, September 25, 2005

Objectors' Brief: 'If This Settlement Is Approved It Will Be Appealed'

This brief was filed on Friday by Charles D. Chalmers, attorney for the objectors.



These class members wish to present objections based on new information presented with plaintiffs’ Motion For Final Settlement Approval. This is particularly relevant to the damage information now presented by plaintiffs. This information was not available before now. The class members request that the court provide a date, possibly one week after the Fairness Hearing, by which new objections could be presented. The class members need adequate time to study the extensive papers.

The following are examples of objections the class members will, and do, make.

1. The damage analysis stops with data for 2001. Thus the settlement does not take into account the defendants’ royalties and revenues for 2002 to 2005.

2. There is no time value of money component included in the damage analysis. Copyright law allows recovery of interest.

3. There is no consideration of the right of a portion of the class to recover statutory damages in the damage analysis upon which the settlement is based.

4. There is no justification presented for the category amounts. While the presentation argues that there is no justification for amounts actually provided for the different Categories. So far as the final presentation shows, these amounts are arbitrary.

5. The damage study reveals that it is substantially, if not totally based on information volunteered by defendants, through their counsel. Some information, such as defendant revenues, is estimated by the expert when it should have been obtained by discovery.


The final presentation presents new reasons for discovery, as well as reinforcing the need for discovery already requested. Examples are stated below.

1. The Leitzinger damage studies rely heavily on estimates of the percent that freelance articles represent in the content provided to the databases. It is stated the estimate is based on information from 15 “content providers” but they are not identified. There is a suggestion that they may be major newspapers, or magazines. It is important to determine if their data is sufficiently representative of the 26,000 content providers (or more) that are covered by this settlement. It might be that large publications rely more on paid staff, while smaller publications, or those that do not publish as frequently as newspapers or magazines, rely more heavily on freelance writers.

2. The estimated percentage of freelance articles is based, in an unexplained way, on a “circulation weighted” calculation. The meaning is not clear. There is a suggestion that this would give greater weight to the freelance percentage of large circulation publications, which again might be more likely to rely on paid staff writers.

3. Figures called “Total Revenues” for the database defendants play a major part in the damage analysis, but they are undefined. It is not clear that they include all the revenues that should be included. For instance, while they presumably include database revenues from sale of articles individually, do they all include revenues for subscriptions to the databases, including subscriptions for a single price which include access to the freelance materials, or some of them, within the single price. Also, do they include revenues from licensing of the databases to other database operations, such as the licenses to FindArticles, Highbeam and Amazon which have been disclosed in this action?

4. Plaintiffs argue that the objectors fail to show any evidence that any B claims are prejudiced by the exclusive “step-up” provided to some B claims by the amendment. The information necessary to show which Bs are actually prejudiced is in the possession of the defendants, and possibly the plaintiffs based on their investigation. The information consists of the dates when databases, or publishers, conveyed their articles to a second or subsequent database, just as happened with the HighBeam and Amazon situations. Thus plaintiffs’ argument shows that the objectors should be given discovery to find this information, or to eliminate the possibility of prejudice.

5. The plaintiffs submit the declaration of Mr. Feinberg to describe the terms of his engagement. This underscores the need for discovery to see what the agreement is. His testimony about the terms is not the best evidence. If there is nothing prejudicial about the agreement there is simply no reason for it to be withheld.

6. The final presentation indicates that the information from the defendants upon which the negotiations were based is a limited body of documents. Leitzinger references a series of letters from defense counsel. This information should be made available under a protective order to counsel for the objectors, and he should be given an opportunity to direct questions to the expert.

7. Plaintiffs argue the length of the mediation, four years, eliminates the likelihood of collusion which would exist if the settlement was agreed early, and elsewhere they have explained that the settlement was agreed in early 2003. They can not have it both ways, and this underscores the need for the discovery of the negotiations that has been requested.

8. Defendants have submitted one of their mediation briefs. This virtually proves the value of production of all mediation briefs, which these class members have requested.


If this settlement is approved it will be appealed. These class members believe they could assist the court in understanding a number of important issues on which the plaintiffs have now, for the first time, stated their view of the law. These include most significantly the License by Default, the copyright law on damages, and adequacy of representation. An opportunity to respond to the plaintiffs’ motion is requested. It violates civil procedure to have a motion to which no response is permitted and which is heard 8 days after the motion is filed.

Dated: September 23, 2005

Charles D. Chalmers

Attorney for Irvin Muchnick, Charles Schwartz, Abraham Zaleznik, Jack Sands, Todd Pitock, Judith Stacey, Judith Trotsky, Christopher Goodrich and Kathy Glicken

The Beleaguered Michael J. Boni, Esq., And His ‘Class’ Counsel Teammates Are Hearing it From the Crowd

Many class members picked up The Newspaper Of Record this morning and read all about Hurricane Rita, surging gasoline prices, the war in Iraq, and updates on the baseball pennant races and college and pro football.

Before turning to The Blog Of Record, some of them may have paused to contemplate that The Newspaper Of Record and other publishers could be on the cusp of controlling just about everything that freelancers have ever contributed to them, lock, stock, and barrel, for as little as $5 (non-registered copyright) or $1,500 (registered copyright) per work, up to a cap of $18 million, including attorneys’ fees and settlement administration costs.

Then they read Edward Hasbrouck’s blistering letter to Michael J. Boni and other class counsel, published on his “Practical Nomad” blog and linked from this one. See “EDWARD HASBROUCK: LIES FROM ‘MY’ LAWYERS,” Hasbrouck is one of those writers who actually uses language to illuminate rather than obfuscate.

Now others are writing directly to “class” counsel on the eve of the their “fairness” hearing before Judge Daniels. They’re just the slightest bit ticked off.

They note -- in addition to the material lies in settlement papers that enumerated by Hasbrouck -- the following from him:

Since copyright was presumably registered in the authors' names for most of the 120,000+ books infringed by through "Search Inside the Book", the addition of converts many authors (like me) who either weren't members of the class at all, or had only Category C claims, into Category A claimants. If included, authors of books infringed by through "Search Inside the Book" are the largest category of potential Category A claims, more than sufficient to exhaust the settlement fund.

They’re pointing out that all this became clear to many class members only as a result of a message sent around by the Authors Registry (a rights-clearing agency run by the Authors Guild) just days before the “fairness” hearing and a week before the claims deadline. And they’re coming to a lot of other unkind conclusions about the collusion of their so-called class representatives.

For any of the rest of you who want to weigh in, here’s the contact info:

Michael J. Boni
Kohn, Swift & Graf

A.J. De Bartolomeo
Girard Gibbs & De Bartolomeo

Diane Rice
Hosie McArthur

Paul Aiken
Executive Director
Authors Guild

Kay Murray
General Counsel
Authors Guild
(oh, never mind that one -- she now works for the Tribune Company)

Jim Morrison
American Society of Journalists and Authors

Gerard Colby
National Writers Union

If you please, you can copy me at

Authors Guild Rationalizes: Infringement Is A-OK So Long As We Licensed a Class-Action Giveaway

The Authors Guild -- which really should rename itself the Whirling Dervish Guild -- has issued "Talking Points for Authors" on the Google suit. See

See especially the fifth and final point:

5. Authors (and the Guild) aren't opposed to making their works searchable online with a proper license. With a proper license, in fact, far more than "snippets" could be made available to users. The opportunities are boundless, but it all starts with a valid license. This is no big deal, really; businesses large and small sign license agreements every day.

In other words, it's OK for to use search-inside-the-book technology, because we, as inappropriate and inadequate class representatives, gave away everyone's rights to Amazon via a License By Default and an on-the-fly amendment to a bad proposed settlement -- and without even augmenting a total settlement fund that amounts to less than taxicab money for he multibillion-dollar international English-language publishing industry.

"You'll hear more from us soon," the Guild concludes cheerfully.

Threat or promise?

Saturday, September 24, 2005

Another Edward Hasbrouck Exclusive

The previous post points you to opt-outer/travel author Edward Hasbrouck's letter to counsel asserting that they made materially, and knowingly, false statements in their settlement approval papers.

Some of the background can be found in the main body of the post:

Lies from "my" lawyers in copyright class action lawsuit

Here Hasbrouck has the full scoop on The New York Times' new subscription fee service for online access to Times article archives. That service is now up and running on the virtual eve of the copyright class action fairness hearing. In May these plans were first reported in the trade magazine Information Today; see our post "New York Times to Information Consumers: Pay For It!,"


On his "Practical Nomad" blog, Edward Hasbrouck has posted the full text of his email today to plaintiffs' counsel Michael Boni, A.J. De Bartolomeo, and Diane Rice. The message, with the subject line "False statements in your memo," begins:

It has come to my attention that your "Memorandum of Law in Support of Plaintiffs' Motion for Final Settlement Approval" in "In Re Literary Works In Electronic Databases Copyright Litigation", contains materially false statements of material facts, which you knew to be false when you filed that memo.

Read on at:

And 'Class' Counsel Spencer Hosie Agreed With Me About Willfulness

See "'Class' Counsel's Two Strongest Arguments: 'Ad' And 'Hominem',"

RE: Willfulness

In paragraph 38 of her declaration in support of the motion for final approval, lawyer A.J. De Bartolomeo tells the court, “Plaintiffs have obtained no … evidence of willful infringement.”

My declaration in support of objections to the settlement blows this statement out of the water in paragraphs 4 through 10 and Exhibits E, F, and H. In paragraph 9 I assert that the evidence I am presenting “raises serious questions with respect to willfulness.” Paragraph 10 states, “The correspondence in Exhibit E also exposes a number of false and/or misleading statements by Thomson,” and concludes, “The persistent and non-trivial nature of these false and misleading statements contributes to the pattern of willful action by the database defendants to continue their infringement unabated.” I discussed these documents in depth in the four-part blog series beginning June 18, “The Crimes of Thomson/Gale/Information Access Company.” The introduction to that series can be viewed at

‘Class’ Counsel’s Two Strongest Arguments: ‘Ad’ And ‘Hominem’

The lawyers for the purported class representatives of the proposed settlement go to the trouble of telling the court in their “final” papers that the objectors’ attorney, Charles Chalmers, has the website address This is the second time they’ve made this powerful point. Months ago former ASJA president Jim Morrison was whispering on the “private” ASJA online forum -- under threat of expulsion if anyone took his words outside -- the slur that Chalmers is a “professional objector.” I’ve worked with Chalmers for the last six months and I’ve never seen an attorney with stricter ethical standards. Those who would suggest otherwise, and must resort to innuendo in order to do so, are all very funny, in a pathetic way.

Meanwhile these “class” lawyers also told the court (at page 36 of the brief in support of the plaintiffs’ motion for for final settlement approval) that your humble blogger, who was a consultant to co-lead counsel Hosie Frost Large & McArthur from March 2000 through February 2001, “chose to do nothing but lie in wait” over the ensuing four years. This is a virtual word-for-word repeat of language first offered in their earlier memorandum in opposition to our motion to compel (“chose instead to lie in wait,” p. 3, footnote 3).

I responded by filing with the court a partial record of my extensive email exchanges with Spencer Hosie from June 25, 2001, through January 25, 2005. Blog readers who are interested in this piece of trivia can email me ( and I will send them my declaration in support of objections to the settlement, along with Exhibit NN thereto, which is referenced at paragraph 37, pp. 18-19.

· On June 25, 2001, after I informed him of the Supreme Court ruling in Tasini v. New York Times, Hosie wrote to me, “Good news; we are good to go.”

· On June 27, 2001, I wrote to Hosie that I expected “to be an interested spectator as more of this unfolds.”

· On June 29, 2001, Hosie wrote back, “Thanks. A very fine [Tasini] opinion, and the court cited the Posner amices brief. We are off and running."

· On January 11, 2002, Hosie wrote to me, “And, peculiar as it may seem, this case is about as straightforward as they come.”

· On May 9, 2002, Hosie wrote to me, “The settlement mediation is going no where, and we will have to try the case, which is my preference in any event."

· I wrote back the same day, “I’m sure you.ll be advocating my view that the clock on willfulness should start ticking not with the Supreme Court decision last June but with the many 'constructive notice' letters sent years ago by authors and authors’ organizations."

· Hosie wrote back 10 minutes later, “I do agree on willfulness. Our challenge will lie in crafting a prospective remedy that we can impose through the suit. No more all rights contracts.”

On January 25, 2005, I wrote to Hosie: “Hi, hope all's well with you and yours. Once a year, along with checking the groundhog’s shadow, I inquire as to whether there's news in the consolidated class action mediation. The word on the cyberstreet is that a settlement is imminent. Then again, that's been the word for years. Candidly, I’m troubled by the fact that it’s obvious the defendants have been using the passage of time to launch new infringing products and partnerships that effectively become 'facts on the ground.' This is the same dynamic that persisted with the Tasini case before it reached the Supreme Court, with The New York Times and other publishers using a standstill in litigation to coerce rather than negotiate prospective solutions in the form of all-rights contracts. If you’re at liberty to offer any information or insights at this point, I’d appreciate it.”

I received no response of any kind.

Paula 'Pinocchio' McDonald

Named plaintiff Paula McDonald filed an untrue declaration -- in my opinion a perjuriously false one -- in support of the motion for final settlement approval. I did a post about this a few days ago ("Then There's Named Plaintiff Paula McDonald's Slight ... Problem With the Truth," For those of you who don’t want to go back and forth, I again am reproducing our August 22-23 email exchange at the bottom of this post.

I intended to amplify on this in a declaration of my own accompanying objectors attorney’s Charles Chalmers’ rushed written response prior to next Tuesday’s hearing in New York. I forgot. There were too many other substantive, fundamental issues to focus Judge Daniels’ attention on. These include-but-are-not-limited-to: the License By Default; the mysterious four-year gap in damages analysis; the improper notice; the inadequate, indeed collusive on its face, representation of the class by the named plaintiffs, the authors’ associations, and their counsel; etc., etc.

But telling “the rest of the story” is what blogs are all about.

· In paragraph 3 of her declaration Paula McDonald calls me “an individual I had never heard of, or from.” It’s unclear how this statement (whose second part, at least, is true as far as I know) squares with paragraph 4, which states that this first email ever sent to her by me constituted “harassing of this Class Representative.”

· And as I noted in the earlier post, McDonald proceeds to state (in paragraph 5) that “I hit ‘reply all’ to Mr. Muchnick’s email, thinking that I was sending my query to all the other named plaintiffs.” It’s quite obvious that my August 22 email to McDonald was sent just to her, not to a list, and that her email to me on August 23 was not a “reply all.”


Date: Mon, 22 Aug 2005 17:22:02 -0700 (PDT)
From: "Irvin Muchnick"
Subject: FREELANCE RIGHTS: Open Letter to Plaintiff E.L. Doctorow -- 'Please Stop This Terrible Settlement'
To: "Paula McDonald"

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

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


From: "Paula McDonald"
To:,,,,,,,,,,, "Gary Fergus" , "Irvin Muchnick" , "Jonathan Tasini" , "Diane Rice"
Subject: Amazon and Highbeam confusion
Date: Tue, 23 Aug 2005 14:56:58 -0700

Fellow plaintiffs, attorneys, Jonathan:

Miriam Raftery and I are very confused regarding the Amazon/Highbeam amendment and if or how it affects us. To our knowledge, there has been no information to date, aside from the announcement of the amendment and the wording of the amendment itself, that details which defendants are involved, exactly which plaintiffs are involved, what works have been further infringed, how to find out, and how to file a further claim, if that's necessary. Both of us have spent hours searching Amazon, A9 (Amazon's new information system) and Highbeam with no results other than our published books showing up on Amazon. But A9 has hundreds of web sites under its umbrella so it's almost impossible to search it effectively at this time.

In Irvin Muchnick's open letter to E.L. Doctorow yesterday, he states that "With the recent amendment to the settlement, a good portion of the B’s will convert to A’s."

If that's true, nobody has told us---or the other members of the class---how to pursue specific information regarding this new wrinkle in the case, how to find out if any of our works are moving up a class and what actions we need to take if this is the situation.Does anyone know what's going on here? The deadline for filing claims is fast approaching and if many class members have to search themselves out and file a new set of claims, we need to know that now.


Paula McDonald

AUTHORS GUILD ALERT! Protect Your Books (But ... Shhhh ... Don't Tell Anyone Else)

If you're a shlub like me -- a mid-level journalist still trying to figure out if he can sell his first book some time before he has his fifth child -- then you should already know that you have an important stake in Tuesday's "fairness hearing" on approval of the UnSettlement.

But if you're a member of the Authors Guild ("For 90 years the Guild has been the authoritative voice of American writers ..." Scott Turow), as of yesterday you knew a good deal more.

That's because the Guild, a so-called associational plaintiff, issued a members-only memo telling book authors that they need to file claims if their books were excerpted. (The claims deadline is next Friday, September 30.)

So there's panic in AG land, whose general counsel was until recently Kay Murray (a "leader" of the settlement negotiations according to mediator Kenneth Feinberg), now a private-first-class counsel for the Tribune Company. All authors -- excuse me, all Authors -- who got the memo are scurrying about trying to figure out what they should file for. Their books? Their excerpts? (Not to worry: ASJA has assured one and all that the exercise takes "seconds.")

This week the Authors Guild filed a heavily hyped copyright lawsuit against Google. But the Authors Guild and the other class reps of the UnSettlement are trying to push through a hastily crafted amendment that releases Amazon, which like Google has search-inside-the-book technology.

One other thing. I almost forgot. If you didn't opt out by the September 12 deadline and you don't affirmatively deny future rights to the infringers by next Friday, then these upstanding citizens of cyberspace own your works forever. Someone has called that the License by Default. The Authors Guild has sued Google because Licenses by Default are very, very bad and threaten the very foundation of Western civilization.

Friday, September 23, 2005

Rose Mary’s Baby: Post-2001 Damages Data Missing From Settlement Analysis

The UnSettlement approval papers filed this week reveal an outrage right up there with the License By Default.

It’s this: The analysis of damages stops with data for 2001. The proposed settlement doesn’t take into account the defendants’ royalties and revenues from 2002 to 2005.

Poof. Gone. Ignored.

The parties can’t argue -- certainly not with any logic -- that 2002-05 damages are covered by the 35% of the claim awards dedicated to future rights. Someone who denies future use is being paid only for infringements through ’01.

Those of us who were adults in 1974 (not so terribly long before the birth of the electronic article database industry) will recall the infamous “18½-minute gap” in the secret White House recording that implicated President Nixon in the Watergate scandal. Five minutes of that gap were said to have been caused by an “inadvertent” erasure of a portion of the audiotape by Nixon’s personal secretary, Rose Mary Woods.

Now, from the people who brought you bullying all-rights contracts after it was clear that copyright law wasn’t on their side -- and who didn’t disclose to information consumers the ongoing piecemeal blockage of content that had been illegally marketed to them -- comes the “four-year damages gap.” Even worse, it was enabled by the writers' organizations, named plaintiffs, and lawyers who were supposed to be on our side.

No wonder the parties were so desperate to submit their documents to the court after class members had to decide whether they wanted to object or opt out. Some experienced legal observers say they’ve never seen anything more blatant.

Judith Trotsky: 'This Is the Kind of Truth Mismatch Journalists Are Trained to Catch'

From co-objector Judith Trotsky:

The new issue of the NWU’s American Writer contains "confidential" information which ASJA members were denied:

In an article by Miryam Ehrlich Williamson, we read that “at the initial face-to-face meeting of the plaintiffs and defendants, [former NWU president Jonathan] Tasini said plaintiffs were looking for $60 million. The defendants seemed shocked. [Former ASJA president Jim] Morrison said, 'They literally walked away from the table and said, "See you in court."'"

(Do note: years of out-of-court negotiation followed.)

Then: "Going to trial would have been a gamble for both sides. From the publishers’ point of view, the law must have seemed clear regarding the unauthorized sale of published work. The defendants (cq) ... had to wonder if they could recruit enough writers with the courage to stand up to the publishing industry and form a class big enough to justify the suit."

Aside from the nomenclature mixup above, we've been told that the agreement to the $18 million figure was so that even unregistered writers would get something....

I also note with some interest that, though ASJA seems to insist the organization may not legally be allowed to ay anything officially negative about the settlement, NWU, in its publication, appears not to be similarly bound.

This is the kind of truth mismatch journalists are trained to catch.

Thursday, September 22, 2005

'A Great Example of Disingenuity And Fudging'

ASJA has posted the class representatives' lawyers' brief in support of the proposed settlement as a link at, and the negative reviews continue to pour in.


I would encourage anyone who is interested to read the ASJA brief supporting the settlement as a great example of disingenuity and fudging.

One highlight among many is in section B under mediation. The first part lists the information that the plaintiffs asked for. It then says, "All information that was available was provided," which suggests that all the information the plaintiffs asked for was provided. In fact, the lawyers who represented us, one of whom has since accepted a job working for the other side, accepted at face value the claim by d-base companies that they did not have most of the requested information. Therefore, in a staggering omission that would seem to call into question the attorneys' very competence, no discovery was ever done. Almost none of the requested information was provided....

There are other nuggets, such as the claim that this suit is supported by a "vast majority of the class." The vast majority of the class has no friggin' clue that any of this is going on, despite the lawyers' assertion that it has been widely publicized ... in "7 magazines." No joke. Seven. It's also been in newspapers. As the number of writers making claims will attest, the vast majority neither support nor oppose: they don't even know the game's on. As for the rest, the lawyers, whose goal for a long time has been to protect their interests (i.e. their fee, not us) characterize the opposition as limited to the 12 who took the considerable trouble to actually file and voice their opposition.

In other words, in their view silence is assent, just as the failure to file a claim by September 30 is, they say, affirmation that writers want or agree to give up all future rights by default. It's galling. But don't take my word for it. Read it yourself.

Why Did the Authors Guild Sue Google But Not Amazon? One Guess.

The “almost farcical” July 28 settlement amendment (objectors attorney Charles Chalmers’ phrase) explicitly added and to the list of released infringers. The settlement fund was not increased because -- shocker! -- the defendants couldn’t be bothered to do that for class representatives who had already rolled over for them. The only change, converting certain “B” claims to “A,” merely worked to the prejudicial disadvantage of other “B” claimants who didn’t happen to have been ripped off by Amazon or HighBeam but were ripped off by others.

But with the emerging evidence of Amazon’s new “Search Inside the Book” capability, what’s coming into focus is a larger narrative: the publisher-defendants in the writers’ class action settlement seized a huge and classic opportunity to turn lemons into lemonade. I’m not one who theorizes that grinding freelancers’ noses in the manure was what primarily motivated them; big businessmen hunt bigger game than can be found on the middle school student council.The real agenda, most likely, was for the publishers to exploit the pathetic weakness of the class representatives and their lawyers to get themselves fully set up and armed for the nascent World According to Google and Amazon.

Again, UnSettlement opt-outer and travel writer Edward Hasbrouck:

Do you understand why the Authors Guild is suing Google, but not including's "Search Inside the Book"? And why file this week, just before the settlement hearing? The only reason I can think of not to include would be that the Authors Guild thinks they are released, and further claims against them for "Search inside the Book" infringement are foreclosed, by the settlement.

You've mentioned in your blog that the additional "licensees" may convert many category C claims to Category B, but it's much more than that: Since copyright was presumably registered in the authors' names for most of the 120,000+ books infringed by through "Search Inside the Book", the addition of converts many authors (like me) who either weren't members of the class at all, or had only Category C claims, into Category A claimants. If included, authors of books infringed by through "Search Inside the Book" are the largest category of potential Category A claims, more than sufficient to exhaust the settlement fund.

Opt-Outer Hasbrouck: Class Reps' Claim That There Were No Negative Comments Is Nonsense

UnSettlement opt-outer -- and prominent travel author -- Edward Hasbrouck (see our earlier post at has a pointed rejoinder to the assertion in the settlement approval papers that the class representatives heard nary a discouraging word:

Class counsel did hear negative words from me, as a visitor to the "" Web site. And from our correspondence with them, I know that they knew that attempts to communicate through the Web site were either prohibited, not received, or not replied to.

Authors Guild's Paul Aiken Opposes 'Turning Copyright Law Upside Down' -- Except When the Guild Is Helping Publishers Impose a 'License By Default'

Readers of both The Newspaper Of Record and The Blog Of Record point out the breach of fiduciary duty -- not to mention breathtaking intellectual dishonesty -- exposed by this statement by Authors Guild executive director Paul Aiken in yesterday's New York Times coverage of the Guild's copyright infringement lawsuit against Google:

Google temporarily suspended its library project last month to give authors and other copyright holders until November to opt out by telling it that they did not want certain works to be copied.

But Mr. Aiken said that offer turned longstanding precedents in copyright law upside down, requiring owners to pre-emptively protect rights rather than requiring a user to gain approval for use of a copyrighted work.

Of course, this observation by Aiken -- which is dead right -- merely parrots the line of Association of American Publishers lobbyist Pat Schroeder.

Also, of course, it belies precisely what Aiken's organization, an "associational plaintiff," is trying to do to authors via the UnSettlement's untenable "License By Default."

Wednesday, September 21, 2005

Co-Objector Todd Pitock Wins Lowell Thomas Award for Travel Journalism

Co-objector Todd Pitock has been awarded a gold prize in the new round of annual Lowell Thomas Awards announced by the Society of American Travel Writers Foundation. Todd won in the category Magazine Article on Foreign Travel for his piece "Family Bonds in South Africa," published in Endless Vacation magazine.

The judges noted: "Too few travel stories include family. Of those, too few get beyond clichés. Todd Pitock traveled with his wife, 10-year-old daughter, 7-year-old son and 4-year-old son to South Africa, then set out with them all on a safari. His chronicle of a family-friendly vacation that mostly succeeded combines service, adventure and anecdote seamlessly."

You can view the announcement at (see number 7). The class-action settlement objection project is proud to have Todd Pitock in our ranks.

Authors Guild & Google

As just about everyone probably knows, the Authors Guild has sued Google for systematic copyright infringement. Bully for the AG. They're right and this is an important issue. Let the negotiations for the brave new copyright world begin.

Unfortunately, the Guild hasn't finished spearheading its criminally flawed settlement of the freelancers' class action against databases and publishers. Before meaningful negotiations proceed over the avant-garde issues presented by the Google case, the UnSettlement must go down. If the Guild and their brethren authors' associations succeed in establishing a court-enforced principle that our rights can be given away forever by default, then the landscape of the future is as grim as it gets.

Tuesday, September 20, 2005

Then There's Named Plaintiff Paula McDonald's Slight ... Problem With the Truth

On August 23 I received an email from named plaintiff Paula McDonald. We didn’t use it until my declaration of last week. First we wanted to make sure her lawyers wouldn’t claim that it was sent inadvertently. Later we told them that we intended to use it, but invited them first to make a claim that it was attorney-client privileged. They never responded.

Now McDonald, under penalty of perjury in a declaration in support of the approval papers, makes the strikingly and willfully false assertion that her email got to me because of an accidental “reply to all” in response to my email to her the previous day.

Below are the texts of the August 22-23 emails. The one from me to McDonald -- the first I had ever sent her -- was to McDonald alone. It was not to a list. The one from McDonald to me could not possibly have been a spontaneous “reply to all.”


Date: Mon, 22 Aug 2005 17:22:02 -0700 (PDT)
From: "Irvin Muchnick"
Subject: FREELANCE RIGHTS: Open Letter to Plaintiff E.L. Doctorow -- 'Please Stop This Terrible Settlement'
To: "Paula McDonald"

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

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


From: "Paula McDonald"
To:,,,,,,,,,,, "Gary Fergus" , "Irvin Muchnick" , "Jonathan Tasini" , "Diane Rice"
Subject: Amazon and Highbeam confusion
Date: Tue, 23 Aug 2005 14:56:58 -0700

Fellow plaintiffs, attorneys, Jonathan:

Miriam Raftery and I are very confused regarding the Amazon/Highbeam amendment and if or how it affects us. To our knowledge, there has been no information to date, aside from the announcement of the amendment and the wording of the amendment itself, that details which defendants are involved, exactly which plaintiffs are involved, what works have been further infringed, how to find out, and how to file a further claim, if that's necessary. Both of us have spent hours searching Amazon, A9 (Amazon's new information system) and Highbeam with no results other than our published books showing up on Amazon. But A9 has hundreds of web sites under its umbrella so it's almost impossible to search it effectively at this time.

In Irvin Muchnick's open letter to E.L. Doctorow yesterday, he states that "With the recent amendment to the settlement, a good portion of the B’s will convert to A’s."

If that's true, nobody has told us---or the other members of the class---how to pursue specific information regarding this new wrinkle in the case, how to find out if any of our works are moving up a class and what actions we need to take if this is the situation.

Does anyone know what's going on here? The deadline for filing claims is fast approaching and if many class members have to search themselves out and file a new set of claims, we need to know that now.


Paula McDonald

Lawyers' 'Final' Presentation: The Settlement Is Good, Because We Say So

The lawyers who stand to collect $4.4 million for their work on a proposed $10-million-to-$18-million settlement have filed their “final” papers with the judge in preparation for next week’s approval hearing. It’s a case that their clients publicly touted as being worth “anywhere from $2.5 billion to $600 billion,” and it seems safe to conclude that it’s truly worth somewhere between $18 million and $2.5 billion. As for the License by Default provision that gives away all our future rights forever to the very entities that have been ripping us off for decades … well, that’s just another day at the class-action office.

* More than 400 class members have opted out. Among them are several big names, including my fellow Bay Area resident Terry McMillan, the bestselling author of Waiting to Exhale, How Stella Got Her Groove Back, and other novels. Curiously, the opt-out list also includes at least one publisher. And not just any publisher but the publisher of McMillan and many others: Viking Penguin, the world’s second-largest English-language trade book publisher.

* In a rare moment of clarity, the lawyers say the settlement’s “level of complexity is staggering.”

* Lawyer A.J. De Bartolomeo produces several declarations from various absent class members who say the settlement is peachy. One is from a writer who is working his way through college and has a dying mother. Another’s wife and daughter both have degenerative diseases.

* De Bartolomeo submits her partner Dan Girard’s published letter in The Weekly Standard responding to writer Charlotte Allen’s criticism of the settlement. De Bartolomeo ignores objectors attorney Charles Chalmers’ simultaneously published Weekly Standard letter about the License by Default.

* Authors Guild executive director Paul Aiken says that “not one” member ”expressed any reservations” about the settlement. (Paul, I’ve got to have you over for brunch with my co-objector Chris Goodrich.)

* Nor was a negative word to be heard from any of the “thousands” of visitors to a joint informational website maintained by the associational plaintiffs. (Any reader of this blog knows that that website, a laughingstock, was effectively abandoned within weeks of its launch.)

* Lawyer Michael Boni reiterates that notice of the July settlement amendment was posted “on the website” on August 11. Which website? He ignores the fact that, in violation of the court’s order, the supplemental notice was not posted prominently at the ASJA and NWU websites. Until August 24 the supplemental notice was not mentioned at all at the latter.

* In an earlier brief objectors’ attorney Chalmers had made the simple statement, “Class action settlements are disapproved.” Class rep consultant Samuel Issacharoff characterizes this as “a rather extraordinary claim.”

Monday, September 19, 2005


A week from tomorrow, September 27, is the date of the “final” fairness hearing before Judge George B. Daniels in New York. In the next couple of days the settlement parties will be filing their “final” papers in advance of that hearing -- a convenient full week after the September 12 deadline for objecting or opting out.

We’ll comment on these documents as soon as they’re available. And, of course, we’ll be reporting on what happens next week in the courtroom, when the judge hears from the parties, objectors’ attorney Charles Chalmers, and perhaps others.

Meanwhile, all freelancers the world over should make sure they file their necessary paperwork with the settlement administrator by a week from Friday, September 30. That means, first of all, your claim forms -- if you didn’t opt out and if you think they're worth the trouble.

Many class members who have only “Category C” claims -- meaning their copyrights were not registered with the U.S. Copyright Office in a timely fashion -- tell me that they’ve come to the conclusion that this exercise is not worth the trouble. Writer Marshall Whitfield puts it well: “I believe in ‘half a loaf,’ but I'm insulted by the idea of accepting crumbs, which is what I believe I'd get for my (unregistered) articles, in exchange for endless hours of filling in the claim forms.”

For those of us filing claims, co-objector Chris Goodrich is generously sharing an Excel spreadsheet template that he prepared after consulting with staffers at the Authors Guild, of which he’s a member. (It’s a mystery why the Authors Guild and the other associational plaintiffs and the settlement administrator didn’t publish such a resource themselves, instead of just suggesting the use of an Excel spreadsheet. But, then, as we've said many times, as class reps the associations have been as funny as windows in submarines.)

The Goodrich spreadsheet template is a good tool for those of us with many claims, but I advise you to use it even if you have just a few. You can download it at this link:

(You don't have to submit the spreadsheet online -- you can print out a hard copy and submit it by mail with a cover note.)

Now ... Even if you opted out, or even if, like Marshall Whitfield, you didn’t opt out but you’re not filing claims, it’s important to submit denial-of-future-rights forms ordering the defendants to take your works down from the database. This is because the settlement includes an absurdly one-sided future “License by Default” provision, which applies to all Subject Works regardless of their claim status -- indeed, regardless of whether the authors of those works even know that their works were ever infringed in the first place or that a settlement of this dispute was ever proposed. The License by Default is the No. 1 of our many objections to the settlement, but we’re still reminding writers to send in takedown forms to protect their rights, in the unhappy event that we don’t prevail. See “Use Our ‘Takedown Forms’ to Block Future Use of Your Works,” We also now have a downloadable Word file of these forms at:

Note that there are two forms. “DENIAL OF RIGHTS” should be used if you opted out, or are choosing not to file claims even though you did not opt out. “DENIAL OF CERTAIN FUTURE RIGHTS” should be used if you are filing claims.

Thursday, September 15, 2005

Statement by Independent Objector Anita Bartholomew

As many people know, while I'm not part of Irv Muchnick's group of objectors, I am an objector. As you may not know, I agree with most of what has been posted here. Although I am sometimes distressed by the angry tone, I cannot argue with most of the content.

In my own independent filings with the court, which were reported on this blog, I told the court that I believe the proposed settlement betrays writers by giving away their future rights by default -- and by stealth. This settlement, in my opinion, is worse than no settlement at all for the vast majority of our colleagues. Most writers have neither been told about the Trojan Horse aspect of the settlement nor been given the information and tools they need to protect themselves from forfeiting their rights as a result of it.

I am also disturbed that, although the attorneys for the class helped ASJA negotiator, Jim Morrison, construct blanket language that defeats the default forfeiture provision, Morrison indicated that the attorneys refused to allow themselves to be associated with it outside our private ASJA forum. This is critically important information that every member of the class has a right to have. And every member of the class has a right to know that the attorneys participated in constructing the language (because, by participating, they have de facto made an admission that such language is necessary to protect class members' future rights). Those class members who are not given this information are at a significant disadvantage. That is simply not fair.

Unfortunately, the publication on Irv's website of the ASJA forum excerpts documenting the above has embarrassed some innocent bystanders who participate in the forum. I have asked Irv to remove this exhibit as a favor to me, and as a gesture of goodwill to those of us who support what he is doing, in whole or in part. Irv agreed, feeling the point has been not only made but proven. He also noted that the exhibit is in the court record for anyone who wants to view it there.

Oh Really?

Plaintiffs' co-lead counsel Gary Fergus has responded to the objectors' recent motion for discovery.

"To the extent Objectors are seeking discovery on settlement negotiations, they have failed to meet the threshold requirement of citing evidence indicating collusion or conflict of interest faced by plaintiffs' counsel." Emphasis in original.

This was filed just before we gave the court the evidence of class counsel's shenanigans with former ASJA president Jim Morrison. See previous posts.

Earlier we'd exposed the fact that Authors Guild staff general counsel Kay Murray -- still cited as the organization's contact in publicity for the settlement, and cited by mediator Kenneth Feinberg as one of the "leaders" of the settlement negotiations -- has jumped over to a position in the legal department of the Tribune Company, a participating publisher. Fergus' take: The "employment decision of a former lawyer for one of the Associational Plaintiffs" is one of the "fishing expeditions unrelated to cogent objections."

'Class' Counsel Exposed (Day 3); UnSettlement Held Hostage (Day 48)

Since we've adopted a new component of our mock-Koppel day count, let's explain the new algorithm and review the old one.

On Tuesday morning we filed with the court new evidence of collusion between the plaintiffs' counsel and American Society of Journalists and Authors honcho Jim Morrison to provide guidance -- available only to participants of an ASJA online forum and not to the whole class they purport to represent -- on how to work around the UnSettlement's rancid "License by Default" provision. See:


Documents Showing Class Counsel-ASJA Complicity

So it's Day 3 of that scandal.

Meanwhile, on July 28 Judge George B. Daniels ordered all three associational plaintiffs -- Authors Guild and National Writers Union, as well as ASJA -- to post prominently the notice of an amendment to the UnSettlement. The Guild has complied, the other two have not. So it's Day 48 of that run-of-the-mill clerical error, which already has prevented untold numbers of class members from being able to object or opt out by the September 12 deadline that just passed, and which promises to prevent an untold number from filing claims and/or submitting denial-of-future-rights paperwork to the settlement administrator by the September 30 deadline.

In the Orwellian world of the UnSettlement, there will be a September 27 fairness hearing on the parties' final presentation in support of the terms, which call for a maximum of $18 million, including the lawyers' fees, and the default waiving by all authors everywhere, forever and ever, of their future rights -- even though Section 201(c) of the Copyright Act and a 7-2 Supreme Court decision in 2001 clearly say otherwise.

Oh, and by the way: The settlement parties' final papers haven't been filed yet. But not to worry, they assure the freelance community. We're going to love them!

Wednesday, September 14, 2005

'Class' Counsel Exposed (Day 2); UnSettlement Held Hostage (Day 47)

Tuesday, September 13, 2005

Documents Showing Class Counsel-ASJA Complicity




Late last night objectors’ attorney Charles Chalmers -- hours after filing our package of objections, supporting declarations, and exhibits -- received new information that should blow this case wide open.

The information: Former American Society of Journalists and Authors president Jim Morrison -- associational plaintiff ASJA’s chief negotiator for the class action copyright settlement whose terms we dispute -- has been privately advising participants in a members-only online forum on how they can deny the defendants future rights to their works and navigate what the objectors have termed the License by Default.

If the documents we’ve acquired are authentic (and there’s simply no reason not to believe they are), then they confirm “the pattern of organizational plaintiffs acting to serve their own interests or those of their members only, instead of the class they purport to represent,” Chalmers told the court. Even worse, they show “class counsel to be complicit in this breach of duty to the class.”



Monday, September 12, 2005

UnSettlement Held Hostage ... Day 46

Sunday, September 11, 2005

UnSettlement Held Hostage ... Day 45

Saturday, September 10, 2005

Kremlinologist’s Report: NWU Still Hiding ‘License by Default’

So we finally landed a temp Kremlinologist to deconstruct the new-and-improved Tasini-Colby statement (see today’s earlier post).

In addition to correcting their error concerning the fees and other details of omnibus copyright registrations, the two NWU prezes (one “emeritus,” the other current) deleted the sentence from their August statement that followed these two:

"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 deleted sentence was:

“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 change -- removing a misstatement of the copyright statute of limitations -- makes this passage technically accurate. The UnSettlement “may,” indeed, be the “only chance you have to collect compensation.”

But there’s a rich irony in that construction. The reason the UnSettlement “may” be the “only” chance is the License by Default.

Which the National Writers Union continues to conceal.

The NWU, whose work, according to its website hype, “has become more crucial than ever” as “we march further into the new millennium”:

"With the consolidation of power into the hands of ever-larger corporate entities and with the advent of technologies that facilitate the exploitation of a writer's work, the individual writer has become increasingly disenfranchised. Now, more than ever, writers need an organization with the clout and know-how to protect our interests. One that will forge new rules for a new era, fight hard and take chances, one that goes to bat, goes to court, and goes to the streets, if need be, to protect writers' rights."

Tasini-Posner 'Important Message': We're Baaaack!

Former president Jonathan Tasini and current president Gerard Colby, the National Writers Union's answer to Abbott and Costello, are back with an edit of the Important Message they posted on August 24, then removed on August 30 after numerous observers, including yours truly, pointed out its numerous errors. (See "Earth to NWU: Do the Right Thing,"

It's only two days from the deadline to object or opt out! And it's a weekend!

Presumably Tasini and Colby simply cleaned up their errors. This took them only 11 days.

But, taking no chances, the Freelance Rights Blog will closely study the new sacred text to see if, for example, the NWU followed fellow associational plaintiff ASJA's lead and decided to admit that the UnSettlement includes that breakthrough in class-action chutzpah known as "license by default."

To help us interpret the newest verbiage, we sent out a desperate appeal to the Kremlinologists Temp Agency. However, most of the more qualified practitioners are currently tied up spending the "seconds" it takes to determine if they have UnSettlement claims. In an attempt to land one of them for this urgent mission, we've promised to acquire only First North American Serial Rights.

Back with a new post as soon as we know more.

UnSettlement Held Hostage ... Day 44

Friday, September 09, 2005

Resource Guide for Last Weekend Before Objection Deadline

"I'm aware of the shortcomings of this settlement agreement. I've voiced them to [plaintiffs' lead co-counsel] Boni et al. However, for reasons I'll not go into here, I'd prefer to see the agreement approved."


'This Is Worse Than Anyone Is Imagining'


'Why I'm Opting Out'


'13 Reasons Why I Oppose the Settlement'


(but still won't comply with the court order to post the supplemental notice prominently)



* conducting teleseminars for members on how to search for yourself

* still listing former general counsel Kay Murray -- who has jumped to the employ of participating publisher Tribune Company -- as its contact person



Missing in action

UnSettlement Held Hostage ... Day 43

Thursday, September 08, 2005

(N)ational (W)riters (U)ncommunicative

A reader points out, "The NWU leadership's utter ineptitude is another issue that hasn't even been addressed. The rank-and-file have had almost no information provided bythe leadership -- and let's recall that the NWU (3,000-plus) has three times as many members as ASJA (1,000-plus). The train's coming, the members are on the tracks, and no one is giving them any information other than the one inaccurate press release."

Tom Dunkel Is Mad As Hell And He's Not Going to Take it Any More

Named plaintiff Tom Dunkel’s nose is out of joint because our blog ran the complete text of his email exchange with me yesterday. In a new “private” message -- cc’d to ASJA’s Jim Morrison -- Dunkel calls me a “lowlife.” I shared the note with my wife and children. They said, “Tell us something new.”

Seriously, Dunkel should direct his outrage where it belongs. I don’t know the guy; never met him. I’m sure he doesn’t beat dogs or anything.

But this isn’t about my and his sterling characters. It’s about the fact that Dunkel and his fellow named plaintiffs, who are supposed to be representing a class, now know full well that they’re signing off on a bad, corrupt, fatally flawed settlement, which not only codifies the defendants’ decades-long piracy of writers’ rights, but also brazenly expands on that piracy by the novel and unconstitutional vehicle of a prospective “license by default,” and, to boot, shortchanges them to the tune of tens of millions, hundreds of millions, or possibly even billions of dollars.

Yesterday, on the virtual eve of the deadline for class members to object or opt out, Dunkel sends me an unsolicited email arguing that I should lay off on my criticism of the named plaintiffs because … because … because … why? Because “I’m aware” of the settlement’s unspecified shortcomings, but “for reasons I'll not go into here, I'd prefer to see the agreement approved.”

In one fell swoop, Dunkel has dumped into my lap confirmation of dissension within the named plaintiffs’ ranks, as well as a direct illustration of the self-serving arrogance by which they conceal vital information about the settlement. These guys apparently really believe that the dismissive assurance that they’d “prefer to see the agreement approved” is good enough.

Well, I “would prefer” to see the agreement disapproved. And I do not need Tom Dunkel’s permission to post his dumb email to my blog, any more than President Bush has the right to airbrush his press conference transcripts.

Curriculum Reform P.S.

Dear Authors Guild members-only phone conference seminar instructor:

My previous post forgot to add one thing. That's a nifty 28-page manual on how to search for your infringed works. Could really help those of us seeking to take the "seconds" to file our claims, as your brethren at ASJA put it. In fact, it's so good that I'm offering it to anyone who emails me at (please specify PDF or Word format).

But, Mr. or Ms. Instructor, your materials are missing something. At my kids' public schools the teachers are always paying for supplies out of their own pockets, and I don't want you having to do that. So I suggest that you point your attentive pupils toward the boilerplate forms by which they can deny the infringing defendants future use of their works forever and ever. Unless writers submit these denial forms, their rights will be given away, even if they don't file claims!

Go to

Curriculum Reform

Today, I'm told -- four days before the deadline to object or opt out -- the Authors Guild is conducting another one of its members-only phone conference seminars on how to search for yourself for free in cyberspace and prepare your claims.

I don't know if there's a question-and-answer session. In case there is, I thought I'd help out with a few sample questions.

1. Kay Murray, the Authors Guild's general counsel, is listed as the organization's contact person. Mediator Kenneth Feinberg called her one of the "leaders" of the settlement negotiations. Could she please get on the line? What? Ms. Murray doesn't work at the Authors Guild any more? Where is she now? What? She took a job with the Tribune Company? Even before the settlement was finalized? C'mon, guys -- a little discretion, please.

2. Your two fellow "associational plaintiffs," the National Writers Union and ASJA, seem to have the yips. The NWU posted and pulled an "explanation" of the settlement amendment. The later posted and edited a statement that formerly characterized the settlement as "free money" and omitted mention of the License by Default provision, which objectors say will be a sure loser on appeal. (Indeed, the very notice to the class hides the License by Default.) What gives?

3. Moreover, these self-appointed class representatives have disobeyed a July 28 court order to publicize the supplemental notice prominently on their websites. Are you all ashamed of the mess you have wrought?

'This Is Worse Than Anyone Is Imagining'

Independent objector Anita Bartholomew comments:

The potential loss to writers (and profit to databases and publishers) over the years, as a result of this settlement, is worse than anyone is imagining. The release in this settlement absolves all of them of all past, present and future claims, whether related to this lawsuit or not, regarding any article an author doesn't specifically demand to have removed.

So, if the databases/publishers wanted to use stories they got by default future rights forfeiture, as the bases for TV movies, or for published book anthologies, they could with impunity. If they wanted to license articles about heart disease to advertisers of bogus health products, they could. If they wanted to supply the text for travel advertising from previously published travel destination articles, they could. It's free to them, but they can profit from it. Only the writers get nothing. Because the writer has no legal recourse whatsoever if the Defendants and participating publishers overstep the electronic rights parameters. And this whole case came about because databases and publishers overstepped what they legally had the right to do, so why wouldn't they now overstep further?

Your work doesn't have to have been in one of the Defendants' databases to be affected. It can have been used without authorization by any of the eventual Supplemental Participating Publishers. And we don't even have the final list yet of who they will be.

Theoretically, anyone who ever infringed anything by unauthorized display in any publicly accessible non-image-base electronic databases, is released from past infringement and allowed future use so long as they sign on to the settlement as a Supplementary Participating Publisher. It will actually be potentially wildly profitable for someone who has ever infringed to pay a small fee, and get free and clear unfettered rights to your work, forever.

Now if I, a non-lawyer, can read the plain English of paragraphs 1, 5 and 13 of the Settlement Agreement, and figure this out, don't you think that those who participated in writing the language know how much the databases/publishers are getting and how much writers stand to lose?

Named Plaintiff's Ringing Endorsement

"I'm aware of the shortcomings of this settlement agreement. I've voiced them to [plaintiffs' lead co-counsel] Boni et al. However, for reasons I'll not go into here, I'd prefer to see the agreement approved."

Tom Dunkel

UnSettlement Held Hostage ... Day 42

Wednesday, September 07, 2005

Exchange With Named Plaintiff Tom Dunkel

Subject: Re: FREELANCE RIGHTS: UnSettlement Insurrection
To: Irvin Muchnick
Date: Wed, 7 Sep 2005 16:59:27 -0400

Mr. Muchnick,

I'm not E.L.Doctorow. But I am one of those "20 other purported class representatives" you slam on occasion in your public emails. From here on out I wish you'd refrain from attacking people whose motives and character you know virtually nothing about.

First, I'm aware of the shortcomings of this settlement agreement. I've voiced them to Boni et al. However, for reasons I'll not go into here, I'd prefer to see the agreement approved.

Second, contrary to this being a great windfall for named plaintiffs as you have asserted and implied, some of us (meaning those who regularly copyright registered their work through the years) could have made more money launching our own, individual suits. Speaking for myself, I
originally joined this suit with the best of greater-good intentions.

Furthermore, some of us who stuck our necks out by signing on as named plaintiffs, took financial hits in lost business when we subsequently were blackballed by papers and mags with which we'd previously done business.

I do not want to get into an email debate with you. Nor am I trying to deter you from sending out future rally-the-opposition emails. Just, please, quit sniping at us named plaintiffs. We're not the problem. In fact, without us it would have been difficult, if not impossible, for this
reparations issue to have ever gotten off the ground.

Tom Dunkel


Date: Wed, 7 Sep 2005 14:57:21 -0700 (PDT)
From: Irvin Muchnick
Subject: Re: FREELANCE RIGHTS: UnSettlement Insurrection

Mr. Dunkel,

Thanks for your feedback -- but, sorry, no sale.

The objection deadline is five days away. As a fellow writer I’ve reached to the bottom of my vocabulary barrel, and to the smithy of my soul, for a better word than “sellout,” but I haven’t found it. If you’re doing the right thing before it’s too late, then thanks and welcome. But if the shoe fits, then wear it.

I think anyone who read my open letter to Doctorow could see that I’m not without sympathy for the difficult position the class reps were put in. You were recruited with the intention of doing the right thing and you wanted to do the right thing, but the settlement took a horribly wrong turn. That was then. This is now. Now you fully realize, apparently with no thanks to your lawyers, that the License by Default provision, in particular, is a disgrace. Please act appropriately on that knowledge.

Finally, I agree that some class reps stand to do better than others under the proposed settlement. But I didn’t make those assertions out of thin air; they’re based on our analysis of the terms as disclosed (or, in some respects, as hidden). In an April article in The New York Observer -- still the only account, to my knowledge, to make it to the mainstream media -- your fellow class rep Gleick crowed, rather tastelessly I might add, about his coming windfall. The Observer reporter (perhaps with Gleick as the source, perhaps not) speculated that some of you might pull down $100 K. Those are the facts.

Irv Muchnick


In the last 24 hours ASJA issued a statement that we lampooned in this morning's post, "Peanuts Here! Get Your Fresh Roasted Peanuts!" (

Today ASJA sent that statement out as an email burst to subscribers of its sporadic newsletter Contracts Watch. I am on that list.

The email version of the statement added this passage (capital letters in original):


It's the first acknowledgment by any of the associational plaintiffs that the UnSettlement includes what the objectors, and our attorney Charles Chalmers, have been hammering at as the "License by Default," and which former ASJA officer Anita Bartholomew also cited in her independent objection. (The website statement was similarly amended.)

In a parallel edit, there's a passage, "The more claims you file, the more money will be paid to freelancers, up to $18 million, including fees. Get your share." Between those two sentences was a third that is no longer there: "This is free money." ASJA apparently decided that such a claim wouldn't measure up even to the lax truth-in-advertising standards of our times.

Those of us who care about the future rights landscape for freelancers must applaud this limited, but welcome, disclosure. Now I urge the associations to take the next step and attach some useful value judgments to this provision. The September 12 objection/optout deadline fast approaches.

UnSettlement Insurrection

Five days before the September 12 deadline to object or opt out, the fight to derail the train wreck of a copyright class action settlement has gained critical mass.

The Authors Guild, the American Society of Journalists and Authors, and the National Writers Union have tried to sell us down the river. So have the distinguished author E.L. Doctorow and 20 other purported class representatives.

But the settlement, which was a mess from the start, became a bigger mess with a July 28 amendment. Arrogant, incompetent, incomplete, and uneducated communications from the settlement team have opened the eyes of the freelance community to the disastrous ramifications of the settlement's terms, especially the "License by Default," an unprecedented abuse of the class action system.

The authors' associations lack the muscle to unwind this awful deal. Charles Chalmers, the attorney for a slate of objectors led by me, is a brilliant lawyer who has thoroughly exposed the settlement for the piece of sandlot junk that it is. But we may not have the muscle either.

Collectively, however, all of us can stop this thing before writers' rights in the digital age are irreparably maimed. Please do your part.

For background, see:





Author Edward Hasbrouck: 'Why I'm Opting Out'

Edward Hasbrouck -- author of The Practical Nomad: How to Travel Around the World ( -- has granted us permission to post his unanswered emails to the settlement administration team. They are reproduced below.

In the first, dated September 1, Edward notes that he has not received the requested confirmation of his notice to exclude himself from the settlement class (“opt out”). In addition, he calls to the administrator’s attention the Catch 22 paradox that writers wishing to submit comments cannot do so unless they first certify that they are class members.

In the second, dated today, Edward follows up with plaintiffs’ co-lead counsel A.J. De Bartolomeo, Diane Rice, and Michael Boni. Edward says, “I am excluding myself from the class because it is impossible for me to determine, and will remain impossible for me to determine until after the deadline for deciding whether to opt out, whether I am or am not a member of the class. This also makes it impossible for me to determine whether the proposed settlement would be in my interest (although based on the incomplete information I have now, I believe that it would not).”

This, he adds, is “because (1) additional "Supplementary Participating Publishers" who have infringed my work may may join the settlement, thereby acquiring rights in perpetuity to continued use of that work, *after* the deadline for me to decide whether to participate in the settlement, and (2) infringement by "Supplementary Participating Publishers" is included in the class and the settlement if and only if that infringement was or is carried out pursuant to a (purported) contract with one of the "Defendants" or "Participating Publishers", a fact which is unknown and unknowable to me without further discovery.


From: Edward Hasbrouck
Date: Wed, 07 Sep 2005 08:37:28 -0800
Subject: (Fwd) Request for exclusion from settlement class

Since I have received no reply to the message below, as sent to the e-mail address on the "" Web site, I am resending it to you in accordance with the statement in the "Notice of Settlement" on that Web site, which gives your addresses and says that: "Any questions that you have concerning the matters contained in this Notice may also be directed in writing to any of the following Co-Lead Counsel for plaintiffs and the Class."

Please also advise me whether, having excluded myself from the class subject to the proposed settlement, I need to make a separate request (and if so, to whom) to withhold licensing of rights to future use of my work.

I am excluding myself from the class because it is impossible for me to determine, and will remain impossible for me to determine until after the deadline for deciding whether to opt out, whether I am or am not a a member of the class. This also makes it impossible for me to determine whether the proposed settlement would be in my interest (although based on the incomplete information I have now, I believe that it would not).

This is because (1) additional "Supplementary Participating Publishers" who have infringed my work may may join the settlement, thereby acquiring rights in perpetuity to continued use of that work, *after* the deadline for me to decide whether to participate in the settlement, and (2) infringement by "Supplementary Participating Publishers" is included in the class and the settlement if and only if that infringement was or is carried out pursuant to a (purported) contract with one of the "Defendants" or "Participating Publishers", a fact which is unknown and unknowable to me without further discovery. For example, has been added as an additional "Supplemental Participating Publisher". I believe that has infringed my work through unauthorized electronic distribution of images of pages of my books included without my knowledge or consent in its "Search Inside the Book" electronic publishing program. But those whose work was infringed by a "Supplemental Participating Publisher" are members of the class eligible to participate in the settlement if and only if that infringement by the "Supplemental Participating Publisher" was carried out pursuant to a (purported) contract with one of the "Defendants" or the "Participating Publishers", according to the notices at:

I do not know what, if any, purported contract may exist between and my publisher or any other party. My publisher has informed me that a contract exists between and some party (I don't know whether that party is my publisher, my publisher's distributor, or some other party) concerning the inclusion of my book in "Search Inside the Book". But according to my publisher, the terms of that purported contract forbid my publisher from disclosing it to me without the consent of, which has refused to give.

Accordingly, I am unable to determine whether the infringement of my work by was carried out pursuant to a (purported) contract with one of the "Defendants" or the "Participating Publishers" in the class action, and I am thus unable to determine whether I am eligible to participate in the class or the settlement.

Please advise me, as a possible member of the class you claim to represent, how I can determine whether the infrignement of my work by -- or any other publisher who is, or who might subsequently (after the deadline for me to decide whether I am eligible to, or wish to, participate in the class) include themselves as a "Supplemental Participating Publisher" -- was carried out pursuant to a (purported) contract with one of the "Defendants" or the "Participating Publishers" in the class action, and thus how I can determine whether I am eligible to participate in the class and if so, whether I wish to do so.

I look forward to your prompt reply.

Edward Hasbrouck

------- Forwarded message follows -------

From: Edward Hasbrouck
Subject: Request for exclusion from settlement class
Date sent: Thu, 01 Sep 2005 15:04:25 -0700

I completed the form on the Web site at:

to exclude myself from the proposed settlement in the "In Re Literary Works in Electronic Databases" class action.

I received no confirmation of receipt of my request for exclusion from the class. Please acknowledge receipt of this message, and confirm my exclusion from the class.

I also call to your attention that the form at:

requires as a condition of submitting a comment that the would-be commenter check a box labelled, "By checking the "I Agree" box, I hereby certify that I am a class member."

This precludes those who are uncertain whether they are members of the class from submitting comments or questions (including questions about how to determine whether they are part of the class). It also ensures that, no matter how many people are unable to determine whether they are in the class, you won't receive comments from any of them.

Edward John Hasbrouck

ASJA: Peanuts Here! Get Your Fresh Roasted Peanuts!

The American Society of Journalists and Authors remains in violation of a court order requiring the associational plaintiffs to publicize prominently a July 28 amendment to the preliminarily approved copyright class action settlement. ASJA also didn’t find the UnSettlement important enough to cover in the new issue of its magazine. “The nation’s leading organization of nonfiction writers” publishes its findings at intervals, like Smokey the Bear on fire prevention.

But now ASJA has awoken from its stupor, descended from the mountain, and issued a new bulletin, “Freelancers: File Your Claims And Get Your Share Of $18 Million,”

In response, your humble blogger announces a readers’ contest to pick out the bullet point in the ASJA statement with the most pitch-perfect imitation of The Onion, the satirical weekly newspaper. The winner receives a free UnSettlement claim worksheet in Excel format. All entries should be sent by September 12, the objection/optout deadline, to

In order to give contestants a fighting chance at the correct answer, we’ve narrowed it down to the following choices:

· “If you don't have records or cannot recall all the stories you wrote, you may find searching various databases useful. Try,,, Lexis-Nexis by credit card at and others often available for free at your local library.”

· “When in doubt, file. It takes seconds.”

· “If you were forced to retroactively sell electronic rights through ... master agreements, you should file claims for those stories. However, you will receive 35 percent less because you have signed away future rights.”

· “The more claims you file, the more money will be paid to freelancers, up to $18 million. That is free money. Get your share.”

We will be forced to disqualify any contest entrant who submits a statement about the fact that the settlement secretly gives away rights in perpetuity to the works of any writer who doesn’t deny them to the defendants explicitly, whether or not he/she is filing a claim, knows about the settlement, or lives in the Seychelles Islands. For there is no such information in the ASJA statement.

UnSettlement Held Hostage ... Day 41

Tuesday, September 06, 2005

If You Read Just 3 Grafs of Anita Bartholomew's Declaration, Read These

6. I have tried to discover why, if the associational plaintiffs believe this settlement is a win for writers, they would not disclose the provision that causes losses to class members by default -- and in some cases, may cause writers to lose control of the rights to their lifetimes’ work without their even knowing it has happened.

7. In researching this issue, I have come to the conclusion that the attorneys and negotiators for the associational plaintiffs are not disclosing this troubling provision so as to limit claims made in the settlement by writers who are not affiliated with the associations while encouraging association members to file aggressively. This will ensure that more members of the associations will file and be paid, and those negotiating on their behalf will retain their goodwill for what is being touted as a “win” for freelance writers’ rights. This goodwill will quickly dissolve if significant percentages of eligible writers in the nationwide and worldwide freelance communities were to file claims and deplete the settlement claims funds available to association members.

. . .

21. This settlement agreement is more than just a bad deal for writers, it is a betrayal of writers by the associational plaintiffs, even though I am certain that was never the intention. I am certain that the associational plaintiffs had only the best intentions when going into these negotiations and have convinced themselves, despite the evidence, that they have done their best. But it is not their best. It would be better that they had done nothing than to negotiate a settlement that gives Defendants who have infringed writers’ works for years without compensation or authority the legal right to use those same works for free, forever. At least with no settlement, those who do not file claims will not forfeit future rights to their works by default without their knowledge or consent. The worst thing about this betrayal is that it is done by stealth, and will catch most writers completely by surprise when at different points in the future, one by one, writers discover what they believe are new infringements and learn that, legally, these aren’t infringements at all. I cannot imagine the sense of betrayal when writers learn that the writers’ associations signed onto a legal document that gave their intellectual property rights away – but never told them. The bar to convincing writers unfamiliar with this default future rights forfeiture that these associations would negotiate such a settlement is high. Because the associational plaintiffs have long been associated with the campaign to help writers retain rights, it is like telling people that Santa is coming down their chimneys to steal all their presents.