Author Edward Hasbrouck: 'Why I'm Opting Out'
Edward Hasbrouck -- author of The Practical Nomad: How to Travel Around the World (http://hasbrouck.org/ -- 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
To: ajd@girardgibbs.com, drice@hosielaw.com, mboni@kohnswift.com
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 "copyrightclassaction.com" 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, Amazon.com has been added as an additional "Supplemental Participating Publisher". I believe that Amazon.com 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:
http://copyrightclassaction.com/notices.php3
I do not know what, if any, purported contract may exist between Amazon.com and my publisher or any other party. My publisher has informed me that a contract exists between Amazon.com 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 Amazon.com, which Amazon.com has refused to give.
Accordingly, I am unable to determine whether the infringement of my work by Amazon.com 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 Amazon.com -- 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.
Sincerely,
Edward Hasbrouck
------- Forwarded message follows -------
From: Edward Hasbrouck
Subject: Request for exclusion from settlement class
To: http://us.f607.mail.yahoo.com/ym/Compose?To=CopyrightSettlement@girardgibbs.com&YY=29625&order=down&sort=date&pos=0&view=a&head=b
Date sent: Thu, 01 Sep 2005 15:04:25 -0700
I completed the form on the Web site at:
https://cert.tgcginc.com/edb/exclusion.php3
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:
https://cert.tgcginc.com/edb/comments.php3
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.
Sincerely,
Edward John Hasbrouck
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
To: ajd@girardgibbs.com, drice@hosielaw.com, mboni@kohnswift.com
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 "copyrightclassaction.com" 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, Amazon.com has been added as an additional "Supplemental Participating Publisher". I believe that Amazon.com 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:
http://copyrightclassaction.com/notices.php3
I do not know what, if any, purported contract may exist between Amazon.com and my publisher or any other party. My publisher has informed me that a contract exists between Amazon.com 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 Amazon.com, which Amazon.com has refused to give.
Accordingly, I am unable to determine whether the infringement of my work by Amazon.com 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 Amazon.com -- 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.
Sincerely,
Edward Hasbrouck
------- Forwarded message follows -------
From: Edward Hasbrouck
Subject: Request for exclusion from settlement class
To: http://us.f607.mail.yahoo.com/ym/Compose?To=CopyrightSettlement@girardgibbs.com&YY=29625&order=down&sort=date&pos=0&view=a&head=b
Date sent: Thu, 01 Sep 2005 15:04:25 -0700
I completed the form on the Web site at:
https://cert.tgcginc.com/edb/exclusion.php3
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:
https://cert.tgcginc.com/edb/comments.php3
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.
Sincerely,
Edward John Hasbrouck
posted by Irv Muchnick at 9:40 AM
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