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.


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