Tuesday, September 06, 2005

Powerful Declaration by Independent Objector Anita Bartholomew

Long-time ASJA member, and former ASJA officer, Anita Bartholomew last month filed a powerful -- and independent -- objection with Judge Daniels. See “Independent Objector Protests 'License by Default',” http://freelancerights.blogspot.com/2005/08/independent-objector-protests-license.html. The court clerk’s records now show receipt of an equally powerful declaration by Bartholomew in support of her objection. Because of its importance, we're again posting the full text below.

I, ANITA BARTHOLOMEW, a member of the class in this action, under penalty of perjury, declare as follows:

1. I learned about the class action in the above case on the private online message forum of ASJA, one of the associational plaintiffs. I have been a member of ASJA for approximately eleven years and am a former officer of the organization. Absent my ASJA membership, I probably would not have learned of the class action or of the proposed settlement. Although I have written dozens of articles for a number of the publications listed on the official website, I did not receive the March 2005 Notice in the mail. Attached as composite EXHIBIT A are printouts of a relevant copyright registration and a printout from Highbeam, which was recently added to the list of Defendant databases, showing one of my registered articles, written for Good Housekeeping magazine, offered on this database, in violation of my copyright.

2. Although I learned from ASJA that there was an $18 million settlement in a class action brought to remedy infringements by the Defendants of freelancers’ articles, no one involved in the negotiations or settlement ever publicly disclosed that freelancers who did not file claims would forfeit future rights to the Defendants by default without their consent, for no compensation whatsoever. This is not mentioned in the Notice nor on the official website for the class action. It is not addressed on the websites of any of the associational plaintiffs. There is no indication that this is so in the announcement provided to the press and printed in the ASJA newsletter. Although this issue was discovered independently by another group of objectors, Muchnick et al, and by me, and was brought to the attention of representatives of the associational plaintiffs, all associational plaintiffs have continued the pattern of non-disclosure in updates of their announcements. The administrator has continued the pattern of non-disclosure on its website and in the publication of a Supplemental Notice. It is apparent that none of the parties or attorneys involved in this settlement wish to have members of the class to learn of this Trojan Horse provision.

3. This excerpt from a June 26, 2005 message to ASJA members from associational plaintiff negotiator Jim Morrison after someone asked about the issue of future rights related to this settlement is typical of the misleading statements that have been made by associational plaintiffs’ representatives: "Just a clarification: under the terms of the settlement NO writer has to give up future rights. That was a non-negotiable position by us. We would not have settled had writers not been given control to choose whether to turn over future uses of their stories." What he fails to say is that all writers who do not file claims lose their future rights by default.

4 . Associational plaintiff negotiator Gerald Colby of the NWU is quoted in a joint March 2005 associational plaintiff press release announcing the settlement [EXHIBIT B] as stating, "…the rights of writers and artists to own their own creations and to earn a living from them must be respected -- even by the nation's most powerful media corporations." Nowhere does Colby or anyone else quoted state that this settlement makes it impossible for any writers who do not file claims to continue to earn a living from their creations because the settlement gives Defendants future rights by default, for free, forever, to any article Defendants have infringed and for which a writer does not file a claim. Further, individual writers would have to compete to sub-license their work with databases that will have free and clear rights to virtually every article published in major and other periodicals since the 1970s. It is a competition no individual writer can win and will render writers’ own continuing non-exclusive rights to their works valueless.

5. In July 2005, I asked Jim Morrison and another ASJA board member to at least publicize the default forfeiture provision so writers could protect themselves. They did not do so.

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.

8. My research indicates that the maximum amount the Defendants agreed to pay under the terms of the settlement is barely sufficient even to pay all possible claims of all freelancers whose articles were originally published in The New York Times and Philadelphia Inquirer, two newspapers that sold their content to the database Defendants.

9. Here is how I arrived at the conclusion referenced in paragraph 8, above. I searched online for information concerning how many freelance articles were affected by the Tasini decision at a given publication. I discovered this quote at http://chronicle.com/free/v48/i20/20a02901.htm (EXHIBIT C) regarding the Philadelphia Newspapers: “Dick Cooper, the research-services manager at Philadelphia Newspapers -- which includes The Philadelphia Inquirer and The Philadelphia Daily News -- says the company has permanently purged one-third of its 2.5 million online articles. ‘Unless there is a change in the law, that is going to be lost from our public file,’ he says. "We're not going to be renegotiating any past work.’" In other words, the corporate research-services manager himself has identified about 834,000 articles -- one-third of 2.5 million articles -- that would be eligible for claims in this class action.

10. My search also turned up references to The New York Times’ plans for deletion of articles that were affected by the Tasini decision and would be eligible for claims under this settlement. According to an article on the Newspaper Association of America that I found here, http://www.naa.org/artpage.cfm?AID=2195&SID=107 (EXHIBIT D) The New York Times is said to have had 115,000 articles from freelancers in its database for which it did not have the rights. According to an article I found here: http://www.infotoday.com/it/oct01/pike.htm (EXHIIBIT E), The New York Times estimates those 115,000 articles to be 8% of the articles in its database, which means its entire database would include about 1.32 million articles.

11. I cross-checked ASJA’s 1994 to 1999 Paycheck database to learn what fees had been reported by members as payment for articles contributed to The New York Times and The Philadelphia Inquirer. This ASJA resource, we have been told by those who negotiated on our behalf in the class action, was one of those used to arrive at the settlement and, presumably, to determine that the settlement was fair. But using Paycheck data, I discovered the settlement amounts are only a miniscule fraction of what would be necessary to pay all potential claims in this class action.

12. For the purpose of my calculations, I made the following assumptions: that the representatives of the two newspaper companies were telling the truth about the number and percentages of articles affected by Tasini (and therefore, by this settlement): that half the Philadelphia Newspapers’ freelanced articles mentioned by Mr. Dick Cooper had appeared in the Philadelphia Inquirer; that not a single article written for either newspaper had been registered by any author (so that all would be lowest possible claim level Class C claims); and that Paycheck fee reports from 1994 to 1999 were representative of fees paid to all freelancers by these two newspapers.

13. What I discovered is that, based on the above assumptions, in the Philadelphia Inquirer, claims (assuming no copyright registrations whatsoever) could be roughly estimated as follows:

12.5% of claims would be for $50 = 52,125 articles, total $2,606,250
25% of claims would be for $25 = 104,250 articles, total $2,606,250
50% of claims would be for $15 = 208,500 articles. total $3,127,500
12.5% of claims would be for $10 = 52,125 articles, total $521,250

TOTAL of potential Philadelphia Inquirer claims: $8 861,250.

That’s just for one newspaper.

14. I performed the same calculations with all articles reported to Paycheck between 1994 and 1999 for The New York Times, (excluding those that reportedly were written under all rights and WMFH contracts). Under the same assumptions I used for the Philadelphia Inquirer, the potential total claims for unregistered articles that first appeared in The New York Times can be roughly estimated as follows:

4% of claims would be for $50 = 4,600 articles, total $230,000
28% of claims would be for $40 = 32,200 articles, total $1,288,000
64% of claims would be for $25 = 73,600 articles, total $1,840,000
4% of claims would be for $15 = 4,600 articles, total $ 69,000

TOTAL of potential New York Times claims: $3,427, 000

GRAND TOTAL for both newspapers, assuming parameters above: $12,288,250.

15. However, if the parties' estimates are accurate, that 1/10th of one percent of freelancers register copyrights, then we can roughly estimate that there are 532 registered articles among the 532,000 written by freelance writers for just these two newspapers, The New York Times and The Philadelphia Inquirer. If just half of those registrations were timely, the value of all eligible claims for just these two newspapers would increase to roughly $12.6 million. That would leave a total of approximately $400,000 to pay all other claims for what are likely to be millions of other eligible registered and non-registered newspaper, magazine and trade journal articles contributed by freelance writers to the other approximately 25, 997 publications on the publications list at the class action website. I hope this honorable Court sees how impossible it is under these circumstances to call this maximum settlement amount either fair or reasonable.

16. Although only a certain percentage of eligible claimants file claims in any class action, experienced attorneys including one of the plaintiffs’ attorneys in this case, have been quoted in major periodicals [EXHIBITS F& G] as stating that from 8 to 70% of eligible claimants in other cases had filed claims. It should be apparent when comparing the potential claims amounts to the potential percentages of eligible claimants who may file claims, that the associational plaintiffs have an interest in keeping claims in this class action as low as possible. Otherwise, they will not be able to support the assurances they have repeatedly made to members of their associations that they are likely to get full payments for all their claims.

17. A significant segment of the writing community is passionate about retaining rights to their intellectual property, more so than is likely to be enthusiastic to file claims when class actions, as a whole, have a reputation for paying extremely little for claims made. If writers who are members of this class had been informed of the default forfeiture of rights they will suffer by not filing claims, significantly more will be likely to file.

18. ASJA’s former Contracts Vice President, Dan Carlinsky headed ASJA’s rights campaign from 1994 through 1999, a campaign focused on helping freelancers retain the rights to their intellectual property when signing contracts with periodicals publishers. It is this campaign that ASJA is probably best known for.

19. I asked Carlinsky to quantify the interest in retaining rights among freelancers while he ran the campaign. The email he sent in answer to my query is attached (EXHIBIT H). Here is a relevant excerpt: “We fielded requests for information and guidance seven days a week, pretty much around the clock (international correspondents e-mailed throughout the night, our time). I couldn't give you a hard number, of course, but certainly writers who directly asked for help beyond reading Contracts Watch numbered in the thousands.”

20. Clearly, writers who were this committed to protecting their rights did not stop caring once Carlinsky stopped running ASJA’s rights campaign. Writers still associate ASJA with the campaign. Those who associate ASJA with Carlinsky’s campaign would never expect that a class action settlement endorsed by the association would deprive them of their intellectual property rights. And, as I pointed out earlier in this declaration, statements by associational plaintiffs’ representatives are designed to keep writer in the dark about the default forfeiture of rights and even to mislead them into believing that the settlement is a “win” in the rights campaign.

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.

22. I ask that this honorable court be respectful of the passion that writers have poured into protecting their intellectual property rights and not to permit those rights to be taken from them by default without their knowledge or consent through this settlement agreement. I also ask this honorable Court to take notice of the fact that the maximum amount the Defendants agreed to pay out is miniscule compared to what would be necessary to actually pay the claims’ amounts stated in the Notice if eligible writers file claims at the rate that claims have been filed in other class actions. This settlement has been, at best, misrepresented by the associational plaintiffs and the official class action website through non-disclosure and distortion of material facts. The class action itself is not widely known among writers who do not belong to the associational plaintiffs’ associations and yet, all freelance writers stand to lose as a result of its default rights forfeiture provision.


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