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