Wednesday, June 29, 2005

Lawyers Ordered to Produce 2000 Posner v. Gale Group Complaint

Judge George B. Daniels has ordered plaintiffs' counsel to produce by July 1 "any complaints, original, amended etc. filed in Posner v. Gale Group." As explained in my previous post,, Posner was the first of the several copyright class actions that were filed in different venues in August 2000 and later consolidated before Judge Daniels. At the time I was a consultant for the firm of Spencer Hosie, now lead plaintiffs' co-counsel in the settlement to which I and other class members are objecting. Judge Daniels denied other elements of our motion to obtain information.

Monday, June 27, 2005

Is This the Best They Can Do?

In yesterday’s “Open Letter to the Freelance Community” (, attorney Charles Chalmers referred to class counsel’s “hide the ball” approach to gaining approval of their defective settlement.

There’s no shortage of sports metaphors to use in describing the settlement defenders’ tactics. Unlike in basketball, without a shot clock governing the approval schedule, they’re deep into their four-corner slowdown offense.

Thus when Chalmers asked them to provide some documents, he was just ignored. This wasn’t esoteric stuff, mind you; one requested document was a copy of the August 2000 Posner v. Gale Group complaint, the first of the copyright class actions that were later consolidated. (The original complaint is missing from the consolidated records in the district court clerk's files in New York.)

After four days of being ignored, Chalmers filed with the court a motion for the production of information so that all of us could have an opportunity to evaluate the settlement more intelligently before the July 15 deadline to opt out or object.

In a desperate response to an impediment to settlement approval that they didn’t anticipate (although anyone who knew the first thing about my 11 years of work in this field could have anticipated it), plaintiffs’ counsel next resorted to elbows and knees. Chalmers, they said in an opposition brief last Friday, is a “professional objector.” Previously the former president of the American Society of Journalists and Authors, Jim Morrison, had floated the same canard in widely distributed emails.

Make no mistake, the term “professional objector” is a slur. As Chalmers noted in our reply brief today, “We doubt this Court would stand for a minute with counsel for a party referring to an opposing counsel by derogatory terms, like ‘sleazy attorney’...” A professional objector is a lawyer who tries to “extract a fee” by filing unhelpful, generic, or “canned” objections.

But there’s another term of art more applicable to Charles Chalmers’ work: "beneficial objector.” He has participated as counsel for an objector in six cases prior to this one. In five of them his efforts resulted in changed settlements or reduced attorneys’ fees; in the sixth, he recently filed a petition for certiorari with the U.S. Supreme Court. As the client who approached him -- it wasn’t the other way around -- I can attest that Chalmers, who has never been criticized by a court, takes very seriously his professional obligation to present non-frivolous arguments.

In one sense I welcome class counsel’s cliché-driven name-calling. Tactics like this help expose the settlement for how bad it is.

Sunday, June 26, 2005


When this settlement was announced several plaintiffs, and a class counsel, made announcements saying the settlement is great. The deadline for class members to opt out of the proposed settlement, or object to it, is about three weeks away. I presently represent four class members who either will, or may, object to the settlement. I think that class members might benefit from hearing a dissenting view of this settlement. So this is my thinking as of today.

First, these are the basic facts. Since the 1980s a huge group of publishers (thousands are identified on the settlement website) and a group of database companies have been systematically infringing the copyrights of freelance writers. They have done it to make a profit. Their theory of non-infringement was rejected by the Second Circuit Court of Appeals in 1999 and then by the Supreme Court in 2001. The class actions were filed in 2000, so they reach back, for recovering damages, to 1997. And of course they cover all infringement up to the present. At least some infringement has continued up to the present.

There are many indications that this settlement is flawed. But I’ll start with what we don’t know. We don’t know whether $18 million is an adequate settlement to compensate the class members for all the infringement by all the defendants[1] (a vast list of virtually every significant publisher and every significant database) since 1997, a period of 8 years. We don’t know because the class attorneys haven’t disclosed the information, which they say they have, that justifies the $18 M. They say they have a report from an expert economist on the damages, but they haven’t given that, or any other damage information, to the Court. They have refused to give it to my clients. They’ve set up a website, but there is none of the needed information there.

Class members must decide whether to opt out or object before July 15th. The class attorneys asked the Court to establish a schedule which says their “Final” presentation in support of the settlement will be filed on July 15th. Maybe the needed information will be in that presentation, but then it will be too late for class members to consider it in deciding to opt out, or object. Why did the class attorneys set up a schedule that presents the justification for the settlement after the deadline to object or opt out?

What sort of information do we need? Under copyright law we should be told how much revenue, and how much profit, each of the defendants has made from the infringement. We should know when each defendant started infringement. We should know which defendants kept on infringing after the Supreme Court confirmed it is infringement. The databases contain both freelance works and publisher owned works, so we should have information on the respective amounts of each kind that the publishers have given to the databases.

The law says one of the most important factors, if not the most important, in approving a settlement is comparing the settlement to the maximum damages that might be recovered for the class. But the class attorneys didn’t give that information to the Court when they got preliminary approval, and they haven’t given it to the class, and they won’t give it to my clients, who have specifically asked for it. Maybe they’ll provide it in the “Final” presentation, but that is too late for you to object, or to opt out and file your own individual action for infringement. The settlement has a clause that lets the defendants drop out of the settlement if too many class members opt out. The part that is secret is the number of opt outs that triggers defendants’ right to back out. So, they don’t want you to opt out, and keeping the information about the value of the settlement secret is one way to avoid it.

This “hide the ball” approach is one of the reasons that I strongly suspect that if all the information was out in the open there would be a general disapproval of the settlement. Additional reasons include the other efforts that the class attorneys have made to suppress objection. They got the Court to say that if you want to object to the settlement you (or your attorney) must actually appear in court in New York City on July 28th. I think this requirement violates the Due Process clause of the U.S. Constitution, but that’s an argument for another day.[2] This settlement covers freelance writers from all over the United States, and all over the world. So, the class lawyers established a procedure that says you must travel to one of the most expensive cities in the world to object to the settlement. The vast majority of class settlements let the class members present objections in writing by an established deadline. Why did these class attorneys establish such a burden for class members (their “clients”) to object? Another factor that a court considers in approving a class settlement is the number of objections that are received. The “must appear” procedure here will suppress the number of objections. Not many class members will spend hundreds, or thousands, of dollars to go to New York.

When the class attorneys asked the Court for preliminary approval, the Court suggested a final hearing day in September 2005. No, the class attorneys said it should be sooner, and the date was set for July 28th. It’s a small point, but those class attorneys know, as I do, that the more time a class has to consider a settlement, the more likely there will be objections, so they made the time as short as possible.

What I’ve said about a lack of information concerning the total settlement amount applies with equal force to the amount specified for the three “Categories.” There is no information available to the class members to explain, or justify, the individual awards. So far as any class members can understand, these are just numbers out of a hat.

The plaintiffs and the class attorneys have presented just three justifications for this settlement. One, the named plaintiffs think it’s a good settlement. The associations have been particularly vocal in saying it’s a good settlement, although they say very little about why. Two, the class attorneys say it’s a good settlement. The law recognizes two things about the opinions of class attorneys when it comes to approval of a settlement. First, their opinion is entitled to respect. Second, one should be careful about the class attorneys’ opinion, and double check it against facts that can be confirmed, because their opinion might be affected by the fact that an approved settlement is going to provide them with a substantial payment.

The third justification appeared when, on behalf of Irv Muchnick, I asked the Court to vacate the preliminary approval because there had been no factual showing that the settlement was good. The plaintiffs presented a statement from the mediator who helped the parties negotiate the settlement. The mediator said, with great elaboration, that the settlement was great, and the best that could be gotten from the defendants. However, the mediator is to receive a “success fee” if the settlement is approved. A “success fee” is generally a contingent payment that occurs when there is “success.” In this case that is settlement approval. We’ve asked for the details of this success fee, and the class attorneys have refused to provide it. How reliable is the opinion of this mediator, who stands to gain something from settlement approval?

There are numerous defects in the settlement itself, aside from the question of the total amount. I’ll provide a partial listing:

1. Category C claims can receive nothing if Category A and B claims eat up the money left over (probably about $13 M) after payment of attorneys’ fees and administration costs. The class attorneys say this is unlikely, but why should the C claimants bear the risk? They are getting modest recoveries as it is. Sounds like the representatives of the Cs didn’t negotiate very well against the representatives of the As and Bs. Wait a minute! They all had the same representatives. Who would want such a provision – well, As and Bs. Pretty hard to imagine that the defendants care who gets the $18 M, so long as they get out of these cases. So the representatives of the whole class favored one part of the class over another. More on this below.

2. Category A awards are very modest considering the strength of an A claim. An A claim is entitled to statutory damages and to attorneys’ fees. Statutory damages means the plaintiff doesn’t have to prove any actual damage, or profit by the defendant – they automatically get damages set by a jury. The statute gives them between $750 to $30,000 for just one infringement. Remember, there is no question here that there has been infringement. If the infringement is willful the statutory damage can go up to $150,000. There is certainly some willfulness here, since the defendants kept on infringing after the Supreme Court decision. That is for each work, a book or article. And the A claimant is entitled to their attorneys’ fees while they pursue their claim for statutory damages. So why is the recovery for an A claim set at $1,500? We don’t know. There has been no explanation for that number, and there won’t be one until the time for opting out is past. If there is any group of class members that should seriously be considering an opt out, it is class members with one or more A claims.

3. The Notice to the class, and the Claim Form, say that articles in “scientific or academic journals” are excluded from the settlement.[3] No explanation of the reason has been given. The complaints filed to start the class actions didn’t exclude articles published in any particular kind of publication. It included all types of articles. No definition, or listing, of these excluded journals is given. The settlement website has an enormous list of publications that “sold its content to one or more electronic database.” ( One of my clients has an article in Physics Review, which is almost certainly what they mean by a “scientific” journal. But Physics Review is on their list of publications that “sold” their content to databases, and my client’s article is on a database. Why should he be excluded from compensation when the publication sold his article to a database? Why should the right to compensation depend on the type of publication, rather than, say, the type of subject? Lots of articles on scientific or academic subjects are published in more general publications, from The New York Times to Better Homes and Gardens. In short, for some unknown reason, the named plaintiffs and class attorneys, who set out to represent all freelancers without regard to the type of publication, have now abandoned a sub-group of the class.

4. The default perpetual license. The settlement provides that if a class member doesn’t write in and state that defendants cannot use their work in the future, the class member will have given the defendants the right in perpetuity to use the work in databases. This provision is not described in the Notice. There is a very vague allusion to it, but I doubt anyone will understand it. So in the six weeks from Notice to deadline, any class member who fails to deny defendants future use will give them a license, without any compensation. My clients will argue that this is not permitted under the law, but the more important question is why the plaintiffs would agree to this kind of “forfeiture” of class members’ property rights. There is a well known way to compensate holders of copyrights for future use, like the one used for music. The Supreme Court said this was good model for freelancers when it rejected the publishers’ arguments in 2001.

5. An A category class member is one who registered within three months of publication, or before first infringement. If the class member registered after three months, how are they supposed to know when first infringement was? The defendants were not giving out notices of when they placed articles in databases. There are similar definitional problems for other categories.

6. The cut-off for registration of December 2002 makes no sense and is an arbitrary deadline.

Three aspects of the way this class action has been handled deserve attention, and contribute to my belief that this settlement is highly suspect.

1. The association plaintiffs. The law says that a class action named plaintiff, who represents the interests of the class, must have a claim that is typical of the claims held by class members. This lawsuit is about claims for damages for copyright infringement. So far as anyone knows or has ever said, the associations don’t have any copyright claims for damages. But the associations have played a major part in the case, particularly the settlement negotiations. The requirement that a named plaintiff have a “typical” claim is to insure that, while they are managing the action for the class they have the same interests as the class. The class interest here is to recover money and stop infringement. The associations may share that interest, but they may also have different interests. In 2000, the year these actions started, the National Writers Union stated: “But our first choice is not to engage in a legal war that ties everyone up in court and creates an all-out war over rights. Such draconian actions serve only to create conflict and instability in the industry.” (Paula J. Hane, “Freelance Authors Turn Up the Heat,” Information Today NewsBreaks, August 21, 2000.) The important point here is that the associations had no right to be named plaintiffs, or to be involved in settlement of damages. The law says they are not qualified for that role.

2. The non-litigation, litigation. The process of a law suit, in general, is simple. Plaintiff files a complaint. Defendant files an answer, or moves to dismiss the case. If an answer is filed the parties start “discovery” in preparation for trial. If a motion to dismiss is filed there are proceedings about that, and if some claim is permitted to proceed, the parties go to discovery. Discovery is a process by which you gather facts from your opponent. It involves interrogatories (written questions to be answered under oath), production of documents (to be produced under oath) and depositions (examination of witness, under oath). Discovery can be long or short, depending on the complexity of the case. But even in complex cases they are ready for trial within 2 to 4 years of discovery.

This case never got beyond complaints. There have been no answers by defendants, no motion to dismiss, no discovery, no nothing. Just settlement negotiations. Defendants may settle without being pushed by the prospect of going to trial, but if they are not threatened with a trial they are not going to be under much pressure. It is virtually unheard of to go five years in a case without doing anything but talk settlement. Plaintiffs had a tremendous sword in this case. There is no question that the defendants have been infringing for years. There were estimates of damages in the hundreds of millions of dollars. But the plaintiffs and the class attorneys put the sword in the sheath and said “let’s talk.” And they talked for four years. And they talked in front of a mediator who will get a “success” bonus it there is settlement, but no bonus if there is not.

3. The need for sub-classes. When there is a conflict between groups with a class there should be sub-classes, with separate representatives and separate attorneys for each sub-class. There is clearly a conflict between As and Bs on the one hand, and Cs on the other, when the settlement provides that Cs lose some or all of their awards if there is not enough money to cover all claims. But there are no sub-classes – the same representatives and attorneys represented them all, but they favored the As and Bs on this point. One has to wonder if there are other ways that Cs got shortchanged?

[1] The class action were not filed against all publishers, but the settlement allows them all to chip in for the settlement price and buy protection against suits against them.
[2] It is the intention of at least Irv Muchnick to appeal any settlement approval based on this issue.
[3] Curiously, the settlement agreement itself does not exclude these publications.

# # #

Wednesday, June 22, 2005


The American Society of Journalists and Authors is an “associational plaintiff” of the $10-to-$18-million copyright class action settlement and -- perhaps not coincidentally -- the settlement’s most vocal defender. (For his part, Gerard Colby, president of another “associational plaintiff,” the National Writers Union, told the Canadian Press wire service, “I would have handled it very differently.” Wonder what that means?)

Whether ASJA, NWU, AG (Authors Guild), or any other alphabet-soup organization has any business foisting itself off as a representative of a class of plaintiffs in this lawsuit is problematic. After all, none of these entities was itself harmed by the defendant database companies and first-print publishers. These organizations are merely self-appointed advocates of writers’ rights, and their pipsqueak of a preliminary settlement is ample proof that their advocacy can be either more or less effective.

The real question is, Is it legally binding?

With respect especially to ASJA -- whose stock-in-trade is the hyping of supposed insider perks and networking opportunities for writers -- this question is far from academic. For we now know that since some time in 2004, during the planning of ASJA’s annual writers conference in New York in April 2005, ASJA has been riding LexisNexis, one of the industry’s biggest and most longstanding bad guys, as enthusiastically as Red Pollard rode Seabiscuit.

“On a Tight Deadline and Need 20,000 Premium Resources at Your Fingertips? LexisNexis AlaCarte!” gushes an advertisement on the ASJA home page ( The click takes you to, where you’re invited to visit the company’s “Tech Center at the ASJA Conference for more information on a Special 2 for 1 Offer for conference attendees.”

As with so much in the smoke-and-mirrors world of ASJA, there could be less to LexisNexis AlaCarte than meets the eye. As a non-member myself, of course, I didn’t qualify for the Special 2 for 1 Offer. But I still was able to register with the service. That is to say, I provided credit card information in return for free access to LexisNexis bibliographic citations, the gateway to chronic full-text ripoffs of writers’ copyrighted works. (If you choose to order the full text of a particular article, you’re charged $3 on a pay-per-view basis.) AlaCarte is similar to the company’s other public-access product, LexisNexis by Credit Card, though AlaCarte does appear to have some superior tools, such as search by publication source, making it more like those other new popular serial infringers on web platforms, HighBeam and FindArticles.

This is not a product review, however. This is a report that an associational plaintiff has a direct business contract with a principal defendant. Moreover, the relationship dates back not only to prior to final approval of the settlement, but to months prior to the announcement of the submission to the judge of the preliminary settlement.

Obviously the settlement parties should make a full disclosure to the court without delay. I won’t hold my breath. (The deadline for filing objections to the settlement is July 15. The final “fairness hearing” is slated for July 28.)

You might think the brain surgeons at ASJA would have the discretion to recognize this blatant conflict of interest and breach of process. But then, you wouldn’t fully appreciate the mysterious culture of “the nation's leading organization of independent nonfiction writers,” whose members can be admitted only after meeting “exacting standards of professional achievement.”


Tuesday, June 21, 2005

The Crimes of Thomson/Gale/Information Access Company (Part 3 and Final)

(‘Introducing the Crimes of Thomson/Gale/Information AccessCompany’

(‘The Crimes of Thomson/Gale/Information Access Company’
[Part 1]

(‘The Crimes of Thomson/Gale/Information Access Company’
[Part 2]

At the start of this objection project -- following three years on the staff of the National Writers Union, three and a half years as a litigation consultant, and five years back in the lucrative field of freelance writing (where I still ply my trade today) -- I returned to my old avocation of browsing online databases to isolate infringements. The full text of my June 1988 Washington Monthly article (whose copyright I’d registered in 1999) had long been removed from Thomson/Gale’s InfoTrac product at my public library. I’d assumed that it had been expunged altogether. Silly me.

In fact, this work was newly available via HighBeam and FindArticles. Moreover, as I didn’t discover until I bebopped over to the campus library at the University of California, this work had continued to be oldly available, all through the years, via LexisNexis. According to my LexisNexis printout, my 1988 Washington Monthly article was supplied via a product called ASAP. The notice said: “Copyright 1988 Information Access Company, a Thomson Corporation Company” and“Copyright 1988 Washington Monthly Company.” At the very bottom of the printout was this verbiage: “LOAD-DATE: August 11, 1995."

August eleven nineteen ninety-five? Seven years after publication? Geez, my first correspondence with Robert Howells, president of IAC, had been on September 9, 1994. My last round of correspondence with the company had begun on August 17, 1995. It had concluded with an exchange of faxes with Howell’s successor, Morris Goldstein, on August 28, 1995.

Folks, the word “infringement” has a specific meaning. There should not be a shadow of a doubt in anyone’s mind that Thomson is an explicit, blatant, systematic, willful infringer. The word “crime” is, simultaneously, stronger and vaguer. There is not a shadow of a doubt in my mind that Thomson has behaved like a corporate criminal. And that this poor excuse for a preliminary settlement simply aids and abets its criminality.

Irv Muchnick

Monday, June 20, 2005

The Crimes of Thomson/Gale/Information Access Company (Part 2)

(‘Introducing the Crimes of Thomson/Gale/Information Access Company’

(‘The Crimes of Thomson/Gale/Information Access Company’
[Part 1]

The National Writers Union had its first contacts with Information Access Company -- predecessor of copyright class action defendant Gale Group, owned by Canada’s Thomson Corporation -- in 1994. But those weren’t the last.

In response to our complaint letters to IAC’s Christine Gordon and Robert Howells and to Thomson’s W. Michael Brown, the president and CEO of the Thomson Business Information division, Jerrell W. Shelton, early in 1995 sent identical letters to cited NWU members stating that Magazine Index articles had “erroneously escaped” via the Internet and that “action was taken to remedy” the problem.

Magazine Index was a product marketed by IAC in conjunction with the CARL Corporation of Denver, a for-profit spinoff of the Colorado Alliance of Research Libraries. After we confronted first IAC and then CARL, Magazine Index was indeed shut down. Meanwhile, CARL negotiated with the NWU for an authors’ royalty system for CARL’s own parallel product, the UnCover article delivery service. This led to the creation of the NWU’s collective-licensing agency, Publication Rights Clearinghouse.

But IAC went right on infringing. Our investigation showed that IAC’s Magazine ASAP product not only still copied, distributed, and sold the works of writers of the NWU’s “Operation Magazine Index” campaign. IAC also continued to add new articles by these same rights holders. NWU president Jonathan Tasini complained about this in a letter to Thomson’s Shelton on January 13, 1995. (Tasini noted that 77 writers had now signed on to our campaign, up from the 46 and 66 of previous correspondence.) In his February 2 response Shelton stated: “We remain prepared to support our providers with whatever information we can (including transaction-based data) in order for them to abide by their financial obligations to their authors” (parentheses in original).

On August 17, 1995, on the advice of the publisher of The Washington Monthly, I faxed Sally Roberts Han of IAC’s copyright and licensing department. According to the magazine, Han had informed it, “very specifically, that at this time IAC does not have the ability to track the sale of individual articles.” I told Han, however, that the NWU had acquired copies of an IAC royalty statement contradicting this assertion.

The royalty statement was for Harper’s magazine and it was dated 8/29/1994. IAC royalties to the magazine for the period January – June 1994 totaled $3,864 and were broken down into three categories: $154.16 for “online,” $3,205.60 for “microform,” and $504.77 for “electronic means.” The “electronic means” category was further broken down into 103 “hits” of individual Harper’s articles, at $4.90 per “hit,” via IAC’s library-based InfoTrac retrieval system.

Again via fax, I shared this document with Morris Goldstein, who had succeeded Robert Howells as IAC’s chief executive. Nothing came of the exchange.

As popular newsstand magazines go, Harper’s is an intellectual one with a modest audience. Yet for a single semiannual period in 1994, when the Internet was in its infancy as a platform for widespread access by home computer users, there was incontrovertible evidence of $504.77 in transaction-based royalties from IAC to Harper’s. IAC lied about and obfuscated these facts.

Can you imagine what the universe of revenues has been since 1994 on just these kinds of transactions, for just IAC and Gale Group and Thomson, for all of the many thousands of publications whose full texts they jointly redistribute, with or without the rights to do so, and including many, many magazines and newspapers that are far better known, more widely read, and more frequently accessed than Harper’s?

Then can you imagine multiplying that figure by all of the defendants in the consolidated class action settlement? Then can you imagine adding in not just restitution for these past infringements but also the waiving of all future electronic rights for articles first published in all of these publications, in perpetuity?

Then can you begin to understand why the $10-to-$18-million preliminary settlement is maybe just a little bit ... off the mark? And why -- no matter how the National Writers Union, the Authors Guild, and the American Society of Journalists and Authors, and their assorted minions attempt to justify it -- a meaningful future rights regime for independent creators depends on objecting to this settlement before it's too late?

Irv Muchnick

Saturday, June 18, 2005

The Crimes of Thomson/Gale/Information Access Company (Part 1)

(‘Introducing the Crimes of Thomson/Gale/Information Access Company’

In 1994 I went online for the first time and discovered that previously published articles of mine were getting knocked off by for-profit databases. One was a product called Magazine Index, marketed by Information Access Company.

I checked the names of my hundreds of fellow members of the National Writers Union’s Bay Area Local against Magazine Index and found that scores of them -- nearly a third of the membership -- were in the same boat. Thus was born an NWU campaign, “Operation Magazine Index.” Many well-known Bay Area authors signed on, including Isabel Allende, Alice Walker, Ben Bagdikian, Todd Gitlin -- and Nicholson Baker. On October 18, 1994, Nick published an op-ed piece in The New York Times, “Infohighwaymen,” which attracted the attention of writers and information professionals around the world.

That same morning, Information Access Company copyright and licensing director Christine Gordon called me from her office in Foster City, California. (I live in Berkeley.) Several weeks earlier the writers union had sent IAC president Robert Howells a letter, on behalf of 46 infringed members, asking for “meaningful dialogue that will result in an equitable resolution of relevant outstanding issues concerning the rights and obligations of publishers, database providers, end users, and creators alike.” In response Christine Gordon had initiated a telephone and email exchange with me. On October 18 we arranged for a delegation from the writers union to tour the IAC offices and talk about copyright issues.

Under the mistaken impression that this meeting had been facilitated by Baker’s Times piece, the NWU exulted. But this turned out to be a misunderstanding. In fact, Gordon for some reason wasn't yet aware of the article. The next day she called me back and canceled the union’s visit, and my exchange with her got into our more specific claims of IAC’s systematic infringement of our members’ works. A lawyer would say that we were putting this prospective defendant on “constructive notice.”

In the fall of 1994 IAC’s owner, Ziff-Davis, sold IAC for $465 million to Canada’s Thomson Corporation, owner of the Toronto Globe and Mail and other media properties. On December 13, writers union president Jonathan Tasini wrote a follow-up letter to Thomson Corporation president W. Michael Brown. By now Operation Magazine Index, which was expanding beyond the Bay Area Local, had 66 co-signers.

The only response from the company was to "block" the articles of these 66 authors from being sold on Magazine Index. We were never informed of this; we discovered the move in the course of our continuing investigations. Libraries and information consumers were never informed either. In future years, after writers won Tasini v. New York Times in the Supreme Court, publishers would spin their version of Armageddon -- the precious "historical record" was being violated, filled with holes like so much Swiss cheese, and it was all the fault of these pesky writers. In truth the historical record had been Swiss cheese for years. It had been so ever since the first authors complained about getting ripped off and, instead of entering into reasonable negotiations with them, the database industry adopted the tactic of furtively expunging them to mitigate legal exposure. The attitude of the industry was and is: Both freelancers and the public be damned.

Irv Muchnick

Introducing 'The Crimes of Thomson/Gale/Information Access Company'

We have a number of co-objectors and more will follow. Many of you pondering whether to join the objection list by the July 15 deadline understandably feel a bit swamped by all the technical details about the decades-long infringements of your works and what might be the proper, proportionate, and above all most effective response.

To help you sort things out, your humble blogger introduces a multi-part series entitled “The Crimes of Thomson/Gale/Information Access Company.” The Canada-based Thomson Corporation is one of the principal defendants trying to buy off the entire freelance writing community with a piddling settlement of $10-to-$18-million, accompanied by a release of all future claims and no royalty system to ensure that independent creators will have a dignified share of the large and inevitably growing commerce of cyberspace.

“The Crimes of Thomson/Gale/Information Access Company,” in my opinion, tells a simple, straightforward, back-to-front story. Before starting it, I advise you to review two May 22 posts:

* “Thomson Gale Quietly Rolls Out New Service” ( points you to an April 4 report by Information Today's NewsBreaks about the recent stealth start-up of a new premium content service. This subscription service, called Goliath, goes for a cool $349.95 a month. To give you a little perspective (and if I’ve moved all the decimal points around correctly), 1,000 subscribers to just the Great Goliath, for five years, would amount to almost $21 million in gross revenues -- in other words, well over the total ceiling of this one-time settlement fund will be wiped out in a short period by a single product of a single defendant.

* “Thomson/Gale to Infringed Writers: Drop Dead” ( points you to an online "Important Notice to Freelancers" by the company’s senior vice president for copyright and licensing. In the notice, this executive, Christine M. Gordon, basically blows all of us off.

Shortly I’ll post “The Crimes of Thomson/Gale/Information Access Company (Part 1).” This will take us to a time before time -- all the way back to 1994. I was a member of the National Writers Union’s Bay Area Local and the volunteer organizer of a campaign called “Operation Magazine Index.” Bestselling author Nicholson Baker, a charter participant in that campaign, wrote a New York Times op-ed article, “Infohighwaymen” ( And Christine Gordon worked out of the Foster City, California, office of Thomson/Gale’s predecessor, Information Access Company.

Read and enjoy this series. Then consider joining me in doing something about it.

Irv Muchnick

Thursday, June 16, 2005

OK, How About $600 Million?

The closer you look at the settlement figure of $10 million to $18 million, the sillier it looks.

As noted some time ago, the American Society of Journalists and Authors in 2001 publicized a National Writers Union study stating that damages to authors for database infringement amounted to “anywhere from $2.5 billion to $600 billion.” (See

Remember, this was after ASJA, the NWU, and the Authors Guild had consolidated several class actions in the wake of the Supreme Court’s Tasini v. New York Times ruling. Remember, too, that the plaintiffs never put any pressure on the defendants by following up the complaint with a motion for an injunction. Indeed, the defendants never even formally answered the complaint. After years of jawboning and mediation, the parties this spring announced their number. Presto! Ten to eighteen mil.

And now I come across the following article from the July 2001 issue of the newsletter of the trade group Text and Academic Authors. See

NWU: Publisher liability $600 million

NEW YORK, July 1, 2001 -- The National Writers Union estimates the publishing industry's potential liability for the unauthorized use of freelance writers' material on electronic databases and CD-ROMs could be as much as $600 million. The union based on the figure on a survey of 25,000 freelance writers. The union's president, Jonathan Tasini, was the lead plaintiff in challenging the publisher presumption that authors had no rights to material being recycled for digital sale. Now that the U.S. Supreme Court has found for the authors, the task for publishers is to figure out how to compensate authors.


$10-to-$18-million … $2.5-to-$600-billion … $600 million

What is this -- an affirmative action program for laid-off employees of network election day exit polls?

Wednesday, June 15, 2005

'We Are Mystified Why the Americans Settled For This'

The Periodical Writers Association of Canada has come through with a strong statement advising Canadian freelancers to opt out of the copyright class action settlement. The money paragraph from PWAC president Gordon Graham:

"Even measured in raw dollars [$10-to-$18 million], this American settlement seems like a poor deal for freelancers. We are mystified why the American freelancers settled for what appears to be such a bad deal, but that is their business. It shouldn't be forced upon Canadians."

The full news release can be viewed at PWAC's home page,

Tuesday, June 14, 2005

The Brits, Like the Canadians, Get It

The new issue of London Freelance, the publication of the London Freelance Branch of Britain’s National Union of Journalists, has a nice piece about our opposition to the copyright class action settlement. Go to:

“$18M for freelances? Not enough, say some”

A few small corrections and additions:

* The final “fairness hearing” before Judge Daniels is July 28, not July 18.

* Judge Daniels will not be hearing a motion to dismiss the settlement. Rather, he’ll be considering the parties’ motion for final approval of the settlement, along with our objections.

* The deadline for objections or “opting out” is July 15. Anyone who is considering objections should contact me at (And of course, all important documents are still up at our website,

Friday, June 10, 2005

Writers' Rights Advocacy, ASJA Style

On May 19 Erik Sherman, who I understand is the "contracts chair" of the American Society of Journalists and Authors, sent me a a two-paragraph, 142-word email critiquing one of my blog posts. I replied, said I would like to publish our exchange at the blog, and asked his permission to use his name. In the alternative, I said, I would post the exchange without using his name.

Sherman said I could not have such permission. He said he had sent the email to me “mistakenly.”

I posted the exchange, deleting his name.

Sherman then pitched a fit to me via email and added comments to the post, identifying himself as the correspondent in the exchange and accusing me of copyright infringement.

Today I received a notice from Blogger Support telling me that a complaint had been received and that unless I filed a counter-notification pursuant to the Digital Millennium Copyright Act, blah blah blah, the post would be removed.

The claim of copyright infringement is too absurd to waste time on. But I’ve removed the post, “A Thoughtful Exchange With a Reader,” which used to be at

Much more valuable than Erik Sherman’s misinformed ramblings is this illustration of what evidently passes for writers’ rights advocacy at ASJA.


Our project to file objections to the copyright class action settlement is pleased to announce the addition of our first two co-objectors.

All freelance authors interested in this effort are invited to contact me at The deadline for filing objections (or opting out) is July 15.

Below is an information statement by our excellent attorney, Charles Chalmers.



I am 64 years old and have practiced law since 1971. I am a graduate of Stanford Law School. My career has been devoted to civil, primarily business, litigation. I was a partner of several law firms. The areas of law in which I practiced included contracts, business torts such as fraud, intellectual property (copyrights, patents, trade secrets and trademarks), securities and investments and anti-trust.

Several years ago I experienced firsthand class action abuse. This led me to become interested in the subject. I studied it, and began to look for opportunities to represent class members when settlements were being proposed. I have now participated in eight cases. In six of these my efforts produced favorable changes to the settlement or a reduction of the attorneys’ fees claimed by the class counsel (which are often paid out of the class compensation). In one of the two where I failed to achieve anything, I am still pursuing it, and recently filed a petition for certiorari in the U.S. Supreme Court regarding that case.

Class action abuse is commonly thought of as excessive attorneys’ fees. While that is certainly a problem, my experience shows that an equal or greater problem is seriously inadequate settlements. Class action attorneys often sacrifice the class interests in order to obtain their compensation. While courts are supposed to provide protection against bad, or “sell-out,” settlements, they are generally too busy to do the investigation to discover the problems. And sometimes they don’t really want to “see” the problems, because the settlement is going to get a big, time consuming case off their docket.

Once I became involved in this work I discovered the existence of “professional objectors.” These are a group of lawyers who file objections to settlements, but their objections are usually superficial or boiler-plate, and their intention is simply to get paid-off to go away. And they often are paid off. These “professional objectors” have discredited the whole process of objecting. They have incurred the irritation of judges, and they have led to all objectors’ counsel being viewed with suspicion and distrust. I do everything I can to be sure that my work contradicts this view of objecting. Many higher courts have recognized that, when done diligently, objecting can help the courts charged with protecting the class members.

I try to do my work as thoroughly as when I represented companies which had the resources to properly protect their interests. I work alone and am often opposing large groups of plaintiff and defendant lawyers who join together to defend the settlement, so I generally can not equal their “fire power.” But I do my research and factual investigation as diligently as possible, so that a court will hopefully take my presentations seriously. When I feel the court has made a mistake, I am willing to take the matter on appeal.

Charles D. Chalmers
20 Sunnyside Ave., Ste. A#199
Mill Valley, CA 94941
415 860-8134

Thursday, June 09, 2005

UnSettlement's Crack 'Response Team'

You'll recall that a few days ago I sent lead class co-counsel A.J. De Bartolomeo an email -- also posted to the comment page of the settlement website and to this blog ( -- questioning obvious defects in the system for determining whether an author is a member of the class.

A.J. didn't respond, but Melissa De Bartolomeo (presumably A.J.'s assistant) did. Melissa De Bartolomeo wrote back, in part, "Ms. De Bartolomeo is out of the office until Thursday, but will be picking up emails at the end of the day. Ms. De Bartolomeo, or someone else from the response team will respond to your questions within 24-72 hours."

After the 72 hours lapsed, I followed up with A.J. She then emailed my attorney, Charles Chalmers, to say that she would not communicate directly with me.

What happened at the website in the interim is telling. The claim form section of the site no longer provides what I'd characterized as inadequate tools for evaluating a potential class member’s claims eligibility: willy-nilly links to NewsLibrary (now known as NewsBank, which requires registration), LexisNexis (the LexisNexis By Credit Card service, which requires registration and the supplying of credit card information), Thomson Dialog (which turned out to be just a link to a news release about the expansion of Dialog NewsRoom), and LookSmart (better known as FindArticles to those familiar with a campaign by associational plaintiff National Writers Union to stop this new article delivery service’s ongoing systematic infringement).

The removal of inadequate tools, of course, is commendable. But it's not a good thing that the site now provides no tools at all. At this point authors are simply advised to “determine the number of Subject Works and dates that have appeared in publications, as best you can.”


Wednesday, June 08, 2005

UnSettlement Administrator: Don't Worry Your Pretty Little Head

Here’s some of the feedback we’re getting from writers trying to communicate with the UnSettlement claims administrator:

· Question: How can I check on articles from publishers/databases that are not listed? Boilerplate reply: Simply supply the info they request. Make it as detailed as possible (publication, date, subject, title). It’s not the author’s responsibility to establish when and on which databases articles were used. This will be established by the Claims Administrator using the information from the claim form.

· Another correspondent advises: “I’m doing nothing online. I had them send me a hard copy of the form.” This writer suggests that class members flood the administrator with paperwork of examples showing, for instance, that publishers have offered more for so-called Category C infringements ($5 to $60 under the UnSettlement) than are provided here for Category A’s (infringements of timely registered copyrights, which the UnSettlement caps at $1,500).

'Canadian Writers Told to Pass on Settlement’

From the June 5 issue of the Winnepeg Sun comes one more piece of evidence that the $10-to-$18-million UnSettlement is an international pig in a poke:


· Heather Robertson, the Canadian writer who has spearheaded suits north of the border that are almost as old as Tasini v. New York Times, says, “The U.S. courts have no business telling us what to do. Apart from that there’s no fault, there’s no admission of any wrongdoing on the part of the publishers.”

· The notice (including ads in Canadian newspapers) notes that Canadians can opt out, “but Robertson says the best course is to do nothing and the U.S. jurisdiction will be challenged in an Ontario court Oct. 31.”

· Robertson again: “The amount of the settlement is absurd. Maximum $18 million (US)? My Robertson vs. Thomson class action on behalf of an estimated 10,000 Canadian writers is $100 million.”

· Reporter Scott Edmonds: “Even the new president of the National Writers Union south of the border doesn’t sound overly enthusiastic about the deal – and his group is one of the plaintiffs that agreed to it. ‘I would have handled it very differently but, regardless of that, this is the way it has been resolved,’ says Gerard Colby.”

Monday, June 06, 2005

What I'll Certify Is That You Won't Tell Me Whether I'm a Class Member

Earlier today I posted my email to lead plaintiffs' co-counsel A.J. De Bartolomeo asking her to clarify some of the gobbledygook at the website. (That post is at

Soul of discretion that I am, I didn't complain to A.J. about a most annoying wrinkle at the comment submission page of the settlement site. Before your question can be transmitted, you must check the box affirming this text: "By checking the 'I Agree' box, I hereby certify that I am a class member."

'Course, that begs the question: How does one determine that he/she is a class member?

Ladies and gentlemen, this preliminary settlement is a bad joke on freelance writers and the public. If you're interested in joining the objection effort, feel free to contact me directly at

Sunday, June 05, 2005

Comment at Official Settlement Site

Date: Sun, 5 Jun 2005 14:21:38 -0700 (PDT)
From: "Irvin Muchnick"
Subject: Comment on settlement procedures
To: "A.J. De Bartolomeo"

Dear A.J.:

I am posting this message, as well as your reply, at my blog. I also am submitting this to the "comments" page of the website and expect it to be included in the package forwarded to Judge Daniels. As a member of the class myself, I question the failure of the notice and claims administration website to offer a clear and reliable method for an author to determine whether he or she is a class member, and to what extent.

The "List of Publications" page states: "Please be advised that you should file a claim even if the publication you wrote for is not on the list." This makes no sense. If an author has a claim, an author has a claim; if not, not.

The claim form section of the site advises prospective class members to make a determination "as best you can.” The tools provided are inadequate. There is no claims database, merely a set of suggestions of pointers to various other databases, which in turn include both class-eligible and class-ineligible works. The NewsLibrary link requires separate registration. The Lexis/Nexis link requires separate registration; further, that registration requires submission of credit card information. (Though no actual charges are promised unless a full-text article is ordered, the procedure is both cumbersome and intrusive, without providing sufficient information as to whether the searched works are in fact Subject Works for the purposes of the settlement.) The Thomson Dialog link is simply to a press release for a product launched on April 11 of this year, called Dialog NewsRoom. I question having a link at the settlement website to a document with no utility for the purpose at hand. In addition, I question not only the appropriateness in this forum of an advertisement forDialog NewsRoom, but also the very launch of that product before final approval of the settlement.

In my opinion, the claims administrator has a more pro-active, affirmative, fiduciary obligation to assist class members and would-be class members in conducting investigations, and in making evaluations of class eligibility, than is exhibited here. The alternative is to underscore the same atmosphere of confusion and chaos which has plagued the industry for the last decade or more, and which continues to expose the deep and fatal flaws in the preliminary settlement.

Thank you for your prompt attention to this query.

Irvin Muchnick