Wednesday, April 05, 2006

Any Freelancer Who Is Not Outraged Is Not Paying Attention

In 2002 the defendants in the copyright class action filed a mediation brief. (The document was produced for the objectors just before the September 2005 "fairness hearing" on approval of the settlement.) "Only a tiny percentage of freelance authors -- on the order of 0.08% or fewer -- ever register the copyrights in their periodical contributions," the brief states. If there were 200,000 potentially eligible freelancers, "the data shows that only 160 authors would have registered."

The defendants then proceed to tell the lawyers for the 23 individual named plaintiffs -- all of whom belong to that 160-author subset -- that they would fight them tooth and nail over a long list of issues. The defendants are interested, however, in "a global resolution of this matter."

The point is: The named plaintiffs were never doing the unregistered freelancers a favor. It was the other way around.

Why? The plaintiffs could not get their nice Category A and B awards, and their special $2,000 fees for being class representatives -- and their mouthpieces could not collect their $4.4 million in fees -- without wrapping the unregistereds into the deal.

The record of the "negotiations" makes it clear that it was really the "associational plaintiff" organizations -- the Authors Guild, the American Society of Journalists and Authors, and the National Writers Union -- that called the shots. To the extent these associations have freelance writers as members, the vast, vast majority of them have unregistered articles.

In the mediation brief the defendants attack the legitimacy of the writers' organizations to represent anyone. Yet that changed once the associations were willing to deal -- and deal badly -- on behalf of the unregistereds.

Take a close look at the Category C reduction provision of the settlement -- the terms under which the claim awards for unregistereds can go down, even to zero, if they turn out to overload the $10-million-to-$18-million settlement fund. What this means is that these sterling freelancer organizations thought that it was OK for C awards, which were already super-low, to be abandoned before the A's and B's would be touched. They were saying to their members: Give up your claims, grant a perpetual license to your works, and possibly don't even get anything in return.

And, again, remember that the A's and the B's couldn't pull off this deal in the first place without the C's.

Now let's look at the difference between B and C awards. The table below -- also found on page 12 of the objectors' appellate brief, which was filed this week and is viewable at -- provides a good shorthand:

Price Paid for Article

B Gets % of price

C Gets











$150 12.5%



$162.50 12.5%



$187.50 12.5%



$225 12.5%



$250 12.5%



$312.50 12.5%



$337.50 12.5%



$362.50 12.5%



$500 12.5%



$625 12.5%


This scheme makes no sense -- none whatever -- by any explanation other than that the registereds sold out the unregistereds. It's real plain. The C's, who were the key to this deal, got screwed by their so-called representatives.


Anonymous Anonymous said...

Dear Irv:

Technically, under law, those who fail to register their copyrights have no legal standing at all. Registration is a prerequistie for filing a lawsuit, and if you don't do that, the infringers have no good reason to negotiate with you. So why did they bother with this? Because there is no time limit on when registration can be made. And electronic databases, by their nature, are a continuing infringement. Once you have registered, the clock on the statute of limitations might start anew. However, you cannot be bound legally by the actions of third parties with whom you had no agreement, except by class action. Which is why the class action actually favors the defendants and not the rest of us.

Francis Hamit

10:44 AM  
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