Wednesday, July 26, 2006

Dear Martha Russis of the Incredible Shrinking Category C Claimant Declarants

Folks, I’ve just posted all 11 declarations filed last September by writers who supported the settlement and cited the thousands of dollars they each expected to receive upon approval. Their expectations have been, shall we say, called into question by mounting indications that the puny settlement fund might be overloaded with claims and that a provision by which deduction or elimination of C claims, for unregistered-copyrighted articles, will be triggered.

Of the 11 declarations, none has stronger language than that of Martha Russis of Glenview, Illinois. (Again, read it for yourself at http://muchnick.net/MarthaRussis.pdf.) In part, perhaps, this is because her anticipated windfall includes not only C claims, but also A and B (registered) claims, for a total of $110,000. Not a bad day’s -- or decade’s -- work for a freelance writer. Whatever the incentive, economic or otherwise, Russis was “disgusted and aggravated by this objector to the settlement.”

En garde, Martha!

***************

IN THE COURT OF PUBLIC OPINION

DECLARATION OF IRVIN MUCHNICK IN OPPOSITION TO FINAL SETTLEMENT APPROVAL

I, Irvin Muchnick, declare as follows:

1. I am a freelance writer and class member in In re Literary Works In Electronic Databases Copyright Litigation, MDL 1379. I submit this declaration in opposition to Plaintiffs’ motion for final approval of the proposed class action settlement in this lawsuit. I have personal knowledge of the facts herein and, if called on to do so, could and would testify competently thereto.

2. I have been selling publication rights to my literary works as a freelance author since 1972.

3. I have been waiting a long time for a settlement in this case since I became an activist for the issue of writers’ rights in new technologies in 1994. I organized the National Writers Union’s Operation Magazine Index campaign. That campaign produced massive evidence of willful and systematic infringement, none of which is acknowledged in the record by the plaintiffs’ lawyers in this case; in fact, co-lead counsel A.J. De Bartolomeo swore under oath to the court that there is “no” such evidence. From 1994 to 1997 I was assistant director of the National Writers Union and founding administrator of its agency, Publication Rights Clearinghouse. From 1997 to 2000 I was a consultant for Robins, Kaplan, Miller & Ciresi, which extracted a $7.25 million settlement for writers from a tiny fax-delivery service called UnCover. That was believed to be the first such use of the class-action vehicle in the history of American jurisprudence. From 2000 to 2001 I was a consultant for Hosie Frost Large & McArthur, which launched the first of the class actions later consolidated into this settlement. Hosie Frost and its co-counsel, the now-defunct Brobeck, Phleger & Harrison, subsequently brought in the National Writers Union as an “associational plaintiff.”

4. In my memoir “Crass Action: Confessions of an Internet Avenger” (viewable at http://crassaction.muchnick.net), I disclose the consulting fees I received during this three-and-a-half year period -- $50 an hour from Robins, Kaplan and $75 an hour from Hosie Frost -- and estimate that they “equaled the cost of a couple of paralegals standing around staring at boxes of documents.”

5. After my contract with Robins expired, the UnCover settlement team did a lousy job with class notice. I personally stepped in, without compensation, and contacted more than a dozen writers whose claims were missed by a technical glitch in the claims database, and when half or more them responded, I helped them submit and receive $30,000 claims. Still later, long after the case was closed, and with the help of San Francisco attorney Roy Gordet and Oakland’s First Amendment Project, I litigated to unseal records about the shoddy performance of the settlement team and the $500,000 in fees for claims administration collected by the now-disgraced Arthur Andersen accounting firm. For details, see my piece “Arthur Andersen and Me” at http://muchnick.net/ARTHURANDERSEN.html.

6. See also my declarations in the record of this case at http://muchnick.net/Declaration.pdf and http://muchnick.net/Muchnick.pdf.

7. I am the father of two sons and two daughters with child-rearing costs. The main benefit to me of an improved settlement in this case is that my dear wife of 20 years might stop reminding me of what a worthless piece of garbage I am.

8. The proposed settlement is unfair, inadequate, unreasonable, and a disgrace. If it goes through in its present form, the named plaintiffs, the “associational plaintiff” writers’ organizations, and the declarants in support of the settlement -- all of whose best defense is naivete -- will live in infamy. The plaintiffs’ lawyers, I suspect, won’t lose too much sleep.

I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. Executed July 26, 2006, at Berkeley, California.

Irvin Muchnick

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