Thursday, July 27, 2006

Martha Russis: A Clarification

On further review, I think one of the statements in my previous post about Martha Russis is mistaken. I'll go ahead and revise the post, but I'm also putting up this separate item for those of you who might have read our promotional email burst, or the original blog.

This clarification is also an opportunity to restate a point we've made in several contexts: In every key area of the UnSettlement, the information to resolve threshold ambiguities is the exclusive property of the settlement parties -- or, in this case, the defendants who have been doing all the infringing for decades, and even as we speak continue unabated with their infringement.

OK, let's try to explain.

Russis' copyright registrations were filed in 1998-99. That means that infringements of those 600+ works are at least Category B's. Some, perhaps many or all, are converted to Category A's by virtue of the settlement amendment incorporating Amazon and HighBeam.

However, it was not correct for me to state that these are "pure A's," because I don't know. The settlement parties appear to have codified what I think is a perverse "first infringement theory" of the defendants. That means -- again, I think -- that the key to whether something is a Category A or a Category B is when works were infringed for the first time.

Example: I wrote an article for The Washington Monthly in 1988 that was infringed, most likely, from day one. I complained and it was removed by Information Access Company (now Thomson Gale) from some but not all infringing products. I registered the copyright in 1999. I then found what I thought were "new" infringements. But the defendants might say that Thomson Gale had "already" infringed it the first time, so its new appearance on even a Thomson Gale-licensed product to another company is old news.

Or some such b.s. Suffice to say that Martha Russis, with her hundreds of 1998-99 registrations, was in a much stronger position than the average class member, which makes her declaration's hostility toward the objectors all the more bewildering. Or, as the case may be, all the more predictable.


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