COURT ASKED TO STRIKE ‘CORRECTED’ BRIEFS IN AUTHORS’
COPYRIGHT SETTLEMENT APPEAL; ALTERNATIVE WOULD BE
MISCARRIAGE OF JUSTICE, WRITER-OBJECTORS SAY
NEW YORK, August 1, 2006 – Objectors to a copyright class action settlement for freelance authors today asked the Second Circuit Court of Appeals not to allow electronic database operators, newspaper and magazine publishers, 22 named plaintiffs and three writers’ organizations to file “corrected” briefs omitting information that indicates they misled the courts, as well as the class of freelancers around the world, about a key aspect of the settlement.
In a “motion to strike,” the objectors said that without appropriate action “there will be a miscarriage of justice” in consideration of their appeal of last year’s approval in district court of a settlement that would total $10 million to $18 million (including attorneys’ fees and the costs of mediation, class notice and claims administration).
Attorney Charles D. Chalmers filed the motion on behalf of Irvin Muchnick and nine other writers. The objectors’ brief and supporting documentation are viewable at http://muchnick.net/StrikePart1.pdf, http://muchnick.net/StrikePart2.pdf, and http://muchnick.net/StrikeMisc.pdf. (The papers are divided into three files due to technical scanning problems. In the near future they will be combined into a single clean file and available for download at http://muchnick.net/MotionToStrike.pdf.)
The history and ongoing news of the objections are published at Muchnick’s blog, http://freelancerights.blogspot.com.
The objectors challenge many aspects of the settlement, but the current motion focuses on an admission by the settlement parties that they were mistaken in telling the appellate court, in their original briefs, that “prima facie valid claims” in the case totaled $10.76 million. Due to a technical point of the claims administration process, which is explained in the Chalmers brief and accompanying declaration, that figure actually projects to be considerably higher and, indeed, is likely to be in excess of $11.8 million. If the total claims value does exceed $11.8 million, then a provision of the settlement will be triggered whereby the claim awards of holders of unregistered copyrights are reduced, possibly even to zero.
Both sides of the settlement have stated that unregistered copyrights constitute more than 99% of the potential claims in this case. Throughout the litigation of the objections, and in their original appellate briefs, the electronic and print publishers and the authors’ groups (the Authors Guild, the American Society of Journalists and Authors, and the National Writers Union) had repeatedly dismissed the objectors’ arguments about the possibility of such a reduction as “absurd.” Now, in the absence of the striking of “corrected” briefs, undisputed evidence to the contrary would be suppressed.
“The facts, and the opposition’s less-than-credible explanation of their error, demonstrate that the parties misled the district court, intentionally or mistakenly,” Muchnick said. “These admissions should be considered on the appeal. They raise the specter of bad faith by the appellees, who refuse to dispel this cloud on the judicial process with a candid account.”
Muchnick added: “On behalf of freelance authors everywhere – even the many who have a hard time understanding exactly what is going on – I want to thank attorney Charles Chalmers for his brilliant work. In desperate ad hominem attacks, the settlement parties have attempted to characterize Mr. Chalmers as an ethically challenged ‘professional objector’ who extorts fees. In light of their own malfeasance here, those smears are ironic. In fact, Mr. Chalmers represents a group of ‘beneficial objectors’ who are trying to undo, before it’s too late, the worst sellout in the history of writers’ rights.”
Irvin Muchnick has written hundreds of articles for many major magazines and newspapers. He also is author of the forthcoming book Wrestling Babylon: Piledriving Tales of Drugs, Sex, Death, and Scandal (ECW Press). From 1994 to 1997 Muchnick was assistant director of the National Writers Union and founding administrator of the NWU’s collective licensing agency, Publication Rights Clearinghouse. From 1997 to 2001 he was a litigation consultant and helped extract a $7.25 million settlement from the now-defunct UnCover article delivery service in Ryan v. CARL, which is believed to be the only successful use of the class-action vehicle in a copyright case on behalf of authors.
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