Wednesday, December 13, 2006

Oral Argument Date Is Set ... NOT!

False statements by the UnSettlement parties are nothing new, but their latest misinformation about the progress of the objectors' appeal before the Second Circuit Court of Appeals is not just wrong. To paraphrase what Brooklyn Dodgers pitcher Joe Black was supposed to have said once to teammate Jackie Robinson, it's loud wrong.

According to the website, 'The court of appeals has set the date for oral argument for the week of January 22, 2007." Until just days ago, the same site was saying that oral argument "would be" on December 4, 2006. Both reports were -- and are -- incorrect, and incomprehensibly so.

There was never a December 4 date. In late October, both the appellants and the appellees informed the court that the week of January 22 would work for everyone. The court, however, never scheduled it or offered any indication about that date. On November 8, both sides learned that a date during the week of January 29 had been proposed, but I understand that that week, too, is now off and there still is no date set.

This is non-substantive news. But it's an opportunity for the entire crack staff of Freelance Rights Blog LLP to wish our readers a happy and healthy holiday season.

It's also a reminder that, through these turns of the wheels of litigation, the undisputed, slam-dunk, systematic infringement of freelance writers' works continues, expands, and daily produces dozens, hundreds, thousands, or millions of new "facts on the ground." This phenomenon began decades ago, proceeded through the resolution of the Supreme Court's Tasini case, shifted into another gear with the announcement of the tentative settlement in March 2005, and since has gone into overdrive.

As we've said repeatedly for nearly two years, we objectors remain confident that our appeal will succeed. The License by Default provision of the UnSettlement, in particular, is so constitutionally untenable that it's very difficult to believe it will stand (though your humble blogger does not presume to predict anything).

But there's only one thing that would really halt the march of piracy by these infringers, in cahoots with the writers' organizations that endorsed the UnSettlement. That is action by a huge number of freelancers to register the copyrights for their past works. That way, when we prevail in court, the Damoclean sword hanging over the defendants will be sharp rather than toothless.