Tuesday, May 22, 2007

Oh, By the Way, the Infringements Continue

As we await the Second Circuit Court of Appeals ruling on the objectors' challenge of the copyright class action settlement, I get variations on two common, and related, questions.

First question: "I submitted paperwork to the claims administrator asking for my works to be taken down in return for reduced claim awards. That was in the summer of 2005. Yet here we are, nearly two years later, and my articles are still being resold without my permission on the defendants' database products. Why?"

The reason is that, during the pendency of the appeal, "business as usual" prevails. The blatant infringers of the defense group are proceeding just as they did when the cases were originally filed years ago, just as they did throughout the settlement negotiations, and just as they will continue to do until somebody stops them. They are pirating yours and others' works, again and again and again, and they are even adding to the universe of infringements, and to the number of products and applications by which they infringe, each and every hour of each and every day.

Which leads to the second question: "Why isn't anybody seeking an injunction to stop these knockoffs?"

The answer is that opt-outers can (and perhaps one day soon one of them will) seek injunctive relief. However, the rest of us are part of the technically "pending" settlement. (We objectors, of course, are also inside the settlement, for the express purpose of getting it either improved or scuttled.)

The outrage of unabated infringements, a full six years after the U.S. Supreme Court ruling in Tasini v. Times, is one of the worst of the many black marks against "our" authors' organizations in this shabby affair.

As a matter of law, the so-called associational plaintiffs -- the Authors Guild, the American Society of Journalists and Authors, and the National Writers Union -- had no standing to negotiate damages on behalf of the class, for they themselves suffered no damage. They did have standing to seek an injunction -- yet the record shows that they never did so. Nor did they take any of the other steps that one normally associates with litigation, such as getting the defendants to make a formal response to the original complaint. Instead, they have spent the intervening years sitting around and jawboning. Meanwhile, the infringers went on their merry way, multiplying, accelerating, and expanding their illegal practices.


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