LexisNexis Counsel Proskauer Rose: Copyright Advocacy's New Strict Constructionists!

To: Louis M. Solomon (lsolomon@proskauer.com), William Hart (whart@proskauer.com)

Dear Messrs. Solomon and Hart:

As the lead objector to a copyright class action settlement for freelance authors in which your firm, Proskauer Rose, serves as a coordinating counsel for the defendants – a case now awaiting a decision by the Second Circuit Court of Appeals – I was drawn to your op-ed essay in Monday’s San Francisco Chronicle headlined “Newspeak on copyright holders’ rights.”

I am posting the link to your article, http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2007/06/25/EDGNNQ4R3U1.DTL, at my Freelance Rights blog, http://freelancerights.blogspot.com. I also am inviting your further comments in response to mine below, and suggesting that blog readers write both to the blog and directly to you with their own thoughts.

Your Chronicle article makes legitimate – and, really, obvious – good points about the doubletalk, or “newspeak,” behind Google and YouTube’s model of blatant copyright infringement against the plaintiffs you represent in a new class action infringement case. It is true that Google and YouTube defy common sense with a convoluted defense based on the “safe harbor” provision of the Digital Millennium Copyright Act, on “playing ostrich,” and more broadly on a unilaterally asserted, and far from universally embraced, policy rationale for copyright law.

Unfortunately, the Proskauer firm’s defendant clients in the author case use the same method of “implausible deniability.” There can hardly be any doubt that the defendants in In re Literary Works in Electronic Databases Copyright Litigation, MDL No. 1379 – including LexisNexis, which Proskauer represents – have willfully and systematically infringed across a period of decades. From the very beginning of widespread access to online magazine and newspaper article databases, such as those marketed by your client LexisNexis, both print publishers and their online licensees and partners received many notices that they were trafficking in material that they clearly did not have the right to redistribute. (For details and documentation, see my declarations accompanying the objectors’ briefs.)

Perhaps most disturbing to me personally are the stealth nature of your clients’ infringing practices and the secretive and unprincipled measures they have taken in an effort to minimize exposure. Database companies, when confronted by infringed authors, selectively removed works, with or without informing anyone, including information consumers. Later, the same entities that created these holes in the historical record, without disclosure, complained that it was authors who were responsible for having turned databases into “Swiss cheese.”

Even after the Supreme Court ruled definitively in 2001 against your clients’ bizarre interpretation of the Copyright Act of 1976, LexisNexis and others forged right ahead with business as usual, and even expanded their infringing practices and created new products with them. These became “facts on the ground” during the years of negotiations with the class representatives of In re Literary Works. The settlement that they forged, which the objectors are appealing at the Second Circuit, is collusive and a sellout of the rights and interests of creators. The settlement even codifies a “license by default,” in perpetuity, for the works of the hundreds of thousands, or even millions, of writers around the world who don’t know about it.

In your Chronicle piece, you state:

Nothing is going to erode “artistic expression” more than for a creator of content to know that his or her hard efforts are worth nothing, because with a click of a mouse Google/YouTube facilitates the massive copying and exploitation of the fruits of the creative effort without any compensation to, or permission from, the rights holder. A filmmaker or songwriter who cannot pay the rent will find something to do besides filmmaking and songwriting.

Well said, Mr. Solomon and Mr. Hart! I suspect, however, that the examples chosen – filmmakers and songwriters, with no mention of freelance authors – were crafted with your firm’s conflicting roles in two important current pieces of litigation in mind.

Now that your oxen, as well as ours, are being gored, the long-term solution to this problem, in my view, is an equitable, technology-supported mechanism to facilitate access to copyrighted works while ensuring that a fair share of resulting revenues be directed to rights holders. I hope you will join me in calling for such a new-generation ASCAP model.

Sincerely,

Irvin Muchnick