Must-Read Statement by Co-Objector Anita Bartholomew

There has been a great deal of misinformation and semi-informed
speculation written about the decision by the Appeals Court on the
class action objection. Even The New York Times got it wrong.

Here's what you need to know: before I filed an objection, in 2005, I
exchanged emails with Michael Boni (the attorney for the
plaintiffs/writers), and others involved in the negotiations, about
EXACTLY this scenario (because the elephant in the room was always the
lack of legal standing of unregistered applicants).

If the UNregistered claims were thrown out, I asked Michael Boni,
would those writers who never registered be permitted to stay in the
class and file claims as B (untimely but registered) class if they
later registered, before the case was resolved? Boni's answer, at the
time, was an unequivocal, yes. All the C claimants would have to do
to remain in the lawsuit would be to register.

I asked the same question of Charles Chalmers, the attorney for the
objectors.  His opinion was that, probably, the Class C could stay in
by registering. He couldn't give a definite answer as there were
variables. Not as strong an opinion as Boni's, but still, not the doom
and gloom everyone is expressing.

This lawsuit can't go away unless the judge says so. The judge can't
say so because there are thousands of valid registered articles
involved in this lawsuit. Thousands. Of. Registered. Articles. And
the Supreme Court's Tasini ruling gives the registered writers (A & B)
who did not sign away rights a slam-dunk if this case goes to trial.
That's always been true.

That doesn't mean it won't take years more to get any money. It will.
And the defendants will use every trick in the book to wear down the
writers. That's what they're paid to do. They will try to exclude
articles registered later than the original cut-off. In the end
though, the defendants will have to settle with you. They WANT to
settle with you, regardless of what they claim in the interim because
that's the whole point. They don't want to risk going through a trial
against all of you and your valid (registered, timely or not).
copyright infringement claims.

Writers must act in their own interests to share in the eventual
settlement money, and get a better (NO default future rights
forfeiture) deal than was on the table when the defendants had the
advantage (because of the lack of UNregistereds' legal standing).

Register all those articles you claimed as C (unregistered) now. Any
12-month-period's worth can be registered on a single form for a
single fee.

Permission is granted to forward this to anyone or any writers' forum
or bulletin board, as long as the message, above, is in no way
changed, truncated or otherwise edited.

Anita Bartholomew

Wall Street Journal Gets Some of it Right

http://online.wsj.com/article/SB119635999770908236.html?mod=googlenews_wsj


To Chad Bray (chad.bray@dowjones.com)

Mr. Bray:

I am the lead objector to the copyright class action settlement that got thrown out by the Second Circuit. Your report in The Wall Street Journal is the only one I've seen anywhere that actually mentions why the appellate court was reviewing the district court's approval of the settlement in the first place. Congratulations and thank you.

All of your colleagues apparently would have their readers believe that the Second Circuit parachuted down out of nowhere to trash the settlement. Though it's probably not realistic to expect journalists employed by defendants and interested parties in this case to report the story exactly as I would, this fundamental disconnect is striking.

Irvin Muchnick

Reuters

Reuters reported the court ruling at

http://investing.reuters.co.uk/news/articleinvesting.aspx?type=allBreakingNews&storyID=2007-11-29T174442Z_01_N29211800_RTRIDST_0_FREELANCE-COPYRIGHT.XML.

The New York Times and the Toronto Globe and Mail are running this wire-service report online.

The story says the opinion reopens what was thought in 2005 to be settled, and does not mention that it was before the appellate court as a result of action by a slate of objectors.

'The Objectors Are Pleased This Unprincipled Action Will Not Happen For Whatever Reason'

I want to give my layman's emphasis to Point 5 of the Charles Chalmers statement just posted:


The C class, not to mention the much better paid B and A classes, were only getting compensation because they purported to bargain away the copyrights of those freelancers, from virtually every country in the world, who did not receive notice of the settlement, or understand what it was doing. The objectors found this to be an unprincipled action, and they are pleased that for whatever reason it will not happen.

Statement by Objectors' Attorney Charles Chalmers on the Appellate Court Ruling

1. Everyone should understand that the objectors did not raise the jurisdictional issue on which two of the three judges decided that the settlement could not stand. The objectors agreed with the defendants and the plaintiffs that the district court had jurisdiction to approve a settlement encompassing unregistered copyrights.

2. The judges raised the jurisdiction issue themselves. The majority opinion, and the dissent, discuss the jurisdiction issue in much greater depth than any of the parties to the appeal did in responding to the court’s inquiry on this issue. While it is too early to characterize the two conflicting opinion as exhaustive, they would appear to be so. The judges on a federal Court of Appeal each have two or three law clerks who are recent graduates of the finest law schools with outstanding abilities. Such positions for the judges of the Second Circuit fall only a tiny distance, if any, below clerking for a justice the Supreme Court. Undoubtedly the skills of several such clerks were employed in developing these two opinions.

3. This decision is likely to be of great significance to class action law, and possibly copyright law. It has potentially important impact in a broad range of situations outside those two areas. It is early to make this judgment, pending a through review of the opinions; but the arguments of the parties, and the dissenting opinion suggest that this is the case.

4. I have already heard from a reporter a comment attributed to one of plaintiffs’ counsel. I won’t repeat it because the report may not be accurate. However, if anyone should suggest that the objectors ended up causing the C class, or the unregistered copyright owners (keeping in mind that the C class included registrations after 2002), to get nothing, there are several important points to consider. One, unregistered can register and obtain recovery. Two, because of the “C-Reduction” it is not clear that the C class was going to get anything anyway. Judge Walker, in his dissent, noted the objectors’ argument that the C class was not adequately represented as presenting a serious problem because, among other reasons, the C class might not get anything. Before Judge Daniels in the district court the plaintiffs and defendants contended that there was no chance that there would be a reduction to the already modest C compensation. In the Court of Appeal they admitted this was not the case and that there either was, or might be, a reduction. They have had more than year to tell everyone the outcome of the claims procedure, but they have not done so.

5. The C class, not to mention the much better paid B and A classes, were only getting compensation because they purported to bargain away the copyrights of those freelancers, from virtually every country in the world, who did not receive notice of the settlement, or understand what it was doing. The objectors found this to be an unprincipled action, and they are pleased that for whatever reason it will not happen.

6. As the majority opinion describes at some length, and we could describe at even greater length, the plaintiffs, including the organizations, knew that defendants were prepared to resist any recovery for unregistered owners right from the beginning. However, the defendants made clear that those holding registered claims could be well compensated, and the plaintiffs’ counsel could be well compensated, so long as they quietly included unregistered, as well as those who registered after 2002. Did anyone ever hear these plaintiffs and organizations getting the word out that benefiting from the litigation would be greatly increased if freelancers registe

7. The first step for all participants in this proceeding (plaintiffs, defendant and objectors) is to consider, and prepare if appropriate, a petition for rehearing or rehearing en banc. We have 14 days to do that. I will focus my energies on that issue exclusively over the near future.

Housekeeping on Previous Post

The original version of the previous bulletin about the appellate decision today had a typo and a couple of other clerical mistakes, all of which take be an unprofitable use of time to explain. That post has been tweaked accordingly.

APPEALS COURT THROWS OUT COPYRIGHT CLASS ACTION SETTLEMENT

BULLETIN
Thursday morning, November 29, 2007

In a long opinion published today, the Second Circuit Court of Appeals has ruled on the objectors' appeal of the copyright class action settlement by striking it down. These are the two key sentences:

"The overwhelming majority of class members’ claims concern the infringement of unregistered copyrights. We hold that the District Court lacked jurisdiction over those claims. We therefore vacate the certification and settlement approval, and remand for proceedings consistent with this opinion."

The majority opinion and a dissent are viewable at http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTU5NDMtY3Zfb3BuLnBkZg==/05-5943-cv_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irl69fe/3/hilite.

There is also an opinion by judges on the appellate panel, who explain why they did not recuse themselves even though they are class members themselves, at http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTU5NDMtY3YgUmVjdXNhbCBPcG4ucGRm/05-5943-cv%20Recusal%20Opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irl69fe/1/hilite

The objectors and our attorney, Charles Chalmers, are closely reviewing these documents; we will issue a statement with further interpretation shortly. For now, I can say that it appears that the issue that this three-judge panel focused on -- the jurisdiction of holders of unregistered copyright even for the purpose of settlement -- is not one on which the objectors, the plaintiffs, and the defendants had disagreed.

Irvin Muchnick

'Pay Me for My Content'

New-tech guru Jaron Lanier has an op-ed piece today that marks a rare example of The New York Times actually moving the dialogue forward.

In "Pay Me for My Content" (http://www.nytimes.com/2007/11/20/opinion/20lanier.html), Lanier argues that the time is way past for creators to expect some futuristic windfall in return for having their works given away online by aggregators. "Information," he suggests, "could be universally accessible but on an affordable instead of an absolutely free basis."

Obviously, I like the drift of these remarks and the acknowledged reversal by someone who says he once wrote a manifesto entitled "Piracy Is Your Friend." But I still think something is missing here, and that something is the idea of the real hidden costs to all of society -- not just writers and their brethren -- of content that is purportedly, but not actually, free. When giant corporate aggregators call the shots, free can turn out to be no so free: creative material becomes embedded in commercial clutter, and the public sometimes trades away way too much privacy in return for access.

And that is why I wish Lanier had also raised a model that many people, including myself, have long advocated: a royalty system similar to the music industry's ASCAP. Let those who exploit the work of others calculate royalties in their overhead. Whether the exploiters choose to charge users directly for the content is their own business decision.

Plugola Central: WRESTLING BABYLON Author Muchnick in CNN Documentary

Author Irvin Muchnick is interviewed in a documentary on CNN about professional wrestling that will air for the first time on Wednesday, November 7, at 8:00 p.m. Eastern time.The hour-long program, entitled “Death Grip: Inside Pro Wrestling” and part of the CNN Presents series of special in-depth reports, covers the topic of drugs and death in the industry. This issue rose to public consciousness following the June double-murder-suicide of wrestler Chris Benoit and is now the focus of investigations by two committees of the House of Representatives.

Muchnick is author of WRESTLING BABYLON: Piledriving Tales of Drugs, Sex, Death, and Scandal and co-author of BENOIT: Wrestling with the Horror That Destroyed a Family and Crippled a Sport. He is working on the forthcoming book CHRIS AND NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death.

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