Friday, November 30, 2007

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


Anonymous Anonymous said...

The anger just continues to boil as the objectors try to justify their miserable actions. What is it with you people. You're finally developing a conscience? Well, I'm afraid it's way too late. Co-ojector Anita Bartholomew's rationale is the lamest I've heard yet. She foresaw that the case would be thrown out for jurisdictional reasons and YET STILL WENT ON WITH THE OBJECTION knowing that the unregistered writers would get zero. What about all that talk about the C-reduction? You were so worried that the C Class payments would be reduced, yet you didn't care one iota that there would be a possibility that the C Class would end up with NOTHING? All you objectors are hypocritical vermin.

12:33 PM  
Anonymous Anonymous said...

Here is the bottom line, end of discussion. If the objectors did not file an appeal, the settlement would have been final and people would have been paid.
It is also a fact that the objectors could have opted out and pursued their own lawsuits.
This whole mess is the fault of the objectors. They can try to rationalize the indefensible from here to doomsday, but it won't remove the blame and shame.

12:42 PM  
Anonymous Anonymous said...

On the other hand, if the unregistered got their duffs and registered they could pursue their claims individually and make a lot more money. This is what I did.

Francis Hamit

7:08 PM  
Blogger Anita Bartholomew said...

Dear anonymous, here's the real bottom line:

Everyone probably knows about the WGA screenwriters strike. The screenwriters are striking because they want a share of the proceeds when productions of scripts they’ve written appear online.

So far, the studios haven’t agreed to share those proceeds. The writers are still picketing.

But let me suggest a what-if scenario to you: What if the studios offered the striking writers a devil’s bargain? “We’ll give a one-time share to any screenwriter who fills out this form. In exchange, the screenwriters have to agree that the studios never have to pay any screenwriter who DOESN’T fill out the form.

“Oh, and don’t tell too many people about this, because there’s only so much money to go around and when it’s gone, it’s gone.”

Do you believe the WGA would go for it?

That’s essentially the deal that the Defendants offered the writers groups in the Copyright Class Action Settlement.

The defendants agreed to give a one-time payment for online rights to print writers who filled out a form. In exchange, they had to agree that any writer who didn’t fill out the forms lost his or her rights forever.

Several people, like you, have accused the objectors of doing them terrible harm because the objections led to this ruling. See above. The settlement relied on facilitating the theft of the property rights of other writers.

In addition, the class action IS STILL GOING ON. There will be a new settlement, hopefully one that is fair. If you’ve got registered works, you’ll eventually see a settlement. And if you all now register at least some of what you filed C class claims for, you may still be able to stay in the class and get your share — but this time, without striking a devil’s bargain.

11:44 AM  
Anonymous Mike Superstein said...

Anita Bartholomew and the rest of the objectors are absolutely unbelievable. Comparing the WGA strike to this is laughable. The Writers Guild of America is on the same page and united in their cause. This appeal was brought on behalf of 10 objectors who want to dictate their views to thousands of people who do not share their views. And yes, you objectors have done terrible harm to many people. You can try to justify your reasons all you want, but it doesn't change that fact. I have yet to hear one objector answer the simple question; if you objected to the settlement why didn't you opt out and go your own way? Forget about all this other crap rationalization. WHY DIDN'T YOU JUST OPT OUT and not impose your beliefs on the rest of us?

7:00 AM  
Blogger Irv Muchnick said...

The argument that the objectors could have achieved their objectives by opting out is really, really weak; it simply shows no understanding of the settlement or the objections. We were objecting to provisions -- especially the license by default -- that would completely, and negatively, transform writers' rights everywhere for generations and turn the procedure for rights clearance on its head. The complaint that we're trying to bend everyone else to our will is, to say the least, ironic, since the settlement, with its stealth implementation and global sweep, was attempting to bind the whole world of writers to grotesque terms so that relatively few people could collect substantial claim awards.

7:30 AM  
Anonymous Mike Superstein said...

License by default, Lisense by default. You're just a one trick pony. If you are so convinced that your precious works are so valuable, yes you could have opted out and pursued your own suit for money and/or to stop the search engines from reproducing the material. This suit was specifically about making available writers' works without their permission. It was about PAST infractions. The vast majority of writers felt the settlement was fair in regards to those PAST infractions. As freelance writers, the seatch engine situation is now long known and arrangements are now made upon sale that reflect that knowledge. You are pig-headed and can not comprehend anyone's point of view except your own narrow vision. This will be my last post to this blog. I urge others to stop posting as well. This objector craves attention and by responding we are giving it to him.

8:05 AM  
Blogger Anita Bartholomew said...

Dear Mike,

You're unfamiliar, apparently, with what it means to opt out and also, why we objected.

We did it to protect OTHER writers, not ourselves. I had already protected myself in the settlement by filing claims in the class action and accepting only 65% of the fee for each of my articles -- and demanding that they be removed from the defendants' databases. I also registered all my previously unregistered works so that I could protect myself going forward.

But what about all the other writers who had never learned of the stealth provision that cedes their future rights to the defendants? In a typical class action, past wrongs are compensated. This was a permit to commit future wrongs -- and pay nothing. Ever.

If I had opted out, I would no longer be a member of the class. Only members of the class may object and be heard.

I'm sure that you're sincere in your beliefs. But beliefs aren't facts.

9:47 AM  
Anonymous zwrite said...

So what's next? An appeal to the Supreme Court? Attorneys for writers with unregistered claims trying to reach a settlement with publishers?

By the way, I read the dissent. The judge provides numerous specific examples of cases and laws which prove that copyrights are valid, unregistered or not. Thus, 'moxiejan' is clearly wrong about "the point of having registered copyrights?"

There are many people like me with thousands, if not tens of thousands, of articles who sought to register articles, were frustrated by the process, and sought and received no help from the Copyright Office and others.

2:05 PM  
Anonymous Zwrite said...

A couple of these posts make reference to a class action lawsuit.

I would appreciate it if someone would furnish more information on this to writers, including its progress, how to join, etc.

Thank you.

4:07 PM  
Blogger Irv Muchnick said...

Zwrite (and others who are just catching up to this story) are advised to go back through the archives of this blog. In the spring of 2005, the named plaintiffs and the defendants announced a settlement of a years-long consolidation of several class-action copyright infringement cases on behalf of freelance writers against publishers who resold previously magazine and newspaper articles without permission or compensation. This blog documents the efforts of myself and other objectors who opposed various terms of the settlement and who, when the U.S. District Court approved it, appealed to the Second Circuit Court of Appeals.

4:16 PM  
Blogger Anita Bartholomew said...

Dear Zwrite,

I, too, read the appeals court decision and dissent and found Judge Walker's argument persuasive. While an individual cannot bring a lawsuit for copyright infringement without registration, there appears to be no firm reason why that same individual can't, as part of a class damaged by the defendants, be compensated in a settlement as a member of the class.

My personal feeling in this is, while his words may be able to persuade the full appeals court, he wasn't able to persuade the other two judges hearing the case with him. So, while there's hope for overturning the decision there is also risk in assuming that that's what will happen.

In your position, I would try, once again, to register at least some of those articles you weren't able to register. You can register one 12-month's period-worth in a single batch for $45. I wouldn't do more than that,in your position, because you are one of those whose rights we tried to protect by objecting. Right now, if the settlement is not overturned, either on the grounds that unregistered ought to stay in or that they got inadequate representation, anyone who hadn't already filed a claim will effectively lose all future electronic rights to the defendants without compensation. (The settlement gives the defendants an equal right to exploit your rights, without negating your right to do the same. But are you really going to be able to compete with the databases that would legally own the right to sell your work and every piece of writing ever in those DBs?)

Judge Walker argued briefly but persuasively that the settlement should have been tossed on the issue of inadequate representation and uneven treatment of unregistered claimants.

This argument seems likely to scuttle the current settlement, even if the appeals decision is overruled.

Nothing is ever definite though.

If the current settlement is scuttled, those who were closed out of the last settlement will have an opportunity to file claims in a subsequent settlement.

You'll be in a much better position to get decent compensation from that later settlement (assuming there is one), if you have registered at least some of your articles.

6:27 AM  
Anonymous Anonymous said...

Zwrite and others:

The process of registering copyrights can be daunting, but it's basically filing out a form properly. Not all that hard, If you are smart enough to write and sell articles for publication, then this too is not beyond you and you do not need an attorney or a service to do it.

1. Fill out the forms.
2. Provide the deposit copies.
3. Include the check.
4. Wait five to seven months for the certificates.

The Copyright Office does not offer help because they already have a lot of work to do and not enough people, but I found them responsive when I was working through problems with my more than 300 registrations. On the telephone, no less.

I did a Clinic one time for writers about how to do this. I had an IP attorney as a guest speaker. Oddly enough, the NWU, of which I was a member at the time, provided no support or promotion. They had no interest in helping writers get their copyrights registered.

IMO the objectors had several good points and I testified before Judge Daniels , at my own expense, even though I had opted out, because I thought other writers were getting a raw deal. I raised a number of fresh points which are on file.

My own experience with this tells me that we should look to the Congress, not the Courts for changes in the law. That is what everyone seems to want, to have the courts go beyond the current law and provide relief that is manifestly not there. The Federal Courts have shown, time and again, that they do not want these messy, complicated cases and that they will interpret the law in the narrowest sense, as Black Letter Law to avoid them.

However this means that if you bring a good suit against someone and have a case, you will prevail.

Every precedent before this case says that.

The so called writers organizations who took it upon themselves to negotiate this settlement
were simply outmatched by the defendants, who had more more money, better lawyers and time on their side.

Collective action is not the answer. It plays to to what the defendants want. Delay, so they can continue stealing our work. Strong individual cases (meaning multiple complaints) are the way to go. Class actions only enrich the lawyers. The rest of you will get crumbs from the table.

And a class action damages many more writers than it will help. The "License by Default" provision so overreaches both law and equity that it will always be appealed and never be upheld.

The current copyright laws simply do not provide the protection we need. So we need to go to Congress, not the Courts.


Francis Hamit

9:37 PM  
Blogger Irv Muchnick said...

Francis Hamit makes some good points, but he also makes blanket statements I don't agree with. For example, while maintaining that collective action is not the answer, he calls for lobbying Congress to "change the law."

Well, the frustrating truth is that reformers have to do lots of things. Francis appears to be referring to class action when he uses the term "collective action," but I would note that the process of pressuring legislators to pass laws is also "collective action." No one is going to pull this off alone.

Moreover, writers have a bit of experience in "going to Congress." It was called the Copyright Act of 1976, which codified the division of rights in Section 201(c). There didn't seem to be anything ambiguous about it; even so, it took a lot of years to get the issue to the Supreme Court to slam-dunk it. That was not an effort to change the law, but one to enforce the law.

Then the powerful proceeded to flout the law. To bring some law and order to Dodge City, you sue individually to stop that, as Francis has done quite effectively, and you sue collectively. Not every rights holder is as savvy and resourceful as Francis has been, but the law isn't supposed to protect only the most savvy and resourceful; it's supposed to play out with a reasonable relation to reality and fairness. The Second Circuit panel's ruling against jurisdiction for unregistereds, even for the purpose of settlement, is wrong and should be challenged.

9:34 AM  
Anonymous Anonymous said...

Dear Irv:

The Copyright Act of 1976 and subsequent amendments like the DMCA did not come about because of any actions by writers here, but because the USA joined various international treaties on copyright. Copyright is a global law and the USA has to conform or we have no protection abroad. Anthony Trollope's Autobiography contains an episode where he was sent to the USA to try and negotiate such a treaty. (he was a high official of the British Post Office as well as a writer). He had personal motivation since American publishers were free to use his work and not pay him a dime. The history of Copyright goes back to the Statute of Anne in 1710. Immanual Kent devoted an entire chapter to the matter in "The Science of Right" The law is still evolving and is not helped by those who seem to think that writers and other creators should have no rights online. Unless it is their copyright, of course.


Francis Hamit

10:35 AM  
Anonymous Anonymous said...

Dear Irv:

There is one kind of collective action that might work and it won't cost a whole lot either.
When Congresscritters get a letter from a citizen they multiply by 100 since most people are just too damn lazy to write. They'd rather bitch to their friends.

If hundreds or thousands of writers suddenly start writing to the various Committee Chairs in the House and the Senate and cc-ing their own senators and representatives, then we might at least get some hearings on copyright. It is, after all a constitutional right. Maybe it's time to rouse the rabble.


Francis Hamit

1:08 PM  

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