Tuesday, January 22, 2008

Congratulations to The Washington Monthly on Two Decades of Willful Copyright Infringement! (The Settlement Is Dead, Part 2)

Open letter to Markos Kounalakis, Publisher, The Washington Monthly <markos@washingtonmonthly.com>

Dear Mr. Kounalakis:

I am a freelance writer who authored an article, “The [Thwak!] Deregulation of [Thump!] Pro Wrestling,” which was published in the June 1988 issue of The Washington Monthly. It is a chapter of my book Wrestling Babylon, which was published last year.

I understand that you are the white knight who a few years ago rescued the feisty little magazine founded by neoliberal guru Charlie Peters. Protocol therefore calls for me to begin by touting the indispensable role that TWM, and other serious political magazines of similarly precarious economics, play in American civic life.

But forgive me, Mr. Kournalakis, if I quickly move past the violin solo and get to the point. You are part of a community of publishers – small, medium, and large – that systematically and willfully steal the works of freelance writers. If a government institution or another private industry so flouted the law and the commonweal (in this case, by thumbing your nose at the clear Congressional intent of the Copyright Act of 1976, and the clear consensus and direction of the Supreme Court in the 2001 ruling in Tasini v. New York Times), you and other news organizations would be all over it. As it is, the story barely makes a ripple.

For the full background, see my blog, http://freelancerights.blogspot.com. I point you, in particular, to the January 2 post, “Objections, Year 4 – Resetting the Issues,” http://freelancerights.blogspot.com/2008/01/objections-year-4-resetting-issues.html, and the January 21 post, “Introducing THE SETTLEMENT IS DEAD,” http://freelancerights.blogspot.com/2008/01/introducing-settlement-is-dead.html. See also my recent interview with Library Journal’s LJ Academic Newswire, http://www.libraryjournal.com/info/CA6514628.html.

The overall record is as damning as the obfuscations of the politicians whose skewering is TWM’s stock-in-trade. The question is whether you are going to do anything about it. Will you work toward a fair and equitable royalty system, which is the obvious solution for writers, publishers, and information consumers alike? Or will you and the industry continue to play legalistic rope-a-dope and “catch us if you can” – additional and ongoing infringements, expansion of infringing products, creation of more and more “facts on the ground”?

The history of your piracy of my TWM article might bring the issue into sharper focus for you.

In 1994, as a volunteer activist, I organized a National Writers Union campaign to confront publishers and their electronic database licensees and partners over the illegal remarketing of freelancers’ individual pieces without permission or compensation. Before you start promoting the benefits of public access and the promise of the information superhighway, you should know that the NWU’s work in this area was consistently supported by information users; both the American Library Association and the Association of Research Libraries would file amicus briefs with the Supreme Court on behalf of the Tasini case plaintiffs. Unbiased observers, not bent on parodying where smart writers stand on this issue, know that this is not about a draconian regime of charging for every bit and byte; it is about getting a fair share of the revenues generated by the for-profit enterprises with which you and other publishers associate.

By 1995 I was the NWU’s assistant director and founding administrator of its collective-licensing agency, Publication Rights Clearinghouse. In that capacity, I wrote to your predecessor publisher about the issue of the infringement of my article. I was referred to David Linker, TWM’s production manager. This was one of many examples over the years of publishers treating the matter of policy on revenue distribution to their writers as the charge of middle managers, even office flunkies.

Linker wrote to me: “I spoke with Ms. Sally Roberts [of the copyright department of Information Access Company, now known as Gale Group]…. She is familiar with your particular situation and grievances, and she informed me that you have spoken with IAC in the past and have gotten the same information that she gave to me. In particular, she informed me, very specifically, that at this time IAC does not have the ability to track the sale of individual articles. They are only able to track the publication name and the revenues received per each publication. As a result, unfortunately, we are unable to determine the amount of revenue, if any, that has been generated by the sale of your article.”

In the first place, it makes no difference if the for-profit model of TWM’s infringement was based on per-article downloads, a blanket license, advertising, or even a brand-building loss leader. But there turned out to be one other fairly significant problem with what IAC told TWM: the statement that IAC lacked the ability to track individual article sales was not true. As I subsequently pointed out in an exchange of faxes with Morris Goldstein, then CEO of IAC, we had acquired a copy of a 1994 IAC royalty statement to Harper’s magazine. That statement broke down the number of “hits’ on a particular IAC product for Harper’s articles, at $4.90 per hit.

(For a fuller explication, see the series of June 2005 posts on my blog under the headline “The Crimes of Thomson/Gale/Information Access Company.” See also paragraphs 5 through 10 of my July 2005 Declaration in Support of Objections to Settlement, filed in U.S. District Court for the Southern District of New York, and viewable at http://muchnick.net/Muchnick.pdf.)

The upshot of these efforts was that IAC blocked the availability of my articles on products I cited, but went right on infringing on products I didn’t yet know about. For years on end, a ridiculous game of cat-and-mouse has ensued. For example, through IAC, my Washington Monthly piece has been available in various configurations of LexisNexis since August 11, 1995, according to the published “load date.” My exchange with IAC’s chief executive dated from August 21 through August 28, 1995! For the sake of brevity, I will not burden you with the many examples of “blocks” of that work on some online products and new and ongoing infringements of it on others. Trust me – the documentation of your and IAC’s combined serial piracy is exhaustive.

Is this evidence of a partially guilty conscience? A clumsy attempt to mitigate exposure? Stupidity contrived to the point of fraud? A bizarre “single infringement” theory promulgated by lawyers? The legal system will sort all that out at the appropriate time. Either that, or you can start negotiating at last in good faith on a royalty system, as the Supreme Court suggested. The technology exists to do the right thing by writers and the public, as well as to screw them.


Irvin Muchnick


Anonymous Anonymous said...

Dear Irv:

My own research indicates that between 30 and 75 percent of the gross revenues from database subscriptions flows back to the original publishers. The aggregators obviously do not do "due diligence" by checking to the Copyright Office online database to see if the copyright on an article is registered but rely upon the warranties in the contract with the publisher. In my experience, most publishers have a very fuzzy notion of what rights are transfered in an oral contract. One of mine thought that he could declare something "work for hire" and have that stick, when the law specifically says that there must be a written contract. It cost him a lot of money to find out how wrong he was because he arrogantly ignored my letters and those of my attorney. He forced us to file; a commonly used tactic that prejudices the Court against the defendant.

And you are quite right that individual articles can be tracked. Library usage is reported that way, and you can get the reports from your local public library simply by saying you are an interested tax payer and want to see how tax money is spent. The big surprise here is how little the databases are actually used compared to the population served. My local library pays about $1.65 for every article downloaded for free by a library patron.
Divided among all possible users, it works out to about four tenths of a cent each for everyone in the county. That's ten thousand or so downloads per year in a population of over 800,000 people.

Gale Group brags that is has 60,000 libraries in 60 nations as customers (This was in a press release). Multiply that by the $20,000 per year my local library pays for
its subscription and you have 1.2 billion dollars a year, half of which goes to the original publishers and belongs, in part, the freelance writers. As we determined during the Fairness Hearings, there are about 32,500 freelance writers in the USA, plus those abroad, whose work is being infringed. It gets complicated and we really need something like the ALCS here to handle the details.


Francis Hamit

8:37 AM  
Anonymous Lea said...

Good post.

2:49 PM  

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