Dialog's Dialogue with Willful Infringement (The Settlement Is Dead, Part 3)
Now let’s move on to another factor: willful infringement. The law specifies special damages for willfulness.
In her declaration to the court in support of the lawyers’ application for fees, class counsel A.J. De Bartolomeo attempted to explain why the case against the tiny UnCover fax delivery service (on which, as she noted, both she and I had worked) yielded a $7.25 million recovery, while the consolidated class actions here, against every other major similar infringer combined, yielded a grand total of $18 million. In the earlier case, according to De Bartolomeo, “plaintiffs obtained considerable evidence suggesting defendants’ copyright infringements were willful. In the present action, by contrast, Plaintiffs have obtained no evidence of willful infringement. On the contrary, all indications are that before the Tasini case, publishers did not believe their electronic use of freelancers’ works constituted copyright infringement.”
No other statement in the record of In re Literary Works better illustrates the collusion of the parties in this horrible sellout of a settlement, which thankfully was stopped just before it could be consummated.
For the next actions, your humble blogger is going to try to make sure plaintiffs “obtain” such evidence. One way to obtain it would be to engage in meaningful, adversarial discovery to review internal industry documents. De Bartolomeo and co-counsel did no such discovery. They didn't even get the defendants to file a formal response to their complaint.
Another way to "obtain" willfulness evidence is to look at public statements and coverage of the electronic rights issue in the industry trade press. I’ll be rolling out examples of these in the coming weeks.
Yet another way is to follow the timeline of new infringing products that were started both before and after the Supreme Court’s Tasini ruling and other pertinent developments.
Again, there are a zillion examples, and I’ll get to as many as I can, as efficiently as I can. Let’s start with DialogSelect Open Access.
Dialog is one of the first-generation database brands. Like Gale Group, it is now owned by
Let’s review this slowly. In October 1999, Dialog was putting the finishing touches on a multimillion-dollar settlement driven by negative findings in a lawsuit against one of its products. At the exact same moment, Dialog was launching a new product with the exact same infringing model.
No evidence of willfulness, indeed.