HighBeam, Johnny-Come-Lately Willful Infringer (The Settlement Is Dead, Part 4)

HighBeam Research, a successor to a brand called eLibrary, was launched in 2004. It is an online resource for, among other things, newspaper and magazine articles. Much of HighBeam’s content appears to come from aggregators such as Gale Group and ProQuest.

HighBeam content has been embedded in the content of various other brands. Most notably there was something called FindArticles, from a company called LookSmart. But these days if you type in findarticles.com you get sent to a successor called BNET, which is part of CNET Networks.

There will be a pop quiz on all this in 20 minutes.

I bring up HighBeam because when the global copyright class action settlement – now dead for all intents and purposes – was announced in the spring of 2005, one of the first and most important questions was, “What about HighBeam?” It seemed grossly unfair that Gale Group and other core elements of the defense group could blithely hook up with new partners and licensees during the pendency of mediation talks. (And they really did some pending – four years’ worth.) The reason this seemed grossly unfair was that it was grossly unfair.

As it happens, writers were already gunning for HighBeam. On March 2, 2005, the National Writers Union, an associational plaintiff in the settlement but evidently oblivious to what was going on with it, posted a website item headlined, “Copyright violations by FindArticles.com?” (You can still find the item by searching the NWU site, but in case it gets removed you can view a reproduction at http://muchnick.net/FindArticlesNote.pdf.

After the settlement was announced, the NWU and the other two associational plaintiffs, the Authors Guild and the American Society of Journalists and Authors, set up an informational website, freelancerights.com, which was supposed to answer writers’ questions. The site only sowed further confusion and it was quickly abandoned. One of the emailed questions was about HighBeam. The authoritative reply: “Highbeam.com is not a party to the Settlement and nothing in this litigation or the settlement permits highbeam.com to infringe freelance works.” (You can still find the freelancerights.com page, but in case it disappears you can view a reproduction at http://muchnick.net/HighBeamNote.pdf.)

My own article from The Washington Monthly (referenced in this entire series of posts) was among the infringements at HighBeam. However, after I noted this in a declaration to the court on April 26, 2005, HighBeam pulled the piece.

In July 2005 – after first blowing their own deadline to the court – counsel submitted an amendment to the settlement grandfathering in both HighBeam.com and Amazon.com. The settlement fund remained at $10-million-to-$18-million. So not only was HighBeam retroactively released, but now the burden of contributing to a peanuts settlement fund, “syndicated” across the entire industry, was even further divvied up.

This is real, real sleazy stuff, folks.

Maybe plaintiffs’ co-counsel A.J. De Bartolomeo sincerely thought there was “no” evidence of willful infringement, as she declared to the court in the process of applying for attorneys’ fees. Or maybe she thought putting it that way was preferable to saying:

“We could have begun to establish willful infringement by lifting one pinkie.

“Failing that, we could have held the line against additional willful infringements concocted in the broad daylight of ‘settlement’ ‘negotiations.’

“But, gee, why bother?”