Monday, January 07, 2008

Petition for Rehearing: Rule First on Inadequate Representation

The appellants' (objectors') petition to the Second Circuit Court of Appeals for rehearing has been filed. It is viewable at

The court ruled on November 29 that the copyright class action settlement could not include the claims of Category C (unregistered) copyrighted works. In our brief, we do not engage that issue, which is addressed by the appellees (the defendants and the named plaintiffs, the parties to the settlement).

Instead, we argue that the court should vacate the decision and determine first if there are Rule 23 (class action law) issues, such as adequacy of representation, which precedents suggest should be disposed of prior to the issue of jurisdiction.

The conclusion of the ten-page brief states:

Objectors believe that this litigation, and the related issue of historical

content of databases, can be resolved. In Tasini the Supreme Court

suggested that there were models in existence in the area of copyrighted

music which might serve as models for an agreement. The Court even

noted that such agreements had apparently been reached in France

and Norway. Instead the parties undertook an entirely novel

approach, purporting to grant licenses in the copyrights of authors from

around the world. These are not just licenses to the existing databases,

but licenses to a huge category of unnamed recipients who would also

be entitled to grant further licenses and the right for further sublicensing

ad infinitum. No class action in history has undertaken such scope.

The Supreme Court understood that arriving at a solution might

be complicated when it said that it would leave “remedial issues open for

initial airing and decision in the District Court.”

Addressing this problem has taken a long time, though perhaps not all

that time was focused on the proper structure to achieve the result

Congress intended by enhancing the rights of authors versus publishers in

the 1976 Copyright Act. See, Tasini, at 496 n.3. Settlement negotiations

started in November 2001, the mediation started in February 2002 and

the principal terms were agreed in April 2003. The only explanation of the

next two years before it was brought to the district court is negotiation

of language for the settlement and notice.


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