Monday, January 07, 2008

Second Circuit Ruling in Recent Case Blows Settlement's 'License by Default' out of the Water

As noted in the previous post, the objectors' petition for rehearing by the Second Circuit Court of Appeals asks the three-judge panel to set aside its jurisdiction ruling and look first at one of our core merit arguments: inadequate representation of the class. In legal parlance, our issue is "dispositive." See attorney Charles Chalmers' brief,

Today Chalmers also filed with the court a letter submitting what is known as supplemental authority. This means that there was a recent decision by the court, subsequent to the filing of our briefs, that bears directly on one of the questions we raised and argued.

And the answer to that question just does not look good for the settlement's "License by Default" -- the provision whereby the class representatives took it upon themselves to bargain away the future rights of all other class members.

As our letter (viewable at explains, a 2007 Second Circuit ruling in another copyright case, Davis v. Blige, adds to the growing mountain of legal authority against the License by Default. Chalmers notes:

A party in Davis was trying to equate a license to a release, by calling it a “retroactive license. Here we have parties trying to equate a license to a release, by calling it a “release of future claims.”

The court held in Davis, as courts surely will hold here, that a license and a release are two different things. A class action can legally release claims for past damages, but it cannot license on behalf of others any and all future use.

In short, the License by Default is dead as a doornail.

So -- I think detached observers would agree -- is the settlement as a whole. It's time to get on with devising solutions to writers' rights in new technologies that aren't straitjacketed by this historic, and now abortive, sellout.


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