Settlement Parties Are Lying Low

Yesterday the copyrightclassaction.com website got around to acknowledging the April 15 denial by the Second Circuit Court of Appeals of the parties' petitions for rehearing.

There is still nothing about this on the settlement administrator's 800 number, or at any of the associational plaintiffs' websites.

So what's going on? Your guess is as good as mine.

Some Questions and Answers

I got the message below from an anonymous reader and offer the following answers.

What is your time frame for deciding whether to take this to the Supremes? Since the appeals court ruled the Cs do not have standing, is this the one point you would be pursuing? If not, what else? Do you know if any discussions are now taking place on amending the original agreement to include only As & Bs? Since the objectors seem to be more interested in setting legal precedent than actually receiving money, might this be the time for you to opt out of this settlement and then pursue these issues on your own? You are,after all, interfering with the rights of As and Bs (with legal standing that already is well established) to recover substantian sums of money that are due. I understand that you have legal points that you want to make. I just wish you could now find a way to do it in a way that isn't so harmful to other people who are perfectly happy with the settlement.

Taking the questions in order:

1. What is your time frame for deciding whether to take this to the Supremes? Since the appeals court ruled the Cs do not have standing, is this the one point you would be pursuing? If not, what else?

An appeal to the Supreme Court must be filed within 90 days, or by July 15. The basis of the appeal would be the standing of the C's. As I said, the objectors are unlikely to take this costly and uncertain step by themselves. The parties -- especially the National Writers Union -- have said they would, but I don't know whether they intend to follow through.

2. Do you know if any discussions are now taking place on amending the original agreement to include only As & Bs?

No. That is, I do not know of any such discussions.

3. Since the objectors seem to be more interested in setting legal precedent than actually receiving money, might this be the time for you to opt out of this settlement and then pursue these issues on your own? You are,after all, interfering with the rights of As and Bs (with legal standing that already is well established) to recover substantial sums of money that are due. I understand that you have legal points that you want to make. I just wish you could now find a way to do it in a way that isn't so harmful to other people who are perfectly happy with the settlement.

The objectors were and are interested in stopping a settlement that binds everyone the world over -- English-speaking or not, dead or alive, aware of the settlement or not, avid students of fine-print legalese or not -- to a regime that gives all rights away to the publishers in perpetuity. So methinks the questioner has this one backwards.

If the settlement is declared dead by the district court, or if the court approves a new settlement that includes only A's and B's, removes the License by Default, and gives a new opt-out deadline, then you can sure that I, personally, will proceed to opt out and let all who wish to do so have the unimpeded opportunity to settle for dimes or pennies on the dollar.

At this moment, the objectors are members of the class. We chose to remain as members of the class, rather than opt out, so we could stop this awful settlement, which presumed to impose bad terms, including especially the License by Default, on "absent class members." That's not "a bad legal precedent"; it's a global negotiation of a prospective royalty system -- at the whopping rate of 0% royalties -- by a few named plaintiffs who illegally appointed themselves to represent everyone.

Second Circuit Also Denies Parties' Petitions for Rehearing

The Second Circuit Court of Appeals has denied the separate petitions by the plaintiffs and the defendants to reconsider last November's ruling by a three-judge panel that the copyright class action settlement be remanded to the district court because of the issue of jurisdiction over claims involving non-registered copyrights.

We have not yet received the orders. However, April 15 docket entries show that the court denied the petitions for both rehearing by the three-judge panel and rehearing "en banc," by the entire court. Last month the court denied a parallel petition by us objectors.

More soon when we have the orders in hand -- including whether it's now on to the U.S. Supreme Court for some or all of us, or back to Judge Daniels in New York.

Objectors' Petition for Rehearing Denied

In a one-sentence order dated March 24 (which has just come to our attention), a three-judge panel of the Second Circuit Court of Appeals has denied the objectors' petition for reconsideration of its November 29, 2007, ruling in the copyright class-action settlement.

The judges held that the settlement must be remanded to the district court because it includes holders of unregistered copyrights.

Separately, the plaintiffs and the defendants also petitioned for reconsideration by the three-judge panel or, in addition, rehearing "en banc" by the full Circuit Court. There has been no ruling yet on that.

I'm just guessing, but I don't think the denial of our petition signals how the court will rule on the parties' petitions. Ours could be said to have been more procedurally ambitious in that we argued that the judges should have considered the "merits" of our objections dispositive and ruled on them before getting to the question of jurisdiction.