Wednesday, August 13, 2008

Important Update on Supreme Court Appeal

The defendants (publishers) have filed a petition asking the Supreme Court to hear their arguments to overturn the Second Circuit’s ruling that settlements of unregistered copyrights do not fall under the jurisdiction of the federal courts. That decision, issued in November 2007, invalidates the 2005 class-action copyright settlement for freelancers. I am part of a slate of class members who objected to the settlement, which was why it was at the Second Circuit in the first place.

The plaintiffs (named plaintiffs plus writer’ organizations) filed a brief supporting the defendants' petition.

We objectors do not oppose the petition and therefore had nothing to add at this point. The federal courts' jurisdiction over the settlement was one thing on which the settlement parties and the objectors agreed. The appellate court's ruling to the contrary was "sua sponte," on its own initiative.

In the event the Supreme Court agrees to review the Second Circuit ruling (a step known as “granting certiorari”), it is possible that the objectors will weigh in. We are concerned that the defendants and plaintiffs have overstepped the bounds in their cert papers, and subtly misrepresented the nature of the dispute so as to gain leverage down the road in litigation of the objectors' arguments against the settlement on its merits.

I have only hard copies of the parties’ briefs to the Supreme Court. In the near future I hope to scan the briefs into my computer and upload them for the edification of blog readers.

One example of what we see as prejudicial framing of potential future issues is where the defendants state: “The objectors appealed, complaining of the insufficient payments for unregistered works and the release of future claims, but … not arguing that the district court lacked jurisdiction …”

Describing the objections in this fashion is, at a minimum, misleading by omission. We object to the “license by default,” and that has nothing to do with the sufficiency of payments. And we maintain that the class was not adequately represented by representatives and lawyers who sold out a super-super majority of unregistered rights holders for the benefit of an essential handful of registered ones. Under the Supreme Court’s own holdings, the courts must be satisfied on the question of adequate representation before they get to any issue of fairness.


Anonymous Anonymous said...

According to the Supreme Court Web site, it looks like the court will issue a decision on whether or not they will accept the case on August 25. Is this correct?

11:20 AM  
Blogger Irv Muchnick said...

I'd have to check on what you're saying, but instinctively, it seems unlikely that we'd hear from the justices on the cert petition that quickly.

11:25 AM  
Anonymous Anonymous said...

Hi Irv, Here is the link I'm looking at:

It is under Docket in the case distribution schedule. I'm still not sure I'm understanding it correctly.

My own attorney did tell me that once a case goes to the Supreme Court, it must be heard within the term year, so it would not surprise me if the court was very timely and deliberate in reviewing and routing filed petitions. Let me know what you think. Thanks!

8:35 AM  
Blogger Irv Muchnick said...

I'll see what I can find out.

9:07 AM  
Blogger Irv Muchnick said...

The August 25 date on the case distribution schedule refers to the date by which an opposition to the petition for certiorari must be filed. There is no way to tell from that information when the Court will consider the petition, but it will probably be some months after that. (I've repeated this note as a dedicated post.)

7:55 AM  

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