Tuesday, November 25, 2008

While We Wait to Hear from the Supreme Court ...

... on the results of today's conference, here's a link to my latest column for Beyond Chron, the San Francisco online newspaper. It has nothing to do with our case:

MINEFIELD: WILL HOLDER BE THE OBAMA CABINET NOMINEE WHO GOES DOWN?
http://www.beyondchron.org/articles/Minefield_Will_Holder_Be_the_Obama_Cabinet_Nominee_Who_Goes_Down__6328.html

Thursday, November 20, 2008

Supreme Courts Confers Again November 25

The Supreme Court now lists our case among those to be discussed at the justices' conference next Tuesday, November 25. Clearly, there was something too complicated in their original discussion for them to make a snap decision on whether to hear the appeal, but saying anything beyond that would be speculation. Our wait for further word resets accordingly.

Tuesday, November 18, 2008

Mr. Anonymous's Complaint

Beyond Chron today ran an uninformed letter about my piece yesterday. (My essay is reproduced in full in the previous post.) Below are the texts of the anonymous letter and my response.


This is a response to the distortions and assertions made by Irvin Mushnick [sic] in his article "Supreme Court Weighs Reviving Freelance Writers’ Settlement – and Google Case Lurks."

Before the original settlement in the class action suit was finalized, class members could have opted out of the settlement and filed their own suits if they felt the settlement was insufficient. Several hundred people did just that. Out of the thousands of class members there was a "slate" of exactly 10 objectors who decided they would speak out for the "injustices" of the settlement by objecting to the Court of Appeals. The vast majority of class members were happy with the settlement and pleased to get something back for their work, considering that it was clear from federal code that recovery was not possible if the works were not registered. It is important to note that it is not worth the time or money for most freelancers to register their works, especially if the works were time sensitive and would virtually be useless for future reference on the internet. In other words the "license by default", which Mr. Muchnick is so proud that he coined, either is meaningless for time sensitive items or has little residual value to the author via seach engines. Mr. Muchnick continues to push the idea that a freelance article submitted to a newpaper or magazine is on a par with a royalty system such as ASCAP. That suggestion is laughable on its face.

The bottom line is that if Mr. Muchnick and the other objectors had not filed an appeal, the settlement would have been final and the claims paid. With the additional attorneys fees incurred through appeals the settlement now, as Mr. Muchnick phrased it, would indeed be worth "crumbs" even if the court grants Cert and the appeal is eventually denied. The objectors will tell you that they were against the settlement on principle. The truth is that they were greedy and felt the settlement was not enough. They envisioned the Second Circuit ruling in their favor and sending the case back to District Court for more negotiations and eventually more cash. Well it backfired. The court threw the entire case out on jurisdictional grounds, which could easily have been predicted by reading the federal code concerning copyright registration. Because of their greed, thousands of freelance writers will get zero for past works.

In full disclosure, I am a freelance newspaper writer who submitted thousands of columns over the years. If the Supreme Court does not overturn the Circuit Court's ruling, I stand to lose a great deal of money.

Anonymous,
Palo Alto


*****

The bold Mr. Anonymous, in his complaint about my Beyond Chron piece on the freelance writers' settlement, shows that he has the purposes and burdens of class action litigation exactly backwards.

Yes, the objectors could have opted out and pursued individual claims against the defendants. But our objections went beyond Mr. Anonymous's singular fixation on his personal view of the sufficiency of the compensation for past infringement. The whole point of the lawsuit had been to trigger the kind of royalty system contemplated by the Supreme Court in the Tasini case. The only way to fight the license-by-default-at-0%-royalties provision -- by which Mr. Anonymous and others sought to bind everyone else the world over to a giveaway of rights into perpetuity -- was to stay within the class and file objections.

Mr. Anonymous is wrong in asserting "that it was clear from federal code that recovery was not possible if the works were not registered." For one thing, jurisdiction for unregistereds for settlement purposes was routinely assumed before the Second Circuit's odd ruling last year to the contrary. More to the point, the open-ended nature of potential future claims by unregistereds (who can convert themselves to registereds at any time) defined the very leverage the plaintiffs held over the defendants in this case. A handful of class representatives and writers' organizations frittered away that leverage for the benefit of themselves and to the detriment of the class.

I understand that Mr. Anonymous is eager to collect his own pennies on the dollar, but what is at stake here is the architecture of freelance journalists' rights in the digital age, and in turn the future diversity and vitality of our culture. I apologize for the inconvenience to him caused by the inadequate represesentation of the class by the named plaintiffs and their lawyers.

Irv Muchnick

Supreme Court Weighs Reviving Freelance Writers' Settlement -- And Google Case Lurks

[originally published at Beyond Chron, at http://www.beyondchron.org/articles/Supreme_Court_Weighs_Reviving_Freelance_Writers_Settlement_and_Google_Case_Lurks_6300.html]


Here’s another nugget for connoisseurs of under-the-radar news: According to the Supreme Court website, the justices placed on the agenda of their Friday, November 14, 2008, conference a discussion of whether to grant certiorari in a case now known, mellifluously, as Reed Elsevier Inc., et al., Petitioners, v. Irvin Muchnick, et al., Respondents.

Once upon a time the case was called In re Freelance Literary Works in Electronic Databases Copyright Litigation. But that was before a slate of objectors, led by myself, challenged the terms of a global settlement of publishers’ decades of systematic infringement of the works of freelance writers. The settlement, brokered by three writers’ organizations, was approved in district court in 2005 but thrown out by the Second Circuit Court of Appeals last November.

Read all about it on my blog, http://freelancerights.blogspot.com.

The appellate court invalidated the settlement not on the basis of the merit arguments raised by the objectors, but due to a technical wrinkle on which, ironically, we disagree with the court and agree with our adversaries. The Second Circuit said a class action copyright settlement could not include the claims of copyright holders whose works were not formally registered with the Copyright Office. (The consensus is that that would cover more than 99 percent of the potential claims.) The defendants and plaintiffs jointly appealed to the Supreme Court; our attorney, Charles Chalmers, then weighed in with a response at the invitation of the justices.

High Court watchers say that it often announces “cert” decisions very quickly after conferences, so there’s a chance we could hear as soon as today. But it gets even more interesting: an alert blog reader informs me that the justices – who, by design, move in mysterious ways – also sometimes rule on more than just the petition to hear the appeal. They could decide to jump into the substance of the proposed settlement itself, and make the announcement in a tersely worded order in one fell swoop. Or, of course, not.

Either way, I think, what I’ve dubbed the UnSettlement is deader than the W. administration, and for equally good reason. After subtracting fees for plaintiffs’ lawyers who were in over their heads against the publishing industry and now want to quit while they’re behind, hundreds of thousands of freelancers worldwide stand to scramble over $11.8 million in crumbs to cover years of having their articles redistributed on LexisNexis and similar products. Worse, the UnSettlement provides for a “license by default” into perpetuity for all those who didn’t file for their $5-and-up (!) claims, and has no prospective royalty system.

This last feature is what I hope most piques the Supreme Court’s interest. In the 2001 Tasini v. New York Times decision, the court ruled for the plaintiff freelance writers across the board in their contention that Section 201(c) of the Copyright Act gives periodical publishers only a one-time license to publish non-staff-written articles. The court explicitly suggested, as a solution, a royalty system similar to that devised by ASCAP in the music industry after the advent of recording equipment and radio.

But publishers ignored the justices, damned the torpedoes, put out propaganda to sell the public on the idea that their for-profit applications of infringement were paragons of “access,” and shoved all-right-contracts down the throats of freelancers to make the problem go away in the future. And the Authors Guild, National Writers Union (for which I was assistant director from 1994 to 1997) and American Society of Journalists and Authors caved in – to their everlasting shame.




In my last column on this topic in Beyond Chron, “Freelancers’ Settlement All But Dead – Now What?”, I wrote one line I’d now take back: “Writers, publishers, information consumers – all of us – have a fine mess on our hands … and it has nothing to do with Google.”

A recent development suggests that this fine mess, like seemingly almost everything else, may eventually have everything to do with Google.

The Authors Guild, one of the architects of the freelancers’ sellout, three years ago joined the Association of American Publishers in filing a class action suit against Google over its book-scanning project. Last month the parties announced a preliminary settlement. I’ll reserve detailed comment until further study, but two observations for now:

The proposed $125 million settlement fund in the Google case may or may not be on target. But unlike the sum in the freelancers’ settlement, it is not, on its face, chicken feed.

And the Google settlement does provide for establishing a prospective royalty system, which I advocated for freelancers for years prior to the Supreme Court’s Tasini decision, and which I have promoted ever since as the only just and reasonable resolution of the UnSettlement. The technology exists; it’s just that the power imbalance between publishers and writers has given the former the notion that they can dismiss compromise and flout the law.

Over to you, justices.


In addition to blogging about freelance rights, Beyond Chron contributor Irvin Muchnick blogs about his 2007 book Wrestling Babylon and his forthcoming book Chris and Nancy: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death, at http://muchnick.net/babylon.

Monday, November 17, 2008

More Tea-Leaf Reading

(Disclaimer: Along with $1.07, tax included, the following will get you a sweet tea at McDonald's.)

On the Supreme Court's main "orders" page (before you click down to a particular day's list), there is a note explaining that most decisions come out on regular order lists, but "miscellaneous" orders can come out at any time. So we're guessing that we either are getting kicked over to the next conference date, November 25, or are destined for a "miscellaneous" order.

Again -- just a guess.

Supreme Court: No News Today

Our case is not on the list of orders issued today by the Supreme Court.

Supreme Court, Freelancers' Settlement -- And Google

Here’s another nugget for connoisseurs of under-the-radar news: According to the Supreme Court website, the justices placed on the agenda of their Friday, November 14, 2008, conference a discussion of whether to grant certiorari in a case now known, mellifluously, as Reed Elsevier Inc., et al., Petitioners, v. Irvin Muchnick, et al., Respondents.

Once upon a time the case was called In re Freelance Literary Works in Electronic Databases Copyright Litigation. But that was before a slate of objectors, led by myself, challenged the terms of a global settlement of publishers’ decades of systematic infringement of the works of freelance writers. The settlement, brokered by three writers’ organizations, was approved in district court in 2005 but thrown out by the Second Circuit Court of Appeals last November.

CONTINUED in today's edition of Beyond Chron, the San Francisco online newspaper:


http://www.beyondchron.org/articles/Supreme_Court_Weighs_Reviving_Freelance_Writers_Settlement_and_Google_Case_Lurks_6300.html

Tuesday, November 04, 2008

Defendants' Response to Objectors' Supreme Court Brief

As the ever-vigilant "Moxie" noted in the comments below the previous post, counsel for the coordinating defendant, Reed Elsevier, has filed with the Supreme Court a response to the objectors' brief. You now can view it at http://muchnick.net/PetitionersSCOTUSReply.pdf. (If you don't use the direct link in the previous sentence, you must type in the URL precisely -- it is "case sensitive.")