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.

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


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