Thursday, February 21, 2008

Authors Guild Rejects Mediation Overture

The Authors Guild appears to have rejected my suggestion – in a February 14 letter to Authors Guild president Roy Blount Jr. – to explore mediation of the dispute between the objectors and the settlement parties (plaintiffs plus defendants).

The full text of my letter is below. It was sent by fax, email, and postal mail to Blount, with separate cc’s to Paul Aiken, Authors Guild executive director. Another copy also was mailed to Blount’s home address. In addition, I followed up by email, to both Blount and Aiken, on February 21. There has been no response.

For those wondering about my reference to Blount as an old friend, we have been friends for more than 35 years. Last year he provided a blurb for the back cover of my book
Wrestling Babylon.

The three associational plaintiffs (Authors Guild, National Writers Union, and American Society of Journalists and Authors) spent years in mediation with the defendants before announcing a settlement in 2005. Nine other objectors and I, citing the settlement’s “license by default” and other flaws, opposed approval in district court and appealed to the Second Circuit Court of Appeals. A November 29, 2007, ruling by the appellate court has effectively scuttled the settlement. That was the context of the mediation overture.

I sincerely thank Neil Boorstyn of Bingham McCutchen LLP – perhaps the country’s foremost copyright expert – for offering his good offices for mediation.

Dear Roy:

As you know, we are old friends who find ourselves on opposite sides of a lengthy legal dispute. The Authors Guild is an associational plaintiff of In re Freelance Literary Works in Electronic Databases Copyright Litigation. I am one of the objectors who opposed the approval of the settlement of that case in United States District Court for the Southern District of New York and appealed to the Second Circuit Court of Appeals. On November 29, 2007, the Second Circuit remanded the case to district court for further proceedings consistent with a sua sponte ruling that the federal courts do not have jurisdiction to approve a settlement including unregistered works.

The objectors believe it is now in the interests of all parties to explore mediation of the dispute between the appellants (objectors) and the appellees (plaintiffs plus defendants). That is the purpose of this letter.

The distinguished copyright expert Neil Boorstyn has granted us permission to suggest his name as the mediator at the appropriate time. We recognize that you may feel that time could be a somewhat later point, after the Second Circuit rehearing petitions play out.

Mr. Boorstyn, Of Counsel at Bingham McCutchen LLP, is perhaps best known for his role as Special Master in the lawsuit by the recording industry against Napster. He is also the author of one of the best-known treatises on copyright law.

We respectfully request that you initially respond to this idea by telling us if the plaintiffs find it agreeable in principle and are willing to forward it to the defendants for their consideration. After we receive your answer, we would authorize you to so forward it.

Thanks for your attention to this, Roy. I look forward to hearing back from you.

Irvin Muchnick

Friday, February 01, 2008

Lessig's Legacy: Only Halfway There

Today's San Francisco Chronicle has a story about Stanford law professor Lawrence Lessig, headlined "Digital visionary's new offline cause." See

Lessig, who dreamed up the Copyright Commons and evangelized on behalf of "Free Culture," is turning his focus to the influence of money in politics.

For my money -- or should I say "for my free license"? -- Lessig, like many other "digital visionaries," has advanced only one half of a good idea. He waged a rhetorically pure battle against corporate hoarders of intellectual property. But he never quite came to terms with the reality that as long as IP continues to exist (and it always will), independent creators need to be empowered to assert them against big-money interests.

"Information wants to be free" is a fine shibboleth. A more subtle and accurate formulation, I think, is that new technology creates opportunities for information to be more free than before, and for cultural delivery platforms to be diversified and vitalized.

The second part of that equation seems to have escaped Lessig and his followers, who went the slogan route and contributed to the carcicaturing of freelance writers' assertions of their rights to a fair share of the revenues generated by the electronic database companies -- the subject of our class-action copyright objections. And without that second part, we're left with the line from the old song by the Who: "Meet the new boss / Same as the old boss."