With the settlement effectively dead, do you have any sympathy for any of the players on the other side?
I sympathize with any of the plaintiffs' lawyers who might have intended to do the right thing in this case, as well as profit, but who found themselves overwhelmed by the legal firepower of the defendants. (If the shoe fits, wear it.)
I sympathize with the named plaintiffs who got manipulated by the lawyers into approving this mother of all sellouts. That sympathy is limited in light of analysis indicating that these inadequate class representatives stood to collect an obscenely disproportionate share of the puny $11-plus-million in claims payouts ($18 million less legal fees and notice/administration costs).
The same holds for the insiders and friends of the named plaintiffs and the associational plaintiff writers' organizations who might have "gamed the system" on the settlement's arbitrary and unexplained registration deadlines.
As for holders of unregistered, or "C," claims, no one in that category was getting rich. The argument that, for some, checks were a bridge for unpaid bills or career displacement has human and anecdotal weight. On the other side of the scale, the settlement would have permanently maimed the ability of independent creators and the public to realize some of the important benefits of new communications technology.
Even without the objections, those filing claims in large volumes never should have been counting their money, anyway, before the settlement administrator finished nitpicking them.
Finally, there's the settlement's devious "C reduction," which a close study suggests may already have wiped out a large chunk, or all, of the unregistered claims -- though no one is saying.
Do you presume to dictate exactly how a writers' royalty system would work?
I only know two things for sure. One is that Section 201(c) of the Copyright Act of 1976 devised a "doctrine of divisibility" for secondary rights to copyrighted works, for the express purpose of tweaking the balance of power between publishers and freelancers. The second thing I know is that the Supreme Court, in 2001 and by a 7-2 vote, confirmed that this section of the law and this principle applied, with bells, to the reuse on electronic databases of newspaper and magazine works, and suggested a royalty system as the solution.
Publishers simply ignored the law of the land before Tasini v. Times,
and even more arrogantly continued to ignore the law of the land after Tasini v. Times
. They sought to solve their prospective problem with naked market power, by shoving new all-rights contract language down the throats of contributors. On past infringements, they played the plaintiffs of this case better than Isaac Stern bowed a fiddle. Thus emerged the "license by default," which thumbed its nose at the High Court and turned on its head a decade-plus of hard work in this matter.
The structure of any royalty system must be the product of negotiations. And for sure, the ultimate format would not be identical to the music industry's ASCAP, since musical works have a different intrinsic value, as well as, in most cases, greater value over time than freelance newspaper and magazine content. Saying these things, however, is not the same thing as saying a royalty system is impossible. Even if large numbers of royalty payouts, for low-end works or for unidentified rightsholders, went into a general pot, that is much better than rewarding publishers until the end of time for stealing. (Such a general fund could be used to help organize creators or educate them on the business aspects of their work, or it could subsidize access for the underside of our "two-tiered information society.")
These are just examples, not prescriptions. What a reconstituted freelance settlement needs is more creativity, and less naysaying and Ludditism.