Thursday, December 18, 2008 Reports Our Speculation on Supreme Court's Academic Newswire shares with its larger audience the best guess -- originating with a commenter at this blog -- on what's up at the Supreme Court:

At Last! Supreme Court Decision on Tasini Settlement Expected—in 2009

Wednesday, December 17, 2008

Probably No Word From the Court Till '09

The anonymous comment in the post below is, I believe, accurate, so let's highlight it in a post of its own:

I called the Clerk's Office of the Supreme Court. The Court is on vacation until January 9, 2009. The Cert question is still being decided but the case has NOT been bound over for the next conference. A decision on Cert will not be released until at least January 9, according to what I was told.

Monday, December 15, 2008

Supremes: Still No Word

Our case is not on either last Friday's list of appeal petitions granted or today's list of appeal petitions denied.

Though it is not up yet, that means that soon, perhaps later today, the Supreme Court docket will show that we have been rescheduled for discussion at a future conference of the justices. This would mark the fifth time the freelance copyright class action petition for certiorari has been "distributed for conference" -- the sixth time if you include the original distribution, which was interrupted by a request from the Court for the objectors to respond to the settlement parties' briefs.

A quick study of Supreme Court dockets posted at its website shows that this length of deliberation on a cert decision has not been seen in the last two years.

Friday, December 12, 2008

Supremes: Nothing Today

The Supreme Court's Friday "miscellaneous order" list once again is silent on our case.

On to next week ...

Tuesday, December 09, 2008 Stays on the Case

"For Tasini Settlement, Supreme Court Wait Stretches On"
Library Journal Academic Newswire

Answer Man

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.

Monday, December 08, 2008

Tribune Company Bankruptcy

One of the core defendants of the freelancers' settlement case, the Tribune Company (LA Times, Chicago Tribune, et al.), has filed for bankruptcy. In the current economic climate, others may follow. What does this mean for us?

Experts (and I am not one, and this is not legal advice) tell me that freelancers are "creditors." In bankruptcy, first the equity is wiped out; then the creditors are lined up, senior to junior. Writers would be general unsecured creditors, more or less at the bottom of the ladder (as opposed to various secured creditors, such as banks).

Interesting related point: Any database company looking for indemnity from Tribune properties also becomes an unsecured creditor.

Supreme Court Non-Update Update

So now the Supreme Court docket lists our case for this Friday's conference -- December 12.

I will not speculate ... I will not speculate ... Anyone out there who sees me starting to speculate, please fire a cyber-taser.

I won't speculate, but I'll hope. I'll hope that the delay is being caused by the justices' trying to figure out exactly what questions to certify. And, for the fourth time, I'll be watching what comes out of the Friday conference.

Muchnick Interviewed by Library Journal

The Library Journal website has a new two-part interview with me about the freelance settlement case now at the Supreme Court. Here are the links:

The LJ Academic Newswire Newsmaker Interview: Tasini Settlement Objector Irv Muchnick (Part I)


Part II: The LJ Academic Newswire Newsmaker Interview with Tasini Objector Irv Muchnick

Still No Word from Supreme Court

The Supreme Court website this morning published an 11-page order list, and so far as I can tell, the freelancers' case is still not on it.

Friday, December 05, 2008

Supreme Court Vigil

When I last looked, the Supreme Court website listed only two "certs granted" today, neither of them our case. Perhaps there will be further word later today or on Monday.'s Andrew Albanese did a Q-and-A with me, and I'm told it should be posted shortly.

Wednesday, December 03, 2008

No Settlement Without the Unregistereds Would Bring 'Complete Peace'

Various questions have arisen as to how the process at the Supreme Court might affect the timeline of what a commenter on the previous post called "the payout phase."

For a full answer, you must remember that one of the explanations for the years of tangled mediation efforts was that the defendants were holding out for "complete peace" -- i.e., a reasonable expectation that the class-action settlement would define and end their exposure for decades of "alleged" infringement.

It is in that context that a settlement contemplated both by the parties and by the objectors includes copyrighted works that have not been registered -- an acknowledged 99-plus percent of the infringement universe. The publishers realize that any unregistered work is a potential registered work. True, the damages formulas are different if the registration isn't upon first publication or prior to the claimed infringement. But the shattering of the peace, especially at that volume of "potentiality," is there all the same. That is why those writers planning to buy boats with their anticipated scrawny claims awards should take a deep breath. From day one, this case was not about that, but about a complicated structure to settle slam-dunk claims of global infringement by the collective print and electronic publishing industry.

Tuesday, December 02, 2008

Supreme Court Update

The justices now have our case on the docket for their Friday, December 5, conference. The wait continues.

Monday, December 01, 2008

Muchnick Letter in Wall Street Journal

On Thanksgiving, The Wall Street Journal published, at least online, my letter to the editor in response to a recent "Information Age" column by L. Gordon Crovitz. (I have not yet figured out whether the letter also ran in the WSJ print edition.)

The November 17 Crovitz column, headlined "Markets Declare Truce in Copyright Wars," can be viewed at

My November 27 letter, headlined "Freelance Copyright Battle Looms," is at