Wednesday, March 18, 2009

Analyst Ponders Freelance Settlement Development Vis-a-Vis Google Book Settlement

C.E. Petit, who has a blog called Scrivener's Error, has an interesting take on the Supreme Court's grant of cert in the freelance settlement and how that does, or should, impact the Google book settlement.

Much too complicated to summarize and I won't try. Those interested should go to
and scroll down to the 11 March 2009 entry headlined "Google Library Project Settlement (tangent): Suspended Animation?"

Tuesday, March 17, 2009

Value of Electronic Databases Is in Their Integrity

In an afterthought email exchange with me following the posting of her latest comments, co-objector Anita Bartholomew hit another bullseye that I'd like to run with:

The market value for a database is in the scope of offerings more than in any individual component. That's a large part of why the big box stores of Barnes & Noble attract more customers than the small local bookseller and Amazon attracts more than a Barnes & Noble store. Since the scope of the databases is in large part due to theft, shouldn't those stolen from, who are being asked to leave their property in the thieves' hands, share in the value of keeping it whole?

Anita's observation takes me back to the very beginning of the electronic rights struggle, 1994-95. At National Writers Union board meetings, we used to discuss how our individual and collective complaint letters to database companies often had the odd consequence of simple deletion from the database of the disputed works. This was usually done by the infringing companies without explanation, either to the rights holders or to information consumers. We mused aloud that this phenomenon was turning the databases into "Swiss cheese." We actually used that term. Years later, after the Supreme Court ruled in Tasini, print and electronic publishers started announcing that they were being "forced" to expunge precious data from "the historical record." In truth, they had been doing so surreptitiously for years, whenever someone called them on their illegal practice of stealing surreptitiously. Needless to add, LexisNexis and other database companies did not offer refunds or discounts to libraries or end users who were paying stiff fees -- some blanket-subscription-based, some time-based, some download-based -- for access to an "historical record" that was becoming "Swiss cheese."

Barbara Quint of Information Today wrote an insightful article about all this in 2001 under the headline "Stop the Trash Trucks -- A Tasini Case Damage Control Proposal." The link is

Barbara did not know the entire history of "Swiss cheese" and Information Today later published my letter to the editor:

Ms. Quint is right to insist that the information community hold database aggregators' feet to the fire by demanding an accounting of deleted content. This, however, is not a new problem brought about by the latest round of litigation results. As long ago as 1994, I was part of a writers union campaign called "Operation Magazine Index," through which we confronted, among others, Information Access Company (now Gale Group). Our experience was that when authors, individually or collectively, questioned the offering of their works in for-profit products, the operator simply deleted those articles. Sometimes the person registering the complaint was so informed; however, users never were. Indeed, this was a source of some frustration for us, since our objective was to spur comprehensive negotiations, not to turn databases into undisclosed Swiss cheese. We overestimated the conscience of the putative keepers of the historical record when it came to maintaining its integrity.

In the wake of Tasini, information consumers need to know that writers are not the enemy. There was a new revenue stream from which only publishers profited, without the permission of the rightsholders. We thought that was wrong, and Ruth Bader Ginsburg, Antonin Scalia, and five other justices agreed. As the American Library Association recognized, there is ultimately an overall benefit to public access in giving individual creators, as well as large corporations, the right to exploit previously published works in new media. Far from feeling compelled to charge every kind of user for every bit and byte, we are now simply free to choose to give our stuff away in appropriate circumstances -- but from a foundation of dignity and respect.

Again: The value of a database consists, in part, in its integrity, its comprehensiveness. The settlement offers crumbs to a tiny percentage of the infringed who were well connected enough to get wind of the settlement and who, with narrow vision and flat feet, believe it is a good deal (certainly for them, and they apparently don't think it matters whether it's a good deal for everyone else). But the settlement does nothing but harm to the promise of new technology both to empower freelance creators and to broaden the scope of public access.

More Thoughts from Co-Objector Anita Bartholomew

In the comments log two posts below, co-objector Anita Bartholomew tackles the opinion of the anonymous "Moxie."

Anita is the most articulate and legally savvy critic of the license-by-default outrage of the freelance settlement. Her words deserve their own dedicated post, and are reproduced here.


Moxie's premise seems to be that it's okay to give away the future rights of countless writers for nothing because those rights are worthless.

First, if future rights are worthless, why have the databases and publications spent $millions trying to acquire them through the defense of the original lawsuit? Why don't they just give in right now, rather than spending perhaps more $millions in legal fees to hang on to all that worthless content?

Second, the value of the FUTURE use of the property is not an issue in the original lawsuit. FUTURE use shouldn't be part of this at all as that would concern entirely different property rights.

Plaintiffs' attorneys went beyond the scope of the complaint (about past infringement), appropriated future rights of all writers of covered works forever unless owners affirmatively demanded otherwise.

The Plaintiffs' attorneys had no authority to appropriate and distribute future rights that were not part of the lawsuit.

Third, the now-overturned settlement proposes to give the Defendants the rights to use the works in the databases in all the ways that a copyright owner may, per Chapter 17, § 106, "Exclusive rights in copyrighted works," (see:, not just the right to re-print.

For example, it appears that the original author's name could be removed and a new author's name could be inserted. Or, a Defendant or Participating Publisher could combine several articles to create a new one. While this is unlikely to occur with stories that are no longer timely, magazine stories (a considerable chunk, and possibly the majority of articles involved), are often "evergreen" -- stories that never go out of fashion.

Last (for now), Moxie may not be aware that Reader's Digest has just launched two new magazines that will consist entirely of recycled magazine articles from other publications -- yes, "evergreen" articles to which it owns the rights under work-made-for-hire agreements. It's unclear how far back they will reach for such articles but, when it comes to magazine stories, some simply never get noticeably old. With a word change here or there, it's unclear when the pieces were originally written (which is why some magazines keep "inventoried" articles for years prior to publishing them).

Monday, March 16, 2009

Supreme Court Watch: What's Next

The Supreme Court docket shows that the petitioners' (defendants and plaintiffs') brief is due May 18. The respondents' (objectors') brief is due July 17.

The question before the justices -- subject matter jurisdiction for unregistered copyrights -- reflects more of a victory for the objectors in the petition process than is generally recognized. Since this is highly technical terrain that I, frankly, don't fully understand yet myself, I'll have a fuller explanation later. But basically: There are two categories of the subject matter jurisdiction question. The petitioners asked the Court only to look at the first type; the respondents also asked the Court to look at the second type; and the Court framed the grant of certiorari in a way that will hear both types.

Another intriguing open issue is who will argue the position of the Second Circuit Court of Appeals that the federal courts have no jurisdiction over settlements involving unregistereds. The appellate ruling was sua sponte, or on the court's own initiative, not at the behest of one of the adversarial parties. I'm told that in such situations the Supreme Court, or the Second Circuit itself, might appoint an advocate for the lower court's position.

Friday, March 13, 2009

What the Freelance Settlement Objections Are All About

A blog commenter who goes by "Moxie" distinguishes himself or herself from others not in agreeing with me -- he is wrong about the settlement -- but in at least doing the work to understand the settlement while he misguidedly defends it.

This morning he posted a new comment, and it's another opportunity for all of us to reflect on what this dispute is really about. Below, in bold, is Moxie's comment. Below that is my response.



You said, incorrectly:

"A prospective royalty system cannot compensate for past infringement. Unfortunately, the settlement as written gives away prospective rights (via the license-by-default) as a condition for compensating claimants -- and not very well -- for past infringement. That is the crux of the objections."

In truth, the settlement has two components: One part of the formula provides compensation for past infringement (which, as you've said, cannot be address in a royalty system) & only for past infringement; it does NOT give away future rights. And the second component makes an offer to compensate for future use (in effect, to "buy" the rights); it contains an opt-out clause for those who want to retain future rights (via, perhaps, a royalty system).

And then you wrote:

"The logistics of a royalty system would, indeed, be complicated.
Complicated but doable. There are a number of ways to skin this cat other than the settlement's way -- which is basically paying off a handful of the infringed insiders for pennies on the dollar, while simultaneously stealing billions of dollars in collective revenues from future products that would be illegally sanitized by the default license. Or, as the Supreme Court put it in Tasini, there are "numerous models."

Just who, esactly, are these "infringed insiders"? Thousands of us filed claims.
Are the thousands of us the "infringed insiders"?
If not, what the heck are you talking about?

And, you keep forgetting that all of the works covered by the settlement were written prior to 2001. You might think that future use of these is worth "billions"; I happen to think that most of these works are now outdated and worth about zero. And for those very few that still have market value, the "opt-out" could have been used.



Moxie dutifully, and somewhat faithfully, recites the provisions of the settlement that seek to make it an airtight container of the class action it is trying to resolve. The lawyers on all sides have been firing away, and will continue to fire away, exposing each other's technical mistakes, large and small.

But I'd like to challenge Moxie's underlying assumption: that the settlement, even if clerically airtight (which it most certainly is not), is fundamentally legitimate.

Moxie is correct that more than just the few disproportionately rewarded named plaintiffs and their insider cronies stand to collect money under the settlement. We don't know the numbers, but surely some thousands of others have also filed for claims ranging from the token to the somewhat better than nothing.

Is that the point?

I said that Moxie's account, technically, is close to being faithful. Where it falls short was well put by objectors' attorney Charles Chalmers at the time of the Second Circuit's odd ruling to vacate the settlement on jurisdictional grounds:

"The C class, not to mention the much better paid B and A classes, were only getting compensation because they purported to bargain away the copyrights of those freelancers, from virtually every country in the world, who did not receive notice of the settlement, or understand what it was doing. The objectors found this to be an unprincipled action, and they are pleased that for whatever reason it will not happen."

That is a powerful point, which Moxie seems not to grasp.

Nor would I stop there. The settlement also arose in a context. That context was the 1976 revision of the Copyright Act (and its policy background and legislative history) and the 2001 decision of the Supreme Court in Tasini.

By written contracts, and more importantly by industry custom and practice, freelance journalists throughout history had controlled and profited from secondary rights. Prior to the emergence of new technologies, those secondary rights mostly involved things like syndication rights and anthology rights. The question now became: Was it in our society's best interest for freelancers also to have the real-world ability, not just the abstract opportunity, to exploit electronic database and related digital rights?

I do not think it is intellectually honest to read the plain language of Section 201(c) of the Copyright Act and conclude that the answer to that question is anything other than "yes."

In 1993 -- 1993! -- Jonathan Tasini began working long and hard to put that question before the courts. And by a vote of 7-2, the Supreme Court justices in 2001 agreed with the freelancers. Antonin Scalia agreed with the freelancers. So did Ruth Bader Ginsburg, who made reference to a royalty system solution. You couldn't get a more across-the-board victory for writers than Tasini.

Yet at that point, the publishing industry, with its collective market muscle and lawyered-up firepower, essentially said, "We don't care about the stinking law of the land. We can write a new contract that forces freelancers to give away rights that Congress and the Supreme Court clearly intended for them to have, and we can set aside a pot of peanut shells to make our past infringement go away, while using tiny-print legalistic tricks to create the illusion that a small percentage of the class can sign off on a comprehensive global deal for the future on behalf of millions of absent class members the world over, and can sell to the global community of information users that the problem has been solved."

On that one, Moxie, I say: "No sale." That is why I intervened as an objector early in 2005 and that is why I am still fighting the settlement today.

When all is said and done, it may be that a class action settlement is not the proper container for a comprehensive solution. The Tasini decision said that, if necessary, the courts and Congress could help in the design. As far as I and many others are concerned, that design would include a prospective royalty system, not a license-by-default giveaway that makes a mockery of everything our public institutions have said about the logic of concentrating all of our intellectual property rights in the hands of a few corporate entities.

If it makes you feel better, nitpick and complain about the objectors to your heart's content. We are not going away. And now we're back at the Supreme Court, which just may have a thing or two to say about how their clear intent eight years ago has been perverted in the interim.

Thursday, March 12, 2009

Flashback to a Flashback

The item below was originally posted to this blog on January 6, 2008, under the headline "FREELANCE RIGHTS Flashback: 'Promised Bang Could Be a Whimper.'" The content itself was first written more than four years ago.

By January 2005, my email exchanges with Spencer Hosie, co-lead plaintiffs' counsel in the consoliated class action copyright infringement mediation talks, had convinced me that the settlement that was about to be announced was a pig in a poke. Five years earlier I had consulted on the launch of the first of the cases that wound up being consolidated. All this background is explained in my July 2005 declaration in support of the objections to the settlement,; see in particular the 37th and final paragraph.

Before finding attorney Charles Chalmers and organizing a slate of objectors -- who now stand on the brink of scuttling the settlement before the Second Circuit Court of Appeals -- I wrote an article explaining what I intended to do and why I was doing it. The essay was submitted, without success, to many trade publications. The text is below.


The Promised Bang of the Upcoming
Copyright Class Action Settlement for Authors
Could End Up Being a Whimper

All of you haven’t forgotten, have you, the huge landmark copyright class action case to redress freelance writers for the systematic piracy of their previously published works by for-profit database companies?

The sad truth is that I can hardly remember that lawsuit myself. And I’m the person who launched the darn thing nearly five years ago.

On the cyberstreet, the word is that this hydra-headed
monster, a consolidation of copycat cases now known as
In re Freelance Works in Literary Databases Copyright
, Multi-District Litigation No. 1379, Judge
George M. Daniels, Southern District of New York, is
to settling. Then again, that’s been the word
almost from the get-go. Two major authors’ organizations
– the National Writers Union and the Authors Guild –
have pieces of the action. Every once in a while I
check the latter’s website, with results reminiscent of
the Bill Murray movie Groundhog Day. Here’s the Guild’s
February 2005 “update”:

Authors Guild Lawsuit Against Major Databases in Mediation
The class-action lawsuit filed by the Guild, ASJA and
several writers alleging massive copyright infringement
of freelance articles by major electronic databases,
including Lexis-Nexis, Dow Jones Interactive, Dialog and
others, is now in court-ordered mediation.

Others who have pieces of In re Freelance Works – and
thereby stand to share in many millions of dollars in fees
whenever they can finish their Kabuki dance with the
defendants and their insurers and indemnifiers, and then
persuade the judge to approve the settlement – include
three distinct teams of plaintiffs’ attorneys. To give you
an idea of the strange bedfellows found in litigation land,
one team paired the general counsel of the United Auto
Workers, parent of the National Writers Union, with a guy
named Gary Fergus, whose previous claim to fame was his
role in counseling Enron on those notorious memos plotting
the manipulation of
California energy markets.

Indeed, the folks with fingers in the pie of authors’
copyright class actions, that briefly hot sub-discipline of
the lawyering dodge, run the gamut from Enron to the
company’s very own book-cooking, and now defunct,
accounting firm, Arthur Andersen. In 2000 the first-ever
copyright class action on behalf of authors, Ryan v. CARL,
settled for $7.25 million, including $2.9 million to the
attorneys; Andersen skimmed an additional $500,000 off the
top for doing practically nothing as “settlement claims
administrator.” (That is, unless you define doing something
as erroneously rejecting a number of legitimate
infringement claims and failing to list dozens of others on
the public online claims database.)
As Mencken might have put it, no one ever went broke
underestimating the altruism of lawyers. Yet even if the
esteemed advocates of In re Freelance Works, the first
important writers’ rights case of the 21st century, actually
have their clients’ best interests at heart (as I believe
many do), the passage of time and the accompanying
realignment of interests conspire against a happy ending.
In the absence of a stunning reversal, the settlement is
certain to whiff on its threshold challenge: creation of a
comprehensive and equitable industry-wide regime of
prospective secondary-rights management.
Without a legal leg to stand on, but armed to the teeth in
the tools of attrition, publishers are only too happy to
greet a denouement consisting of a single large check to
make those pesky writers and their mouthpieces go away once
and for all. In the interim, the industry successfully
shoved down the throats of most of its freelance
contributors all-rights and work-for-hire contracts that
henceforth will allow it to take through the front door in
broad daylight what used to get slipped onto the freight
elevator in the dead of night.
Which is why, if the settlement winds up reading more or
less as I expect, I intend to use my standing as a member
of the plaintiff class to object at the fairness hearing
before Judge Daniels. If necessary I’ll organize a “counter-
class” of objectors. Whether it’s next week, next month, or
next year, I’ll hope that a display of dissidence
sufficiently unnerves the court and the parties to the
point where they conclude they have to reset the mediation
and knock their heads together still more. And this time
bring everyone inside the tent.
Of course derailing a major settlement is no easy sell.
Some experts go so far as to call it quixotic. Most notably,
if successful, the effort would leave tens of millions of
dollars in infringement claim settlements on the table,
making any objector, at least initially, less than wildly
popular with fellow writers. (In reality, this isn’t such a
big deal; on an individual basis, these awards tend to track
the pay scale of our common chosen profession – something
approximating minimum wage.) But that doesn’t faze me. The
same experts were saying similar things back in 1997, when I
was shopping an innovative lawsuit against an article fax
delivery service called UnCover to class-action law firms in
the Bay Area – a suit that turned into the aforementioned
Ryan v. CARL.
In 2001, the year after Ryan settled, the U.S. Supreme Court
issued its crucial ruling in Tasini v. New York Times, a
case brought nearly eight years earlier by Jonathan Tasini,
then president of the National Writers Union. By a 7-2 vote,
spanning Antonin Scalia to Ruth Bader Ginsburg, the justices
determined that there was, after all, nothing ambiguous about
Section 201(c) of the Copyright Act. The statutory default is
that republication rights of individual articles, whether
print or electronic, belong to the freelance writer, not to
the first-print publisher. Period.
“The Publishers’ warning that a ruling for the Authors will
have ‘devastating’ consequences, punching gaping holes in the
electronic record of history, is unavailing,” the High Court
said in the most pointed passage. “… The Authors and
Publishers may enter into an agreement allowing continued
reproduction of the Authors’ works; they, and if necessary
the courts and Congress, may draw on numerous models for
distributing copyrighted works and remunerating authors for
their distribution.”

In the wake of the combination of the Tasini decision and the
class action success, I believed that marketplace
solutions were at hand. I thought the second class action I
packaged, Posner et al. v. Gale Group et al., filed in August
2000, stood a fighting chance of spurring the missing reform
of the information revolution: a genuine and equitable
royalty system analogous to the music industry’s ASCAP.
(While on the staff of the writers union from 1994 to 1997,
I had started a fledgling collective-licensing agency called
Publication Rights Clearinghouse, which was quickly followed
by the Authors Guild’s Authors Registry.) Now the Supreme
Court itself was inviting such an approach, and the Damoclean
sword of punitive damage awards for past infringements would
seemingly motivate publishers to negotiate in good faith at
But I was wrong. I failed to account adequately both for the
breathtaking arrogance of the publishers and for the awesome
imagination deficit of the lawyers.
The former manifested itself in actions by The Times and
others to purge electronic archives of material they’d never
had the right to license. These turned article databases and
the historical record into “Swiss cheese.” Sometimes the gaps
were disclosed to information consumers, sometimes not; but
in any event all attendant imperfections were duly blamed on
Tasini. (Right: The Supremes merely said that publishers
“may” enter into agreements with authors allowing continued
reproduction, not “must.”)
As for the lawyers, at the beginning of the second round of
authors’ copyright class actions they were full of the usual
self-promotional blather about a public-interest breakthrough.
The silence of the ensuing half-decade, however, has been
ominous. Today it’s vital for the creator community, as well
as for librarians and information professionals, to understand
that this mother of all class actions morphed into a bad deal.
Bad for us. Bad for you. Bad for the vitality and diversity of
our culture in the digital age.
For in retrospect it’s apparent that publishers, by and large,
were never seriously interested in negotiating. The proof is
in their two favorite tactics of the copyright class action
era. First, by using their full leverage, including the hiring
blacklist, to impose contracts that thwart the spirit of the
Copyright Act of 1976 and the Supreme Court ruling of 2001,
they were saying in effect: Sure, our claim-jumping licensing
practices in the eighties and nineties were about as wholesome
as a round of three-card monte on a Times Square sidewalk …
but, presto, no more, that’s all in the past!

Their second tactic – thumbing their collective nose at the
future – is the one that really sticks in my craw. Even as
mediation has dragged on for half-a-decade, publishers and
their database partners, like settlers in occupied
Gaza, have
created new “facts on the ground.” These colonialists go by a
variety of new models, such as HighBeam, KeepMedia, and, and boast content from Gale/Thomson, one of
the class-action defendants. Blatant and willful infringers
all, they’re revoltingly confident that the ultimate
settlement will simply grandfather in their outlaw ways. So
confident that they didn’t even bother to wait for a judge to
approve the settlement before boring full-speed ahead.
Meanwhile a multimillion-dollar check to “settle” “claims” of
past wrongdoing constitutes the most prosaic cost of business
– the outrageously antidemocratic business of hoarding
“intellectual property for me but not for thee.”
My friends, only one outcome from Multi-District Litigation
No. 1379 could begin to justify the forests that were
denuded, the thousands of hours of paralegal time that were
squandered, and the feeble redistribution of funds that was
exacted. No anti-lawyer ideologue am I. There’s genuine value
in litigation … and in legislation … and in organizing and
labor action. Each has a role to play in improving our world.
At this juncture of information industry and legal history,
though, fair-minded observers will conclude that the
litigation card was overplayed. Resisting a glib settlement
of the class-action copyright litigation is the first step
toward restoring a proper balance.

Wednesday, March 11, 2009

UnSettlement Insiders Are Threatened by a Royalty System -- But the Class Isn't

As the Supreme Court's consideration proceeds, one of the most revealing phenomena is the screechy resistance to a royalty system from the UnSettlement/sellout defenders.

Some of this can be explained prosaically, as lack of imagination. Some people, including some truly downtrodden, if chronically narrow-visioned, freelance writers, just don't understand the fuss. The publishing industry has shoved all-rights contracts down most of our throats. And publishers propose to clean up their pre-Tasini paperwork problem by doling out a few nickels and dimes. What do you want -- blood?

Not blood, folks, just a reasonable system that doesn't turn Section 201(c) of the Copyright Act, as well as the 2001 Supreme Court decision affirming it, on its head.

No one can seriously argue, from a policy perspective, that the purpose of the Tasini decision was clerical. The legislative history behind the most recent Congressional revision of the Copyright Act, in 1976, showed an awareness of the impact of new technologies (though few, of course, realized the full implications of CD-ROMs and the Internet per se). The purpose of the "doctrine of divisibility" of rights was to empower independent creators, so that all information and culture wouldn't be delivered and controlled solely by corporate entities. This was and is deemed an overall good thing for our society.

So if your argument is that you want your $12.97 in claims (or, in the case of some class action system-gamers, a good bit more) and you want it now, then go ahead and make it.

Just don't try to bully the rest of us into believing that there aren't larger principles at stake.

Tuesday, March 10, 2009

Information Today Writer Fires Back: 'The Issues Are Not Moot'

A reader commented below Carol Ebbinghouse's fine article at Information Today's NewsBreaks that "this argument is moot." Not so, Ebbinghouse persuasively countered, reemphasizing the need for a fair royalty system.

Once again, the link is:

"Supreme Court to Review Jurisdiction in Freelance Writers Case ‘Settlement’"

Monday, March 09, 2009

Information Today on the Supreme Court and the 'Settlement' (Their Quotation Marks)

Information Today, a leading trade magazine, has published a "NewsBreak" by Carol Ebbinghouse headlined "Supreme Court to Review Jurisdiction in Freelance Writers Case 'Settlement.'" The link is

Ebbinghouse wrote the prescient October 2005 report "We've Not Seen the Last of the Copyright Class Action" (

I very much appreciate that Info Today seems to get what should be the ultimate solution, which Ebbinghouse describes as "a settlement that is just and fair for all—fair for all freelance writers, freelance photographers, and other creators whose works are being copied and sold over and over through websites and databases, CD-ROMs, downloaded audio files, etc.; fair for researchers and other information users, who want access to all of the works published in every issue of periodicals." She goes on to define that solution as a royalty system, rather than the license-by-default rights grab of this "settlement" (the ironic inverted commas around "settlement" are hers).

The article has a few mistakes:

* Though Reed Elsevier v. Muchnick is certainly "son of Tasini," it is not a rerun of the Supreme Court's 2001 Tasini v. New York Times case per se. The freelance copyright settlement was a consolidation of three lawsuits independently filed in the summer of 2000, and Jonathan Tasini, then president of the National Writers Union, had nothing to do with any of them. The NWU, the Authors Guild, and the American Society of Journalists and Authors are not "parties represented by" Tasini, but so-called associational plaintiffs, which assisted in promulgating the "settlement."

* The other objectors and I are not exclusively members of the C, or unregistered, subclass. A number of us have registered works, making us also members of the B, and in some cases, A subclasses, as well.

* The objectors did not appeal the Second Circuit's jurisdiction ruling to the Supreme Court. The petitiioners of that appeal are the settlement parties: the defendants and the plaintiffs. At the invitation of the Court, the objectors, or respondents, filed a brief supporting the petitioners' position on this question, and raising a couple of related points.

Overall, a thumbs-up to Ebbinghouse and Information Today for once again zeroing in on the essence of this dispute and its implications for the public at large. Let's hope this article helps move events in the right direction.

Friday, March 06, 2009

Letter on Roy Blount Jr.'s Kindle Essay -- Not Fit to Print in The New York Times

To the Editor:
Roy Blount Jr. is an old friend -- we won the same college sportswriting scholarship and he kindly blurbed my first book. I therefore am pained to say that, though he makes the right points about the authors' rights deficiencies of the current revenue-sharing scheme for audio books, his Authors Guild is on the wrong side of a case involving the identical principle for freelance journalists ("The Kindle Swindle?", Op-Ed, Feb. 25).
In 2005, the guild and two other writers' organizations -- the American Society of Journalists and Authors, and the National Writers Union -- brokered a settlement in federal district court of a class-action copyright suit against the newspaper and periodicals industries, and their electronic database partners, over unauthorized and uncompensated reuse of the works of freelancers. This suit stemmed from the historic victory of writers in the 2001 Supreme Court decision Tasini v. New York Times.
I lead a slate of objectors who appealed the class-action settlement. We believe the settlement's "license by default" provision is illegal. Most fundamentally, I object in words that could have been cribbed from Roy Blount, who wrote that "authors have a right to a fair share of the value that audio adds." Just substitute "electronic rights add" for "audio adds."
The Second Circuit Court of Appeals overturned the settlement on technical jurisdictional grounds. Both the parties and the objectors have asked the Supreme Court to reverse that ruling -- in our case, because we want to go back and argue against the settlement on the merits.
Irvin Muchnick
Berkeley, Calif., Feb. 25, 2009

Thursday, March 05, 2009

Freelance Copyright Settlement -- On to the Supreme Court

[originally published at Beyond Chron, at]

The Supreme Court has agreed to review a ruling by the Second Circuit Court of Appeals, which had invalidated a settlement of a global class action copyright infringement suit on behalf of freelance journalists against the combined newspaper and periodical industries and their electronic database partners.

This new development sets up the possibility that the High Court will reinstall the settlement by reversing the Second Circuit's holding that the federal courts have no jurisdiction over settlements involving copyrights not formally registered with the Copyright Office.

But for the slate of objectors to the settlement, including myself, the intervention of the justices also holds out another possibility: that the settlement as structured will be overturned on its merits after being reinstated for consideration by the Second Circuit.

Confused? Don't be. It's just another day in the life of the high-tech legal frontier. For my perspective, see my blog Freelance Rights ( The settlement case, which stemmed from the victory of writers in the 2001 Supreme Court decision Tasini v. New York Times, now is known at the High Court as Reed Elsevier, Inc., et al., Petitioners, v. Irvin Muchnick, et al., Respondents.

In 2005, the Authors Guild, the American Society of Journalists and Authors, and the National Writers Union brokered a settlement totaling $18 million, including legal fees and costs, to cover decades of infringement of freelancers' works on LexisNexis and hundreds of other new digital products. In Tasini, the Supreme Court had affirmed the principle of Section 201(c) of the Copyright Act that a freelance contributor (as opposed to a newspaper or magazine staff member) licenses by default only one-time rights to the publisher.

In the years since Tasini, publishers have responded by shoving all-rights contracts down the throats of most freelancers. And to clean up the toxicity of past infringement, the industry in this settlement threw out bones as little as $5 each -- as though willful and systematic theft of freelancers' works were the same as a defective electric toothbrush.

The three writers' organizations caved to the demands of both the publishers and the handful of named plaintiffs and their cronies, who would scoop up outrageously high proportions of the puny settlement fund. (In this universe of infringements, more than 99 percent of the copyrighted works were not registered -- millions of individual articles written on a freelance basis for English-language newspapers and magazines, large and small, the world over, as well as encyclopedias and many other types of "collective works.")

As a former National Writers Union official who had introduced both the concept of collective licensing and the litigation designed to bring publishers to the table to negotiate such a solution, I believe that the formula most in the interests of freelance creators, information consumers, and the entire architecture of a diverse and vital culture would be a royalty system loosely modeled on the music industry's ASCAP. That, indeed, is the model embraced for book authors by the Authors Guild and the Association of American Publishers in their recently announced settlement with Google's book-scanning project. That was also a prescription floated by Justice Ruth Bader Ginsburg and others of the 7-2 Supreme Court majority in Tasini.

In its Tuesday coverage of the Supreme Court's grant of cert in Reed Elsevier v. Muchnick, The New York Times distorts what the Tasini court said about this.

The Times reports that the 2001 decision "seemed to contemplate and even encourage a settlement of the case, saying that the parties 'may enter into an agreement allowing continued electronic reproduction of the authors’ works.'" The Newspaper Of Record would like everyone to believe that the Court already put its imprimatur on what I've dubbed the UnSettlement.

Here, in full context, are the relevant words of that eight-year-old ruling:

The Publishers’ warning that a ruling for the Authors will have ‘devastating’ consequences, punching gaping holes in the electronic record of history, is unavailing ... The Authors and Publishers may enter into an agreement allowing continued reproduction of the Authors’ works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution.

The Court will hear this new case in the fall.

Irvin Muchnick is author of Wrestling Babylon and the forthcoming Chris & Nancy: The True Story of the Benoit Murder-Suicide and Pro Wrestling's Cocktail of Death. Website:

Tuesday, March 03, 2009

Library Journal Calls Freelancer Case 'Digital Era's Defining Legal Drama'

Andrew Albanese of calls the Supreme Court's upcoming review of the freelance settlement "yet another twist in what may turn out to be the digital era's defining legal drama":

"Tasini Case Goes Back to the Supreme Court"

How The New York Times Covered It

"Supreme Court to Revisit a Case on Breach of Copyright," reads the headline in the business section of today's New York Times. The full story by reporter Adam Liptak can be viewed at

The Times notes that the 2001 Supreme Court decision, Tasini v. Times, "seemed to contemplate and even encourage a settlement of the case, saying that the parties 'may enter into an agreement allowing continued electronic reproduction of the authors’ works.'"

What an odd and out-of-context quote. Here is exactly what the Court said:

The Publishers’ warning that a ruling for the Authors will have ‘devastating’ consequences, punching gaping holes in the electronic record of history, is unavailing.... The Authors and Publishers may enter into an agreement allowing continued reproduction of the Authors’ works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution.

Monday, March 02, 2009

Early Coverage of Supreme Court Development

Both MarketWatch and The BLT: The Blog of Legal Times have covered the Supreme Court's announcement this morning that it will review the Second Circuit's decision to throw out the freelance copyright class action settlement on jurisdictional grounds.

See the links below. The BLT piece, by veteran legal journalist Tony Mauro, is the stronger of the two, correctly noting:

The high court, in granting review, re-worded the question presented to encompass only whether 17 U.S.C. 411(a) restricts "the subject matter jurisdiction of the federal courts over copyright infringement actions." The case will be argued in the fall.

MARKETWATCH: High court to look at U.S. copyright law

THE BLT: Supreme Court Grants Copyright Case





The petition for a writ of certiorari is granted limited to
the following question: Does 17 U.S.C. §411(a) restrict
the subject matter jurisdiction of the federal courts over
copyright infringement actions?