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.


Anonymous Moxie said...

OK, so let's suppose that the entire existing settlement (which covers pre-2001 works) is thrown out & a royalty system takes its place.

Since royalty systems pay small fees (often mere pennies) on a usage-by-usage basis, how could it compensate for past infringements?

Would we all have to scour the internet & attempt to find postings of our works & then somehow attempt to determine how many times someone actually clicked on them or read them or whatever?

And how would we establish the royalties for works that have now been removed from databases?

I understand how a royalty system could work for works created after a royalty system is in place (assuming that post-Tasini contracts that require a freelancer to give up future rights are found to be illegal), but I don't understand how it possibly could be used to compensate for past infringements.

Please explain.

6:02 AM  
Blogger Irv Muchnick said...

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.

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."

6:29 AM  

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