Tuesday, March 03, 2009

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

Andrew Albanese of LibraryJournal.com 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"


Anonymous Moxie said...

Expanding upon what this article says about what will happen next:

1. If the Supreme Court upholds the Circuit, then yes (as been widely said previously), the settlement is effectively dead because the publishers won't want to settle with just the registereds.

2. If the Supreme Court reverses the Circuit, they could at the same time affirm the settlement, since they have already declined to review the Objectors' additional question. (But we don't know if they did that because they find no merit in the Objectors' question or if they consider it premature to their ruling on the Cert question that they rewrote & granted.)

If they reverse but don't affirm, it likely would go back to the District, where the District would have to review the objections that it previously had refused to hear.
But here's where it gets sticky: Has the Supremes' previous cert denial (of the objections) effectively killed any chance of future review being granted by the Supreme Court?

4:32 AM  
Blogger Irv Muchnick said...

The comment above is inaccurate in asserting that the Court has denied cert of the objections. The settlement parties petitioned for cert on the jurisdiction question. The Court then asked the objectors' attorney, Charles Chalmers, to file a brief, in which we proceeded to support the parties' position on jurisdiction and make some other closely related points.

6:04 AM  
Anonymous Moxie said...

The Court granted cert, but specified that it was only on their rewritten version of Question 1.

Thus, by default, they have declined to grant cert on the second question and/or the objectors' additional question.
It is correct that they did not formally deny cert for these two questions. But, effectively, that is what they did by granting review only to the first question and not mentioning other questions presented.

Irv, can you explain by what measure you could say the objectors' "additional question" is still alive as far as the Supreme Court is concerned? (Other than, perhaps, the Supremes want the District to take another crack at it)?

6:25 AM  
Anonymous Moxie said...

Also, Irv, my post did not say the Supremes had "denied" cert for the objectors' question. I said they "declined" to review it, which is different from a denial of cert.

Please be accurate.

6:28 AM  
Blogger Irv Muchnick said...

Moxie wrote in the final paragraph of his original comment of "the Supremes' previous cert denial (of the objections)..."

I then wrote, "The comment above is inaccurate in asserting that the Court has denied cert of the objections."

Moxie now says, "[M]y post did not say the Supremes has denied cert of the objections."

Go figure.

6:54 AM  
Blogger Linda said...

So, where does this leave people like me, who have hundreds of works that would have been covered by Tasini? I didn't ever register any of the stories I wrote for Newsday and the NYTimes with the copyright office.

I might also add that when I contacted the Tasini lawyers in 2007 (I hadn't heard about the settlement before then) they told me I was out of luck because I hadn't contacted them earlier.

It sounds like the entire settlement may be brought into question.

10:34 AM  
Blogger Irv Muchnick said...

Linda is certainly correct that the entire settlement MAY be called into question. All we can say with certainty at this point is that the Supreme Court will review the Second Circuit ruling that the settlement is invalid because it included unregistereds, and that the justices will hear further arguments around October.

11:01 AM  
Anonymous Moxie said...

There appear to be only two scenarios in which the "entire" settlement would be brought into question:

1. If the Supreme Court upholds the Circuit's ruling that all works had to be registered (which wouldn't help Linda, since she says she didn't register); as everyone has noted, this likely would kill the entire settlement.

2. If the Supremes reverse & send it back to the Circuit & then the Circuit rules in favor of the objectors on the issue of inadequate representation of the C claims; this could cause renegotiation with a set a lawyers for each class. But since all the class participants are already established in categories through claims that already are filed (with some, like myself, in both A and C), this likely would mostly affect the dollar figures for each class (and possibly an alteration of the opt-out process). There would be no need to throw the entire settlement out & start from scratch. And I don't know why any such alteration would allow new class members to join the settlement at this point. After all, without the registration deadlines that are present in all class actions, it would be impossible to ever have a case finally settled. It would be chaos.

10:16 PM  
Blogger Linda said...

Well, I gotta tell you, I have been contacted by lawyers in numerous class actions suits (against, Honda, Sears, etc.) and they all made a good faith effort to get all possible participants notified.

There's no question that I would have been easy to find. My stuff from Newsday (which I downloaded and printed out in the 90s) was online for years. And there's a lot of it.

I don't know how the Tasini lawyers went about trying to make contact with writers, but I suspect they didn't make much effort, since I didn't see anything about this settlement. And I don't exactly live in a cave.

6:57 AM  
Anonymous Moxie said...

IIRC, every defendant publisher who employed freelancers during the relevant period (pre-2001) was supposed to provide names & last known addresses to the lawyers handing the settlement. Publishers also had lawsuit info on their web sites; Chicago Tribune put a box to click for info right on the front page of the web site.
So if you didn't get notified, perhaps the fault lies with Newsday.

8:20 AM  
Blogger Linda said...

I'm sorry, but if you're a law firm putting together a class action suit, you should be the one to find the members of the class.

The way that settlement was worded (when I finally got a chance to see it - only after I started doing research on the whole issue of copyright because I'd developed a problem with another publisher illegally using my writing) it was to benefit only a small group of writers.

As I said earlier, in other class action suits, lawyers for the class in question found me.

I'm not impressed by this group's motives.

8:38 AM  
Anonymous Moxie said...

Correct, the lawyers should find the class. So they asked the publishers to give them lists of freelancers they had employed. How else would the lawyers have been able to find you?

In the case of the settlements you got from Honda & Sears, the lawyers likely contacted you. And why was that? Because Honda & Sears had your address on file & gave it to the lawyers.

Same deal as in this case.

8:57 AM  
Blogger Linda said...

Well, I am at a loss as to why I never heard from the lawyers then, because Newsday, obviously, was paying attention - they took all my stuff down from their website.

So, I find the whole situation rather perplexing. Beyond that, I'm not particularly happy about the Tasini lawyer's response of: TS, you didn't get to us in time.

I seriously doubt that it was Newsday that dropped the ball. And since I've left forwarding addresses each time I've moved in the last 15 years.....

This whole settlement smacks of a scheme to call something a "class action" suit to drive up the numbers and then enrich a small number of writers and their lawyers.

9:13 AM  
Anonymous Anonymous said...


Unfortunately, forwarding addresses given to the post office are good for only one year. If you moved and didn't renew the forwarding address, it's entirely possible the lawyers sent you a notice but you didn't receive it.

10:35 AM  
Blogger Linda said...

Ultimately, everyone else has found me that wanted to sue on my behalf.

And, generally, the situation with class action suits that I've been contacted about is that you are sent mail that says you will be considered to be a part of the class unless you choose to opt out by responding to the notice.

So, I'd like to know from people who did recieve communications from the attorneys in Tasini - assuming there are such people out there - what the wording on that correspondence was.

11:50 AM  

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