More Thoughts from Co-Objector Anita Bartholomew
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: http://www.copyright.gov/title17/92chap1.html#106), 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).