Tuesday, March 17, 2009

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.

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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, ยง 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).

7 Comments:

Anonymous Moxie said...

Anita wrote:

"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."

That is not my premise.
I stated that MANY of the pre-2001 works would have little or no value as individual pieces for sale in a royalty system. However, it is up to each writer to determine that for himself/herself. And the settlement actually provides for that by structuring a two-part system of payment: One part as payment for past infringements and one part as payment for future rights. Each claimant had the option of retaining future rights (through the opt-out clause) for all, none or some of the works, depending on how he/she viewed their potential future value.

As for writers who did not join the class, either because they didn't know about it or didn't like the terms:
There was a time period of
some five years between the
much-publicized Tasini decision and the deadline for filing claims.
At any point, they could have done what hundreds of others did: pursued settlements and/or payments for future rights by dealing with their publishers individually.

The settlement is not perfect. But thousands of us (who have the same rights as the objectors) decided that it was the most likely way that we would be paid for our works. (And it is up to us, not the objectors, to decide for ourselves if we feel the amounts are enough.) The thousands of us who chose to join the class and file for claims should not have to wait endlessly for this settlement because "the objectors" have taken it upon themselves to decide that the rights of those who did not join the class (for whatever reason) are more important than our rights.

7:37 PM  
Blogger Irv Muchnick said...

Sorry, Moxie, your algorithm is backwards.

The law says that a class action must demonstrate that it works for the class, not for the (inevitable) minority for whom the notice was effective, and who went on to decide that the terms were OK for them. What is being litigated right now isn't a show of hands among that minority, but whether the class was adequately represented and served. Putting quotation marks around the word "objectors" doesn't change that reality.

This settlement tried to do something unprecedented in class action: take away property rights of absent class members. Can't do that, friend.

7:51 PM  
Anonymous Moxie said...

You said "This settlement tried to do something unprecedented in class action: take away property rights of absent class members. Can't do that, friend."

My response:
Under the Class Action Fairness Act of 2005, potential class members who did not receive proper notice are not required to be bound by a class action agreement.
They are free to pursue their own claims.

So, no one is being forced to give up rights. For those who did not hear about the settlement until too late, rights still exist (if they can establish that they weren't propely notified).

9:27 PM  
Blogger Irv Muchnick said...

Moxie is rationalizing. If the settlement goes through, there indeed will be further litigation -- but not just because anyone who can find a lawyer who will take a case can litigate just about anything. In a normal class action, if an absent class member does nothing, he gets nothing. But here, with the license-by-default gimmickry, an absent class member who does nothing has rights taken away from him.

That's not legal and it's not right, and I suspect Moxie realizes as much.

10:18 PM  
Anonymous Moxie said...

The absent class members still have rights. The fact that they have failed to act to exercise those rights does not take away their standing to do so in the future.

Yes, it is true that it may be more difficult/expensive for them to do so as an individual. But that is not a matter of rights being taken away, as a matter of legality. The rights still exist.

4:54 AM  
Blogger Irv Muchnick said...

Yes, Moxie concedes, "it is true that it may be more difficult/expensive" for absent class members who have been screwed by the settlement to pursue their rights. But, he adds, we do indeed have a court system for that purpose.

Unfortunately for his argument, the court system includes a class action system with rules of adequacy of representation, and with the purpose of protecting the rights of absent class members before things reach the ludicrous point in his theoretical scenario.

The burden is on the class reps to create a one-size-fits-all structure that is equitable. Class action was not intended to be the private toy of particular plaintiffs.

7:12 AM  
Blogger Anita Bartholomew said...

Moxie says:

"The thousands of us who chose to join the class and file for claims should not have to wait endlessly for this settlement because "the objectors" have taken it upon themselves to decide that the rights of those who did not join the class (for whatever reason) are more important than our rights."

This is an argument I've heard many times and it still leaves me scratching my head in wonder.

You argue that objecting to a settlement that steals future rights from others, somehow treads on your rights.

It does not.

You still have the same rights in your property that you did before.

What those who make this argument believe they have a right to do, it appears, is to trade the future property rights of others for some cash for themselves right now.

I don't see this as the zero-sum game that those making this argument do. I believe we all should have our property rights respected. I respect your property rights, Moxie. I also respect the property rights of those whose future rights to their property would have been forfeited under the terms of the settlement.

It was a bad deal. We all deserve a better deal.

- Anita Bartholomew

9:18 AM  

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