What the Freelance Settlement Objections Are All About
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 You might think that future use of these is worth "billions"; I happen to think that most of these works are now outdated and worth about zero.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.