Sunday, May 24, 2009

Not Fit to Print in The Washington Post

Brewster Kahle's observations about the overreaching proposed court agreement for the future operations of Google Books are on the mark, and a reminder that this settlement faces widespread protests from all sides: Google's competitors, information consumers, and authors and publishers ("A Book Grab by Google," May 19, The Washington Post). But what the first two groups also should know is that another case, currently before the Supreme Court, originated with one of the same plaintiffs and attempts the same illegal process of using private class-action infringement claims to promulgate new and pernicious copyright law.

In a 2005 settlement of a consolidation of cases triggered by the Supreme Court's 2001 ruling, Tasini v. New York Times, the Authors Guild was among the associational plaintiff writers' organizations that brokered an agreement with the electronic database industry and its licensor newspaper and magazine publishers (including the parent company of The Washington Post). The case involves the unauthorized and uncompensated use, on products such as LexisNexis, of the previously published works of freelance writers.

I am one of the class members who objected to the terms of that settlement. The Supreme Court is reviewing the 2007 decision by the Second Circuit Court of Appeals to vacate the settlement on jurisdictional grounds -- a ruling with which both the settlement parties and the objectors disagree. We objectors seek the opportunity to return to the lower courts so we can argue against the settlement on its merits.

The case, now known as Reed Elsevier v. Muchnick, differs from the Google Books settlement in certain respects -- there is no prospective royalty system, for example. What the two cases share is a danger that has been identified by the Register of Copyrights, Marybeth Peters: infringement suits are supposed to redress past damages, not unilaterally create a future global rights architecture. This both would usurp Congress, which alone has the constitutional authority to revise copyright law, and would, by back-door "default" provisions, violate the rights of absent class members.



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