'Reed Elsevier v. Muchnick' Briefing Process Exposes Settlement's Sham Arguments
For now, some observations on what the objections have always been, and continue to be, about. With a timeout for thanks again to Pam Karlan and the Stanford Law School Supreme Court Litigation Clinic for their superb work in support of objectors' attorney Charles Chalmers.
From day one, the objectors' fight has been largely a fight on behalf of the holders of unregistered copyrights. Everyone agrees that 99 percent of freelancers are chronic unregistereds and that 99 percent of the class works of this case are unregistereds.
Our brief shows this. We are explicitly arguing, here in the Supreme Court, that the law does allow, and should be recognized as allowing, unregistereds to be legitimately in a settlement class without the "permission" of the defendants.
(I refer here, of course, to unregistered American works, as opposed to works originating in other countries where registration isn't required. The settlement automatically stuck all non-U.S. works in Category C, and that is an outrage in itself. The many many thousands of non-U.S. works appearing in the 26,000 publications in the settlement are, legally and morally, exactly the same as the higher-paying Category B. The settlement parties never attempted to jusify Category C treatment of non-U.S. works, except to say that registration was required to sue -- which is not true for the non-U.S. works. This justification was always a sham.)
One of our core Supreme Court arguments is something known as "supplemental jurisdiction." And here's the thing: This argument apparently has been known to the named plaintiffs and their counsel from day one. I say so because it was explicitly part of their original pleading in the complaint consolidating the several class-action cases filed in the summer of 2000.
Another of our arguments is the rule that in some cases -- and we think this is one -- when there is a precondition to a lawsuit, it only has to be met by the named plaintiffs, not the class members. Perhaps the plaintiffs or their counsel knew this one, too.
But one thing is clear. Knowing the first, and maybe knowing the second (or at least being in position to find it out), they instead simply gave these arguments away. They settled with the defendants as though that leverage didn't exist. The defendants weren't giving anyone anything by including the unregistered. They wanted and needed them, for two reasons.
First, the defendants wanted to keep databases intact, or so they said (all the while surreptitiously deleting material from databases and failing to disclose this to their paying customers in a full and timely fashion).
Second, the defendants wanted and needed the unregistereds because an unregistered can always register, and the defense group's pattern of relicensing from time to time meant that an unregistered could turn out to be a Category A (highest-level claim) for some new licensee offering a new slice of the database.
All the spin to the contrary, in which the settlement partner plaintiffs shamelessly colluded, was a double-sham atop a simple sham.