Wednesday, June 03, 2009

Settlement Website Still Has All the Scoops

With the petitioners' and respondents' Supreme Court merits briefs filed in Reed Elsevier v. Muchnick, your humble blogger decided to take a trip down memory lane by visiting, the settlement administration website of the case once known as In Re Literary Works in Electronic Databases Copyright Litigation.

The update there is misleading -- characteristically so. "On March 2, 2009, the U.S. Supreme Court granted the parties’ petition to review the 2d Circuit appeals court’s decision to overturn the settlement," we're told, accurately if incompletely. The announcement continues:

"This means that the Supreme Court will decide whether the appeals court correctly rejected the settlement or whether it erred in doing so. The good news is that the settlement may ultimately be upheld, and all claiming authors, including those of unregistered works, may still get paid. Unfortunately, this also means that it will take a while longer to learn once and for all whether those claims will be paid. Please review this site every few months for further updates. The case name before the Supreme Court is Reed Elvesier, et al., v. Muchnick, et al. (08-203)."

In other words, the administrator, Garden City Group, would have readers believe that a positive outcome at the Supreme Court might constitute final approval of the settlement. In fact, the Court is reviewing only the jurisdiction question that was the basis of the Second Circuit's decision to derail the settlement. If the Supreme Court reverses the Second Circuit, the case will go back to the Second Circuit for consideration of the substantive objections to the settlement.

Meanwhile, if you call Garden City's 800 number, you no longer get a long, chronological, concatenated spiel about the legalistic holdups. Instead, you're told to wait for the first available operator. After a couple of rounds of that, you're told to leave a message and someone will call you back.


Anonymous Anonymous said...

For your information, the Supreme Court has the authority to go beyond the jurisdiction issue and uphold the settlement, if they see fit.

9:59 AM  
Blogger Irv Muchnick said...

Mr. or Ms. Anonymous is correct in the sense that the Supreme Court is ... well, Supreme. The justices can do pretty much whatever they want. By the same logic, it is remotely possible that they will overturn the Second Circuit on jurisdiction and instantly affirm the objectors on the merits. But I wouldn't leave readers of my website with the impression that it might happen. For the settlement administrator not to be playing straight with the scenario right before us -- an imminent Court decision on the specific question for which it has granted cert -- and for Mr. or Ms. Anonymous to be rationalizing the administrator's poor communications, is typical of the wishful thinking that has substituted for good judgment.

11:04 AM  

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