Wednesday, September 30, 2009

Plugola Central: CHRIS & NANCY Author Muchnick's Twitter Feed Publishes WWE Critique

[cross-posted from]

CHRIS & NANCY Author Muchnick’s Twitter Feed Publishes WWE Critique

SEPTEMBER 30, 2009--In a Twitter exclusive, Irvin Muchnick, author of the new book CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death, has begun publishing in installments the complete text of World Wrestling Entertainment’s legal threats to him while he was researching the book.

In an exchange of emails with Muchnick in June 2008, Jerry S. McDevitt of Kirkpatrick & Lockhart Preston Gates Ellis — WWE’s outside counsel and registered Washington lobbyist — commented at length, often in colorful terms, on the serial reports on Muchnick’s blog Wrestling Babylon on the progress of his book research. The blog’s home page is now

Earlier today, using Twitter’s 140-maximum-character interface, Muchnick’s Twitter feed,, published the first 12 of a series of “tweets” documenting the McDevitt-Muchnick exchange in its entirety. The series will continue with 12-tweet daily bursts, accompanied by their daily collection in posts at the Wrestling Babylon blog.

This full text is also among the files included in a companion DVD of records related to Muchnick’s research for CHRIS & NANCY.

For CHRIS & NANCY’s table of contents, the Foreword by award-winning New York Post columnist Phil Mushnick (no relation to author Irvin Muchnick), and other preview elements and book information, go to


Great Minds Think Alike

My old National Writers Union friend Mike Bradley has published this letter to the editor at Beyond Chron in response to my piece there yesterday:

"Gee, it's deja vu all all over again. Maybe because Irvin Muchnick and I agree so often, I think he is brilliant. Licensing agencies ARE the only sufficient solution. When I drafted the statement of the National Writers Union on orphan works, that was its principal point. I think I might have added that failure to register a new work with a licensing agency could prevent the rightsholder from claiming damages for infringement, but (a) how would that jibe with international IP agreements and (b) that sort of requirement couldn't be imposed on past works. So what is the solution for past works? Maybe, once registries are in place, a five-year period during which rightsholders can register their past works and no one may use them without agreement. Then, the new regime kicks in."

Yes, Save the Google Books Settlement -- From Itself

Tim Wu, a Columbia University law professor, has written a piece for Slate headlined "Save the Google Book Search Deal!" See

Wu decries the "movement afoot" to kill the deal, and takes it from there.

So, once more with feeling from this corner: Google may be salvageable, and all the responsible voices are saying so.

Wu writes that "the best analogy ... may be a public utility." That is correct. And public utilities need government regulation.

Wu says "let a modified settlement go forward, but let the court keep watch to make sure the deal achieves its public goals without undue private gain. This is the essence of the utility model ..."

I say let a deal go forward after, at a minimum, the terms of watchfulness get heavily front-loaded (among other necessary modifications). And whether that watchfulness is a judicial or a legislative function remains open.

That is the real essence of the utility model. The alternative is a recipe for yadda-yadda-yadda while the benefits get immediately privatized and the public interest becomes an afterthought.

Tuesday, September 29, 2009

'Google Books, Freelance Settlements Equally Stalled -- And Inextricably Intertwined' ... today at Beyond Chron

"Google Books, Freelance Settlements Equally Stalled - and Inextricably Intertwined"



"Reed Elsevier v. Muchnick Is About the Hijacking of Tasini v. Times"

Freelance Rights Vault: My 2001 Essay on "The Post-Tasini World"

Monday, September 28, 2009

Freelance Rights Vault: My 2001 Essay on 'The Post-Tasini World'

As the Supreme Court's October 7 oral argument approaches for Reed Elsevier v. Muchnick, we reprint my October 2001 essay, "Publish AND Perish: Confronting the Post-Tasini World," which was written for the librarians' journal The Charleston Advisor in the wake of the High Court's Tasini v. New York Times decision.

THE DEBATE OVER WRITERS’ RIGHTS in new technologies has specialized in hyperbole and reductios ad absurdum, so try this one. What if, in the wake of the 1974 Supreme Court ruling in U.S. v. Nixon, our embattled president had staged a White House lawn bonfire of the secret audiotapes implicating him in the Watergate scandals? How do you suppose The New York Times would have reacted?

In an arrogant display worthy of the other corporations and institutions the press is charged with holding accountable, the New York Times Company has been doing something similar to that in the months since the June decision by the Supreme Court in Tasini v. New York Times. The court confirmed that, absent agreement to the contrary, freelance writers and not their first-print publishers retain the rights to redistribute articles via digital media.

The Times’ next call was straight out of the scorched-earth playbook of Captain Willard of Apocalypse Now: It began purging its electronic archives of freelance works – making sure all the while that librarians knew that it was the fault of those pesky authors demanding to be paid a fair share of the revenues generated by for-profit products that had been launched without permission or consultation. By such innovative gambits, as well as by the old-fashioned blacklist – some writers who refuse to waive rights even retroactively have been told they will no longer get assignments – The Times is effectively telling the community of independent creators both to publish and to perish.

This despite the following words from the court:

"The Publishers’ warning that a ruling for the Authors will have ‘devastating’ consequences, punching gaping holes in the electronic record of history, is unavailing.... The Authors and Publishers may enter into an agreement allowing continued electronic reproduction of the Authors’ works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution.”

* * *

MUCH POST-TASINI V. TIMES commentary, following the pattern of that before the ruling, casts glazed-over eyes on the issue’s supposed technical complexity. A notable exception is Information Today columnist and Searcher editor Barbara Quint’s admirably clear essay, “Stop the Trash Trucks: A Tasini Case Damage-Control Proposal.” (That piece can be viewed at

Equally direct, but in an almost willfully wrong-headed way, is the coverage of The New Republic’s legal affairs editor, George Washington University law professor Jeffrey Rosen. Snidely blasting both the justices and the National Writers Union (which supported the case and whose president, Jonathan Tasini, was lead plaintiff), Rosen swallows the publishers’ line that “expansive” copyright protections retard public access to information. Funny, but we never seem to hear that line when publishers are trying to forge coalitions with authors to screw consumers. Rosen fails to note that the American Library Association endorsed the writers’ position in Tasini. It’s one thing to assert a more enlightened or principled view on a subject than that of the organization most interested in it, and quite another not even to get around to mentioning the established view.

With thanks to The Charleston Advisor for inviting me into this forum, I’m here to say that the idea that this is all so complex is a crock. What was complicated, I submit, was designing and constructing marvelous new mechanisms for downloading old magazine and newspaper material – in the process burning secondary markets at the stroke of a key – all on the back of a national information infrastructure subsidized by taxpayers. The other part – reaching economic arrangements that work reasonably well for all impacted parties – requires no hardware, just the software of flexible negotiations on a level playing field.

I mean, you’d think our nation had never had the wherewithal to devise a public library system in the 19th century. Indeed, that’s what today’s debate is really all about. Like many other public and quasi-public resources, the historical record is going private even while its custodians make calculated gestures toward seeming more open. Freelance contributors to publishers of “collective works” didn’t invent this problem and we aren’t even part of it; the writers union, for example, has long advocated broader definitions of fair use and subsidies for libraries and low-income denizens of our increasingly two-tiered information society. But where money systematically changes hands, we do expect to participate in the transactions.

People of goodwill understand this. Three courts agreed that the plain language of the statute – the Copyright Act of 1976 – is not ambiguous. Nor is the legislative history behind it. Though at that time Congress couldn’t contemplate full-text databases, CD-ROM’s, and websites per se, a fair reading shows an awareness of emerging technologies and a conscious embrace of a “doctrine of divisibility,” whereby freelance writers, photographers, and graphic artists would maintain secondary rights to their works by default. Why? Because the promise of any technological revolution is double-edged. Surely, the personal computer and the Internet advance the democratic ideal. But just as surely, consolidating intellectual property rights in the hands of the AOL Time Warners of the new publishing landscape does not.

From 1994 to 1997 I was privileged to serve the National Writers Union as assistant director and director of licensing, during which time we launched an innovative marketplace solution, Publication Rights Clearinghouse. I left to become a copyright litigation consultant, in part because I was skeptical about whether Tasini v. Times would alone be a formidable enough hammer to pound home future negotiations. And our first case in federal court in California, Ryan v. CARL, did win summary judgment on interpretation of the operative passage, Section 201(c) of the Copyright Act – the same section that the New York district court judge in the Tasini case had perplexingly construed in favor of the publisher-defendants. By 1999, however, the Second Circuit Court of Appeals had reversed the Tasini ruling, rather more sweepingly than it had to, and this year the Supreme Court could hardly have affirmed more convincingly. Only Justices Stevens and Breyer dissented in a 7-to-2 vote.

Folks, when Ruth Bader Ginsburg and Antonin Scalia are on the same side, there’s a message, and the message isn’t that we lack an intelligent consensus on law and policy.

* * *

AS FOR THE QUAINT NOTION that information wants to be free … Have you looked lately at your bills from Lexis-Nexis, Dialog, and Gale Group? A half-dozen years ago, a school of digerati gurus mesmerized opinion-makers with value-added theory and other mumbo-jumbo pointing toward the withering away of copyright. Some of these savants, like Esther Dyson, have since been exposed as industry lackeys. Others, like John Perry Barlow, would have done better training their cyberlibertarianism exclusively on privacy matters. This fight was never about the death of intellectual property – an impossibility under capitalism. As in the early days of the railroads, when the slogan was “all the traffic can bear,” this was about resistance to a regime of “IP for me but not for thee.”

Even thinkers I otherwise admire, like Pam Samuelson, a University of California law professor and a MacArthur Fellow, sometimes fell for the cyberhype. Ryan v. CARL, a class action against the UnCover document delivery service, was filed in 1997. (The case settled last year for $7.25 million.) When the San Jose Mercury News asked Samuelson to comment, she said, “You run the risk of killing the goose that lays the golden egg.”

Well, excuse me, but the wreckage of Nasdaq is now filled with answers to the question, What golden goose? The most overlooked hygienic effect of Tasini may be that it prods electronic publishers of all sizes and shapes into business models grounded in a smidgen of reality. No less than Webvan or, we all need to be thinking strategically about efficient, equitable, and viable ways to connect readers (“users”) with stuff (“content”). Pretending that it’s OK for publishers to steal from authors only delays the process of figuring out how to foot the bill for a vibrant and diverse culture.

In his prescient 1994 Times op-ed, “Infohighwaymen,” bestselling novelist (and writers union activist) Nicholson Baker cited the fears of magazines that “if they don’t go online somehow fast they will be left twirling twigs in the imminent hypertextual bouleversement.” He concluded, “This isn’t going to happen….”

* * *

I CLOSE WITH A NEWS flash: Feel free to copy and send this piece to whomever you wish. That’s the way I choose to spread my ideas and expression in this instance, and I won’t be Jeffrey Rosen’s or anyone else’s reductio ad absurdum. You see, copyright and its discontents are about more than dollars and cents. They’re also about common sense. In the tale of the 2-by-4 and the mule, the farmer used the first to beat some into the second. With the support of information professionals, let’s see if this recent round of authors’ litigation does the same to publishers.

Saturday, September 26, 2009

Grimmelmann on 'Party Crashers'

A blog reader points out that James Grimmelmann has "an even more interesting" post this morning about the Google Books settlement, headlined "Party Crashers." And he's right. See

Among other things, Grimmelmann meticulously breaks down the history of the involvement of the Authors Guild and its lawyer Michael Boni. Grimmelmann makes a point about this "plaintiff" that we made four years ago about the "associational plaintiffs" (including the selfsame Authors Guild) in the freelance case: it had no copyrighted works that were being infringed, and hence no standing to represent the class -- until a judge arbitrarily and capriciously decided that it did. Indeed, to the extent that the Guild has any interest at all, it's the bureaucratic one of maintaining good relations with the publishing industry in return for the resources and access it offers to members.

Like any academic or lawyer -- and especially like an academic lawyer -- Grimmelmann also gives us a lot of who-shot-John and lectures on procedure, some of it useful, some not.

I, personally, am not a know-it-all. Nor do I burst into tears every time someone tells me that what I'm trying to do is naive. I've been doing this stuff since 1994, when I was working in front of a computer with a 30-megabyte hard drive, a 2400 baud modem, and a dial-up connection. People said I couldn't find a big law firm to take on a class action for writers in 1997. People also said I couldn't get objections to In re Literary Works in Electronic Databases Copyright Litigation off the ground. Grimmelmann has a great educational conference scheduled, by the name of "D Is For Digitize." I have Reed Elsevier v. Muchnick, now before the Supreme Court. We're both leveraging our goals and interests from different angles.

Can a class action settlement, per se, create a royalty system? No. Can accumulated and well-managed class actions drive the policy outcome of a royalty system? Absolutely.

Grimmelmann is the naive one if he thinks the Department of Justice produced its impressive Google brief in a vacuum. There were more than 400 objections to the proposed settlement from around the world, and the attorney general and his people decided it was politic to file a "Statement of Interest" -- which, I must say, I find to be tremendously constructive overall.

On the subject of the uses and misuses of legal rigor, I always remember the brilliant example of A.J. De Bartolomeo, an associate at the San Francisco office of Robins Kaplan Miller & Ciresi when I was consulting for the firm on behalf of the plaintiffs in Ryan v. CARL, the first-ever class action copyright case on behalf of authors (and one of the twin inspirations, along with Tasini v. Times, for Reed Elsevier v. Muchnick).

In that role, I produced historical memos and recommendations filling more than a dozen loose-leaf notebooks. Some of them attached correspondence between publishers and writers, as well as detailed trade magazine articles about the electronic-database rights issues, dating back years, even decades.

In 2005, De Bartolomeo was now a partner in a San Francisco class-action factory that owned a piece of the action in the consolidated cases that became Reed Elsevier v. Muchnick. And in a declaration to the court in support of the settlement, De Bartolomeo blandly stated that there was "no" evidence of willfulness on the part of the infringers.

Just as there is "no" evidence of willful infringement by publishers, there is "every" chance that my letter to the attorney general can help move the ball down the field.

Dear Professor Grimmelmann: Let Me Buy You a Drink in the Nation's Capital

The estimable James Grimmelmann of the New York Law School's Institute for Information Law and Policy has blogged his reactions to my letter to Attorney General Eric Holder.

In my letter, the full text of which can be viewed at, I propose that the Justice Department -- whose devastating "Statement of Interest" sent the Google Books settlement architects back to the drawing board -- similarly use its muscle to help coordinate the Google settlement with the equally stalled, and inextricably intertwined, freelance journalists' settlement (Reed Elsevier v. Muchnick, which will be argued at the Supreme Court on October 7).

Grimmelmann's post is at I urge everyone to read it.

When I was alerted to this critique yesterday, I immediately tweeted: "Google settlement commentator-in-chief @grimmelm calls my letter to the AG 'interesting.' Well, that's a start!"

And that's still the way I feel. The Justice brief in Google (which, to my gratification, talked about a lot more than just antitrust) is obviously the single most important independent voice to date in nudging that deal toward a semblance of public-policy sanity. Grimmelmann may be the second most important. I say this not just because Grimmelmann has created "forums," online and elsewhere. A lot of so-called experts set up virtual gathering places and town-hall environments, and most of them don't add up to a hill of beans. My respect for Grimmelmann stems from my appreciation that he is way ahead of the other Google critics in understanding that the settlement there is on to something important, even as it badly misses the mark in its current form.

For a good, tight iteration of Grimmelmann's take on all this, I also encourage readers of this blog to check out his post at the site of Students for Free Culture: An ultimate Google settlement "is likely to be an enormous net positive for readers," Grimmelmann concludes, "but this is no way to run a culture."

Finding a good way to run a culture is exactly what's behind my suggestion to the attorney general to make sure that the right hand of the Google settlement knows what the left hand of the freelance settlement is doing, and that something constructive is done about it.

In the same spirit, Professor Grimmelmann, I invite you to blow off the October 7 hearing on Google in district court in New York (where, we now know, nothing important, or certainly conclusive, is going to happen) and, instead, drop by the Supreme Court for Reed Elsevier v. Muchnick. There the justices will be talking about an unrelated technical issue -- jurisdiction of unregistered copyrights -- but in the course of things they just may have a thing or two to say about how their clear intent in Tasini v. New York Times (2001) has gotten hijacked by a publishing industry that was more interested in putting a boot to the neck of freelance writers than in obeying the law of the land.

If you show up in D.C., I'll buy you a drink afterwards, even though I'm broke, and I'll give you an autographed copy of my new book Chris & Nancy: The True Story of the Benoit Murder-Suicide and Pro Wrestling's Cocktail of Death. Who can resist an offer like that? (You won't find Chris & Nancy snippets at Google Books -- I've asked my publisher to hold off on letting them scan it for now.)

Friday, September 25, 2009

Do Freelance Writers Want a Little 'Moxie' -- Or a Lot of Moxie?

The blog commenter who uses the handle "Moxie" has sent in a new one. He (or she) is sincere, if misguided, and his off-target point is important enough to highlight in its own post.

Moxie writes:

There is a huge problem with merging the two cases [Google Books and Freelance], in that a major portion of [Freelance] concerns past infringement of works written prior to 2001. There is no way a royalty system can address that.

Only a small portion of the settlement money was payment for future use. And, as we know, all writers (even those who wish to accept payment for past infringement) were able to opt out & seek payment (via a royalty system or any other method of their choosing) for future use.

I understand that, as a writer of current works, you have a strong personal interest in a royalty system that extends into the future. I can even accept that you think you are looking out for anonymous folks around the world who never heard of the settlement (to the deteriment of the thousands of us who did). What I don't understand is why you continue to think that there is any legal and/or financial power in an almost-obsolete group of works published many years ago.

Please continue to fight your battle with the big fish (Google) and let us small fish in the Copyright case get the settlement funds that, if not for you, we already would have had.

In rebuttal to Moxie, let me say, first, that a royalty system can indeed come to grips with the revenues for reuse of articles past, present, and future. The Supreme Court said as much in 2001. Reed Elsevier v. Muchnick is about getting back on track the clear intent of the highest court in the land (as well as the Congressional intent of the Copyright Act of 1976). I do not believe we should give up on it simply because a more powerful, more heavily lawyered party -- which, surprise!, just happens to be the infringers rather than the infringed -- figured out how to turn Tasini v. Times inside-out to its advantage, with the collusion of some sellout named plaintiffs in an illegally structured class action settlement.

Will royalty system negotiations be easy? No. There's the whole opt-out/opt-in thing. And there's the question of whether the courts can do such a thing by themselves anyway, without Congressional copyright reform and antitrust waivers.

But a lot of public resources went into the creation of the Internet, and publishers sure didn't find their decades of systematic and willful piracy "too complex" to pull off. The technology, including micro-transaction data, is there. What's lacking is the will -- plus some consensus understanding that what freelance writers have produced, do produce, and will continue to produce has real value.

A good start would be understanding by the writers themselves. Too many of them must have listened to their publishers, or their wives, tell them that they're worthless, and internalized that message.

On that topic, the gold standard remains, in many respects, Nicholson Baker's October 18, 1994, New York Times op-ed essay, which was headlined "Infohighwaymen." You can read it at

I fell out of touch with Nick (who, of course, is a bestselling novelist) years ago and I do not represent that he agrees with me any more, across the board or even necessarily at all.

But in 1994 Nick Baker was one of the charter members and activists of "Operation Magazine Index," a campaign by the National Writers Union's San Francisco Bay Area Local, which was confronting electronic databases companies for ripping off our works. And he nailed it in this passage of his Times piece:

It’s interesting to speculate what the hit singles might be in this proposed arrangement [a royalty system loosely modeled after the music industry's ASCAP]. They wouldn’t necessarily be big cover stories in general interest magazines, since those already have a wide distribution.

Rather they might be obscure genealogical treatises, how-to tips for the beginning designer of flume rides or sell-your-satellite-dish-and-lease-it-back money-making schemes that appear in specialized periodicals with narrower newsstand penetration. Whoever the new database stars are, they deserve some dignified fraction of the money being charged for their prose.

Moxie seems sure that his own articles have little financial, let alone moral, value, and maybe he's right. But that view shouldn't bind the universe of freelancers unto eternity, at the very historical moment when new tech shows the potential for democratizing the publishing industry instead of only consolidating it.

Old reports in zoned editions of a newspaper on a small town's City Council meeting might have no ongoing market at all. Or they might have more of a market than you think. Digital archives profit on two premises. One is their integrity -- their comprehensiveness. On that basis they sell blanket subscriptions or online advertising, or simply give away content as a loss leader for brand-building in other fields.

The other for-profit premise, the one with which people are more familiar, is the per-download demand. That is only one part of the equation. And as Nicholson Baker noted, the long-term answers even there could surprise us.

Make no mistake: corporate reusers are either making money or planning to make money from our material. The only question is whether they get to keep all of it, then, now, and forevermore, as a perverse reward for having thumbed their noses at the Supreme Court; or whether they sit down and arrive at arrangements that are fair to everyone. Fair to the publishers themselves, of course, for the value added by their first-print publication. Fair to writers for the collectively steady, if individually sporadic, reuse of their works. And fair to a public that wants the information spigot turned on, with a level playing field of access and without price-gouging.

As is suggested by my letter to the attorney general -- which points out commonalities in both the principles and the logistics of the Google Books settlement and Reed Elsevier v. Muchnick -- the solutions will require imagination.

They will also require moxie. In the case of this particular blog reader, sadly, that's moxie with a small "m."

Thursday, September 24, 2009

Muchnick Letter to Attorney General: Let’s Merge Google, Freelance Settlement Talks

Irvin Muchnick – lead respondent in the freelance journalists’ class-action copyright case, Reed Elsevier v. Muchnick, which will be argued before the Supreme Court on October 7 – has proposed that the Justice Department coordinate settlement negotiations in both that case and the now-delayed Google Books settlement.

In a letter to Attorney General Eric Holder, Muchnick praises the government for intervening in the Google case. He says the respondent-objectors in the freelance case “are gratified that the Government’s Statement of Interest in Google went out of its way to offer cogent analysis” not only in the area of antitrust, but also in class action and copyright law. The letter spurred the parties to ask for a delay in the Google fairness hearing, which also had been scheduled for October 7 before District Court Judge Denny Chin.

Muchnick’s letter to Holder asserts that the freelance and Google cases “have striking and compelling similarities,” that the outcome of Reed Elsevier v. Muchnick will fundamentally affect a revised Google settlement, and that both judicial economy and public policy would be served by discussing the two cases as a package.

The government’s brief in Google, Muchnick goes on to say, “has put its finger on the central solution tying together both cases: the need for comprehensive, industry-wide royalty systems. In their current forms, the Freelance settlement has the comprehensiveness but not the royalty system; Google has the royalty system but not the comprehensiveness.” In its wake, Muchnick adds, “all stakeholders in the emerging copyright landscape should have their interests heard and incorporated. From a policy perspective, perhaps the most egregious lapse to date has been the disenfranchisement of librarians and information consumers in the rush to tailor litigation settlements. The resulting pastiche of proposed solutions is poorly integrated and has ill-served all parties.”

The full text of Muchnick’s letter can be viewed at

Tuesday, September 22, 2009

Google Books Fairness Hearing Almost Definitely Will Be Postponed

In the non-surprise of the season, the parties in the Google Books settlement have filed a motion asking Judge Denny Chin to adjourn the October 7 fairness hearing. They have proposed a November 6 scheduling conference. Time to maneuver and incorporate the critiques of the Justice Department and others.

Monday, September 21, 2009

Plugola Central: CHRIS & NANCY Table of Contents And Complete Preview at

[cross-posted from]

Benoit Book Table of Contents

And Complete Preview at

SEPTEMBER 21, 2009—Author Irvin Muchnick’s website has released the facsimile pages of the Table of Contents of the new book CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death.

This completes the preview of elements of CHRIS & NANCY, which will begin arriving in bookstores over the next several weeks. Here are all the online links:


FOREWORD by Phil Mushnick (award-winning New York Post columnist; no relation to author Irvin Muchnick)


2-PAGE SAMPLE OF THE 16-PAGE COLOR PHOTO INSERT (low resolution version)

2-PAGE SAMPLE OF THE 16-PAGE COLOR PHOTO INSERT (high resolution version – long download time)

For complete pre-order information, including international links to, go to

To reserve an autographed copy of CHRIS & NANCY direct from the author, send $19.95 via PayPal to or via postal mail (U.S. funds only) to:

Benoit Book

P.O. Box 9629

Berkeley, CA 94709

All U.S. orders of autographed copies direct from the author are at the American retail price of $19.95, with free standard shipping to U.S. addresses. Prices for Canadian and other foreign orders will be published at a later date.

Irvin Muchnick is author of WRESTLING BABYLON: Piledriving Tales of Drugs, Sex, Death, and Scandal, and a widely published magazine journalist. He is lead respondent of the current landmark case for freelance writers’ rights, Reed Elsevier v. Muchnick, in which oral argument before the U.S. Supreme Court is set for October 7.

Media inquiries:

Irvin Muchnick

Simon Ware

Publicity Director

ECW Press






Sunday, September 20, 2009

‘Reed Elsevier v. Muchnick’ Is Related to Google -- But Not Because of Antitrust

As noted in the previous post, the Justice Department really stepped up to the plate in its brief to Judge Denny Chin on the foundering Google Books settlement. The government’s lawyers produced a thorough overview of the deal’s problems in all three areas: antitrust, copyright, and class action law.

My one gentle correction would be that the brief’s reference to our Supreme Court case, Reed Elsevier v. Muchnick, did not pinpoint the most important links between the two cases, and drew attention to a not particularly relevant one.

The most important similarities are their sweeping scope, their dependence on a “license by default” mechanism for future rights, and their common named plaintiff: the Authors Guild.

The government’s brief focused here on something altogether different, the antitrust implications; and the citation of us was off-point. With accuracy, it was stated that the “risk of market foreclosure would be substantially ameliorated if the Proposed Settlement could be amended to provide some mechanism by which Google’s competitors could gain comparable access to orphan works.” Less clearly, the proposed settlement in the freelance case was said to be superior in the sense that "numerous companies beyond the named defendants [would be] allowed to obtain benefits of settlement."

First, the reason numerous companies would get the future benefits of the freelance settlement is that, unlike in the Google case, there is infringement not by a single company but a longstanding industry-wide problem – just about every major newspaper and magazine publisher and their electronic-database licensees have been stealing from writers, systematically and willfully, for decades.

Second, “numerous companies get the future benefits” because they are grabbing future rights without any ongoing compensation whatsoever. In this detail, the Google settlement is actually superior in that it at least calls for a royalty system, albeit not one inclusive enough or adequate.

There is much to be learned from combining the lessons of the doomed Google and freelance settlements. Both need to be opened up in different ways. As litigation, both need “opt in” rather than “opt out” provisions for absent class members.

Genuine ultimate solutions? True industry-wide negotiation with all stakeholders, concluding with royalty systems and compulsory licenses ratified by Congress, not the courts.

Oct. 7 Shapes Up As More Important for 'Reed Elsevier v. Muchnick' Than for Google Books

"This Court should reject the Proposed Settlement in its current form and encourage the parties to continue negotiations to modify it so as to comply with Rule 23 and the copyright and antitrust laws."

With those words, the Department of Justice concluded a critique of the Google Books settlement that was a lot more comprehensive than has been reported. The government's antitrust division was expected to document serious concerns about that aspect of the
deal. However, I know of no one who reported in advance that DOJ's brief would be a three-pronged attack, also summarizing objections on grounds of copyright and Rule 23 (class action law).

I encourage everyone to read the document, which is viewable at

What happens next, of course, is up to Judge Denny Chin. But the Justice brief increases the speculation that the October 7 fairness hearing in Google will not be definitive. The government essentially reported that the settlement parties have talked with the attorney general's people in some depth and committed to going back to the drawing board. Whether these changes are spun as "tweaks" or a major overhaul is not important. What is important is that a bad settlement not achieve fast-track approval.

The Justice brief has references to Reed Elsevier v. Muchnick, which also has a hearing on October 7, at the Supreme Court. I will comment later on what those remarks mean and how, in my view, the two cases fit together.

Thursday, September 17, 2009

Open Books Alliance Statement of Principles

'Reed Elsevier v. Muchnick Is About the Hijacking of Tasini v. Times' (full text)

[originally published on September 14 at Beyond Chron,]

Reed Elsevier v. Muchnick Is About the Hijacking of Tasini v. Times

by Irvin Muchnick

Editor’s note: Beyond Chron contributor Irvin Muchnick is the lead objector to the settlement of a major copyright class action. The case is now at the U.S. Supreme Court under the name Reed Elsevier v. Muchnick, and oral arguments are scheduled for October 7. Here is Muchnick’s preview.

Supreme Court cases turn on technicalities, but they also are driven by underlying policy narratives. Reed Elsevier v. Muchnick, the major freelance writers’ rights case of our era, is no exception. In addition to looking for the answer to the narrow question the justices accepted for review – “Does § 411(a) of the Copyright Act prevent federal jurisdiction for claims of unregistered copyrights?” – discerning observers will be paying close attention to how the justices get to their answer.

Don’t take it from me, but which way the Court rules matters a whole lot more to publishers than to writers and other independent creators.

If the justices decide, contrary to the Second Circuit Court of Appeals, that un-registereds can participate in court-sanctioned settlements, then this whole mess goes back to the lower court for review of the deal’s merits. Our attorney, Charles Chalmers, is well prepared to demonstrate to the Second Circuit that the class has been inadequately represented and the settlement’s “license by default” mechanism is illegal.

On the other hand, if the Justices decide that the courts should have no part of a settlement involving un-registereds, then this one is dead as a doornail, here and now. The registration conundrum is really the problem of those who have been stealing copyrighted material for decades: the print publishing corporations and their electronic-database partners. It is not the problem of the people they have been stealing from. The reason is that the holders of unregistered copyrights would remain potential holders of registered copyrights – they could always file their registration paperwork and sue later.

What is the history that has brought us to this pass? And what is the public-interest solution to the fair division between publishers and writers of revenues generated by the digital revolution?

In 1993, a group of freelance plaintiffs led by Jonathan Tasini, then president of the National Writers Union, sued the The New York Times and others over the illegal reuse, without the contributors’ permission or compensation, of their previously published newspaper and magazine articles on products such as LexisNexis. These practices, systematic and willful, violated the Copyright Act of 1976, which codified that a freelancer typically licensed to the first-print publisher only the right to print an article for the first time. Individual article delivery is not the same as republication of the entire collective work (an obvious example of the latter is microfilm).

In 1997, then-U.S. District Court Judge Sonia Sotomayor sided with the publishers. Two years later, the Second Circuit overturned Sotomayor. In 2001, the Supreme Court upheld the Second Circuit by a 7-2 vote, with liberal lioness Ruth Bader Ginsburg and arch-conservative Antonin Scalia both in the majority. (Sotomayor, now on the Supreme Court, has recused herself from Reed Elsevier v. Muchnick, perhaps because she participated in its procedural deliberations while on the Second Circuit.)

In her Tasini v. New York Times opinion, Ginsburg dismissed the publishers’ warning that a ruling adverse to them would have “devastating” consequences for the historical record. “The parties,” she wrote, “may enter into an agreement allowing continued electronic reproduction of the Authors’ works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution.”

In the immediate aftermath, as part of their campaign to shove all-rights contracts down the throats of almost all their freelance contributors – trumping the provisions of copyright law in their future practices – publishers promoted to librarians and information consumers a doomsday scenario in which all freelance articles might have to be expunged from databases, turning them into “Swiss cheese.” This line was malarkey. By stealth, publishers for years had been deleting from databases some works of some complaining writers – all without bothering to disclose to customers that the publishers were choosing degradation of their products over good-faith negotiation of new-tech revenue streams.

In 2000, anticipating the writers’ ultimate Tasini victory, several class actions were filed on behalf of freelancers. The Authors Guild (which has proven itself a classic “company union”) maneuvered to the helm of these consolidated cases, just as the Guild later would direct the equally controversial and more heavily covered Google Books settlement. (In a coincidence, the Google case has a fairness hearing in district court the same day as the Supreme Court hearing in the freelance case.) In the spring of 2005, other objectors and I intervened in the freelance case, leading us today to the steps of East Capitol and First Street NE.

Unless they’re stupid, the Google Books settlement parties are closely following our developments. In the opinion of many, both the Google and freelance cases abuse the class-action system and turn copyright law on its head by giving away to the infringers future rights of all writers who do not affirmatively opt out. Indeed, two of the partners of the settlement to which we are objecting – the National Writers Union and the American Society of Journalists and Authors – have turned around and formally objected to the Authors Guild’s Google settlement by using some of our exact arguments.

I believe that for book authors and freelance journalists alike – as well as for photographers, graphic artists, and videographers – the inexorable answer is a fully and fairly conceived royalty system. Such a system would include “compulsory licenses” freeing information consumers of the burden of chasing down rights holders. But, as Register of Copyrights Marybeth Peters noted in Congressional testimony last week, comprehensive royalty systems cannot be schemed for the private benefit of litigation parties and their lawyers, as the Google parties are trying. Like the public library system of the 19th and 20th centuries, they must emerge from larger negotiations guided by common-sense copyright reform and antitrust waivers at the direction of Congress.

The delicate interplay between narrow legal question and broad policy comes into play in the Supreme Court appeal via a deceptively complex issue: whether the federal courts are restricted from conferring “subject matter jurisdiction” over the claims of unregistered copyrights. The need to include un-registereds in order to give a final deal true closure is the one thing on which both the settlement parties (the defendants plus the plaintiffs) and we objectors agree. This matter is at the High Court only because of a monkey wrench in the form of a sua sponte (spontaneous and unprompted) ruling by the Second Circuit.

Because none of the parties directly involved in the case is defending the Second Circuit’s position (and even the solicitor general, who argues the government’s interests before the Supreme Court, has weighed in against it), the justices appointed an amicus curiae, or “friend of the court,” to argue on behalf of the lower court. Intriguingly, amicus Deborah Merritt, an Ohio State University law professor, is a former clerk for Justice Ginsburg. Merritt’s brief is effective – so, effective, in my view, that it raises the possibility that Ginsburg and her brethren have a larger agenda. Ginsburg’s Tasini opinion had clearly signaled a royalty system as the real-world solution. And I think the settlement proposed in the freelance case just as clearly perverts that intention – enriching the Tasini-losing publishers at the expense of the winning writers. Could the Supreme Court be reaching for the technical means to rectify that injustice?

If so, the objectors (represented by Chalmers with the support of the Stanford Law School Supreme Court Litigation Clinic, directed by Pamela Karlan and Jeffrey Fisher) have shown the justices a way. We point out that even if the courts do not have original jurisdiction over unregistered claims, a provision known as “supplemental jurisdiction” would make it appropriate to remand the matter to the Second Circuit for consideration of aspects of the settlement’s merits – before jurisdiction is even fully addressed.

Again, this is all speculation on the part of someone with a direct interest in a particular outcome. But whatever the specifics of the ultimate decision in Reed Elsevier v. Muchnick, the justices should do something to stop the hijacking of Tasini and hasten the arrival of a royalty system. That will be good for writers, less confusing for the public, and the fulfillment of the promise of new technologies to make our culture more accessible, diverse, and vibrant.

Irvin Muchnick’s Chris & Nancy: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death will be published in October by ECW Press. Pre-order information is at He blogs at and tweets at

Zoe Lofgren Backs Google -- Wow, What a Surprise

As Andrew Albanese notes in his excellent summary of Google Books comments for Publishers Weekly, "Rep. Zoe Lofgren, a Democrat who represents Silicon Valley, suggested that Congress should stay away. 'At this point, we don’t have a role to play,' she said, adding that the settlement was 'the private sector achieving what we failed to achieve' in terms of legislation."

Eric Schmidt, the CEO of Google, is a major Lofgren campaign contributor (most recently, $2,000 on October 8, 2008).

"What we failed to achieve" at the legislative level -- indeed.

Google Books Resolution Should Await 'Reed Elsevier v. Muchnick' Supreme Court Ruling

According to reports, Google is in discreet talks with the Justice Department to "tweak" the Google Books settllement, which is under fire on antitrust and other grounds. U.S. District Court Judge Denny Chin has received 400 submissions from objectors, opt-outers, and other commenters, and is said to be thinking about how to limit speakers at the scheduled October 7 fairness hearing.

Also on October 7, the Supreme Court will be hearing oral arguments in Reed Elsevier v. Muchnick.

The two cases are inextricably linked. Most pointedly, both involve the proposed use of a class action settlement to impose "compulsory licenses" on absent class members who do not affirmatively opt out. As new-tech legal expert and McArthur Fellow Pamela Samuelson, among others, has observed, this would be a breathtaking and unilateral change of law.

For Judge Chin to try to tie up Google Books in a neat bow on or shortly after October 7 would be a travesty of due process. The obvious interim solution would be to stay that case pending the Supreme Court decision in Reed Elsevier v. Muchnick. As I have said repeatedly, the underlying issue of our case -- which involves resolution of the illegal reuse on electronic databases of the works of freelance journalists -- is the way publishers have attempted to hijack the clear ruling and intent of the High Court in Tasini v. New York Times.

I also said, as long ago as this spring, that the Google Books deal had "bombed in New Haven" -- a reference to the pre-Broadway closing of a play that drew bad notices and attendance in previews. And you can't overhaul a bad script, score, and cast overnight.

Compulsory Licenses And Royalty Systems Are Congressional Matters

Peter Jaszi, director of the Glushko-Samuelson Intellectual Property Clinic at American University Washington College of Law, has published a blog post, headlined "Reframing Google Books," in response to Register of Copyrights Marybeth Peters' Congressional testimony last week. See

Here is the text of my email to Jaszi:

Professor Jaszi:

Your otherwise well-articulated counterpoint to Register of Copyrights Peters' Congressional testimony uses sharp and misleading rhetoric on the subject of compulsory licenses. Everything you say about the advantages of such licenses is true -- but the implication that Peters and other Google Books settlement critics oppose them is not. In my opinion, you have skirted the heart of the matter, which is the questionable legality and appropriateness of promulgating compulsory licenses by private litigation rather than by public legislation. As the lead respondent in the current Supreme Court case Reed Elsevier v. Muchnick, which involves similar issues, I have long advocated compulsory licenses -- reached by fully and fairly negotiated royalty systems -- as a solution to both making information accessible and allocating new-tech revenue streams.

Irvin Muchnick

Monday, September 14, 2009

Supreme Court's 'Muchnick' Case Is About the Hijacking of 'Tasini'

Reed Elsevier v. Muchnick
Is About the Hijacking
Tasini v. Times

by Irvin Muchnick

Editor’s note: Beyond Chron contributor Irvin Muchnick is the lead objector to the settlement of a major copyright class action. The case is now at the U.S. Supreme Court under the name Reed Elsevier v. Muchnick, and oral arguments are scheduled for Oct. 7. Here is Muchnick’s preview.


Sunday, September 13, 2009

More Supreme Court Briefs

Deborah Jones Merritt, the amicus appointed by the Supreme Court to defend the Second Circuit's ruling in Reed Elsevier v. Muchnick, filed her brief last month. It is viewable at

The Muchnick Respondents filed a supplemental brief last Friday. See

I have a preview of the October 7 oral arguments running shortly in Beyond Chron, and as usual will post here the link and then the full text of that piece.

Thursday, September 10, 2009

Register of Copyrights Attacks Google Settlement

Marybeth Peters, the Register of Copyrights -- a position in the Library of Congress -- has moved boldly forward in her criticism of the Google Books settlement. In previous public statements Peters had raised questions, but in testimony this morning before a House Judiciary subcommittee, she called the deal "fundamentally at odds with the law."

The report by Publishers Weekly's Andrew Albanese is up:

U.S. Register of Copyrights Slams Google Book Search Settlement

Wednesday, September 09, 2009

NWU, ASJA Make Our Argument in Google Objections

Yesterday was the filing deadline for objection briefs in the Google Books settlement. Several blog readers have pointed out not only that the National Writers Union and the American Society of Journalists and Authors formally objected, as expected, but also that NWU and ASJA use one of the exact arguments of us objectors in the freelance case: that the "license-by-default" device for absent class members is illegal.

ASJA filed a brief in Google on behalf of itself and 57 authors, led by Harold Bloom. NWU joined as an amicus. "[A]fter approval," they argue sensibly, "Rightsholders will be deemed to have granted a license by virtue of doing nothing." Later they title one of the sections of the brief "The Forced-License Model in the Proposed Settlement Turns Copyright Law on Its Head."

Of course, this is what we have been saying for more than four years in the freelance journalists' case, now known at the Supreme Court as Reed Elsevier v. Muchnick. (The justices will hear oral arguments on October 7 -- the same day as the fairness hearing for the Google settlement in district court in New York, unless Judge Denny Chin shuffles the schedule again.) And ASJA and NWU, which have broken ranks with lead sellout Authors Guild in Google, are co-associational plaintiffs in the freelance case, defending the same untenable licensing structure they have just demolished.

Friday, September 04, 2009

Instant Analysis of Sotomayor Recusal: No Big Deal

As noted in the previous post, Justice Sonia Sotomayor has recused herself from consideration of Reed Elsevier v. Muchnick. So far as I can immediately tell, it is not a big deal.

It's true that, with eight justices now voting instead of nine, there is the chance of a 4-4 tie -- and a tie would go in favor of upholding the Second Circuit of Appeals ruling now on appeal. But that is a mere function of the change from an odd to an even number. Sotomayor was part of the Second Circuit before her elevation to the Supreme Court, so there is at least an equal measure of speculation that she was inclined to rule in favor of her former court and against the petitioners and respondents arguing against it.

And that's about all I have to say on the Sotomayor recusal.

Justice Sotomayor Recuses Herself from 'Reed Elsevier v. Muchnick'

Thursday, September 03, 2009

Anita Bartholomew on Tomorrow's Google Books Opt-Out Deadline

Wednesday, September 02, 2009

Nimmer: Should Google Be a Regulated Utility Under Its 'Settlement'?

The No on Google Books campaign proceeds. The last time I clicked, the German government had filed papers pointing out that the proposed settlement violates that country's copyright and privacy laws.

Consensus can be overrated, but when opposition is so relentless and from so many sources, there is a pattern of legitimacy to it. For me, the only open question is whether Judge Denny Chin believes his eyes and does something about it on or before October 7, the date of the settlement "fairness hearing."

Once again, I don't represent this blog as the go-to place for Google Books. I will be having more to say shortly about our Supreme Court case, Reed Elsevier v. Muchnick, and how it relates to Google. But right now I do want to point everyone to the views of the distinguished copyright expert Raymond T. Nimmer, whose blog post "Should Google be a regulated utility under its 'Settlement'?" nails the key private profit/public benefit nexus of the Googleization of Everything. The link is

The only way the settlement would be acceptable, Nimmer suggests, would be if Google were then treated "like a utility, common carrier, or essential facility that should be required to provide low cost, non-discriminatory access to all others and its profit from this anti-competitive agreement and the asset created with the power and sanction of the court should be closely regulated."

A mouthful, and it could have been expressed more elegantly, but it's on the nose.