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.