Tuesday, October 06, 2009

At the Bell in 'Reed Elsevier v. Muchnick'

Oral argument in the landmark freelance writers' rights case, Reed Elsevier v. Muchnick, will be heard at the Supreme Court of the United States on Wednesday, October 7, at 11 a.m. Eastern time. The transcript of the session should be published within hours at http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html.

The question before the Court is: "Does 17 U.S.C. Sec. 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?"

In 2007, the Second Circuit Court of Appeals, in an unprompted or sua sponte ruling, answered that question in the affirmative, thus invalidating a global settlement of a copyright dispute between freelance writers and periodical publishers and their electronic database licensees. The settlement was in a consolidation of class actions called In re Literary Works in Electronic Databases Copyright Litigation. That settlement, in turn, was an offshoot of the 2001 Supreme Court case Tasini v. New York Times. A slate of objectors had opposed the approval of the settlement in 2005 by the U.S. District Court in the Southern District of New York, and appealed to the Second Circuit. The Supreme Court this year renamed the case Reed Elsevier v. Muchnick.

Without public elaboration, the newest of the nine justices, Sonia Sotomayor, recused herself from consideration of this case. Though Sotomayor was not part of the ruling at the Second Circuit, which was made by a three-judge panel, it is probable that she participated in procedural deliberations prior to denial of the parties' petitions for rehearing "en banc," or by all the judges of the Circuit. (Also noteworthy is that Sotomayor, as a district court judge in 1997, issued the original ruling in Tasini v. Times; that decision, interpreting the Copyright Act in a way favorable to the publishers in the electronic-database dispute, was reversed by the Second Circuit and the Supreme Court.)

Wednesday's Supreme Court argument time has been allocated to Charles Sims of Proskauer Rose (counsel for lead petitioner Reed Elsevier); U.S. Solicitor General Elena Kagan (arguing the government's position, which also advocates for reversal of the Second Circuit's jurisdiction ruling); and Deborah Jones Merritt (appointed by the Supreme Court to defend the Second Circuit decision). The attorneys for the objector-respondents -- Charles Chalmers and the Stanford Law School Supreme Court Litigation Clinic, directed by Pamela Karlan and Jeffrey Fisher -- will not be making oral arguments. Nor will the attorneys for the named plaintiffs.

High Court watchers will be studying not only whether the justices overturn the Second Circuit, but also how they arrive at their decision. The grounds for the ruling will have a major impact on whether this settlement could be saved and how those efforts would proceed. The highly publicized Google Books settlement, which is currently delayed by objections at the district court level, also could be affected by how Reed Elsevier v. Muchnick plays out.

Here, from our perspective and in chronological order, are the most important overview articles about the case:

Publish AND Perish: Confronting the Post-"Tasini" World
The Charleston Advisor, October 2001

The Promised Bang of the Upcoming Copyright Class Action Settlement for Authors Could End Up Being a Whimper
(written in early 2005 and submitted to trade publications; not published; later published at the Freelance Rights Blog)
http://freelancerights.blogspot.com/2009_03_01_archive.html (scroll down to March 12 post, "Flashback to a Flashback")

Freelance Writers' Class Action Settlement: A Tree Falls in the Media Forest
Beyond Chron, March 12, 2007

LJ Newsmaker Interview: Behind the Recently Rejected "Tasini" Settlement
Library Journal, December 20, 2007
(Part 1 of 2; follow the link within to Part 2)

Congratulations to The Washington Monthly on Two Decades of Willful Copyright Infringement!
Freelance Rights Blog, January 22, 2008
http://freelancerights.blogspot.com/2008_01_01_archive.html (scroll down to January 22 post)

Supreme Court Weighs Reviving Freelance Writers' Settlement -- and Google Case Lurks
Beyond Chron, November 17, 2008

The LJ Academic Newswire Newsmaker Interview: "Tasini" Settlement Objector Irv Muchnick
Library Journal, December 4, 2008
(Part 1 of 2; follow the link within to Part 2)

Freelance Copyright Settlement: On to the Supreme Court
Beyond Chron, March 4, 2009

"Reed Elsevier v. Muchnick" Is About the Hijacking of "Tasini v. Times"
Beyond Chron, September 14, 2009

Google Books, Freelance Settlements Equally Stalled -- and Inextricably Intertwined
Beyond Chron, September 29, 2009


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