Saturday, October 31, 2009

Plugola Central: CHRIS & NANCY Author Muchnick in the Media

Monday, October 26, 2009

Latest on Google Books

From Andrew Albanese of Publishers Weekly:

"Google Opponents Urge Court to Reconsider Restrictions on Revised Settlement"

Friday, October 16, 2009

Interview on KRON 4 News in San Francisco

On Wednesday I was interviewed on the KRON 4 Evening News in San Francisco about my new book CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling's Cocktail of Death. At the beginning of the interview is a quip about Reed Elsevier v. Muchnick. The link is

Tuesday, October 13, 2009

Supreme Court Reflections, Part 5 – Ginsburg Nails Publishers’ Inconsistency on Registration

In a revealing exchange, Justice Ginsburg pressed Charles Sims, representing Reed Elsevier and the other petitioner-defendants, on whether the publishers had taken inconsistent positions: “That is, back in the district court before there was a settlement, you urged before the district court that 411(a) was a jurisdictional bar and that that precluded certifying a class that included the non-registered copyright holders. You did make that argument in the district court, and now you are saying -- you are confessing error, that was wrong?”

None too diplomatically, Sims confessed to being guilty only of loose language – “exactly the loose language that this Court was guilty of” in a couple of cited cases.

“Well, you shouldn’t use loose language,” Justice Antonin Scalia countered dryly, “especially when it’s the same loose language, supposedly, that seems to have been used by all the courts …”

If this were Moot Court, Sims would not have gotten the highest grades. Assistant Solicitor General Ginger Anders, arguing for the government, fared even worse, contradicting her own written brief when she took the fence-straddling position that copyright registration prior to suing could not generally be waived, but perhaps could be waived in this particular case.

Amicus Merritt had the best chemistry with the justices in oral argument. Of course, she also, in a sense, was handed a gift in the utter absence of subtlety in the position that the courts simply did not have jurisdiction over unregistereds even in a settlement scenario.

In my mind, Merritt did not persuasively engage Breyer on the need for creativity with new technologies. Merritt’s reading of the legislative history – or, as she called it, the “story” of copyright – as technology-neutral was met quizzically by Breyer, who wondered, “In 1909 Congress thought all this through with the databases and so forth?” Breyer's question drew laughter in the gallery.

Supreme Court Reflections, Part 4 – The Counterintuitive Roles of Stevens and Breyer

For me, what made the Stevens and Breyer bull’s eyes even more delightful is that they came from the very two justices who dissented from the Supreme Court’s 7-2 majority in favor of the authors in Tasini v. Times.

I have argued repeatedly that Reed Elsevier v. Muchnick is a kind of Tasini II – or, at the very least, the real world’s first nuts-and-bolts application of Tasini principles.

So maybe the intellectual explanation for Stevens’ and Breyer’s 2001 dissents is not so much that they were less concerned about writers’ rights as that they were more focused on the long-term vision of public access to copyrighted works. In my reading, Ruth Bader Ginsburg’s majority opinion in Tasini clearly pointed the way toward a royalty system as the access solution. Perhaps Breyer has evolved into the Court’s most articulate champion of that solution.

Supreme Court Reflections, Part 3– Breyer and the Case for a Royalty System

Seemingly out of nowhere and rather brilliantly, Justice Stephen Breyer found a way to make a compelling case for a royalty system:

“… I mean, the problem, I take it, realistically is this: let's take a group of people who want to make databases; now they want to use copyrighted material. There is a subset of people who have written it they can't find, so they say here's what we will do. We will take $100 billion, and we will put it in a fund, and like ASCAP, that fund can administer this money for the benefit of anyone who turns up.

“ Now, maybe that's illegal under some law. Maybe the class isn't right. Maybe they can't get proper representation. Maybe it's inadequate, et cetera. But what I … fail to see, is how -- whether you could do that or not do it has anything to do with registration, because we are talking about the people who aren't here, all of whom, if you ever bring suit when he's found, will register the copyright. The only reason they haven't registered, we don't know who they are, that's why. Maybe they have registered, for all we know.”

Perhaps we can’t enact a royalty system because it would yield an unfair result, Breyer mused. On the other hand, “Maybe it won’t, by the way…. It depends on what the terms of the settlement are. We could have a subclass that allows a subset of those people to come into court. No reason you couldn't. So I don't know whether or not it's true that they won't register when they are found.”

When I describe Justice Breyer’s remarks as coming out of nowhere, I am referring to the fact that this passage marked his only vocal participation in the hearing. I am not slighting his logic. Breyer actually tied everything together, organically and impeccably, when he added, “It’s rather surprising that this law [jurisdiction] is the one that will answer that question.” In her rejoinder to this point, at least, Deborah Jones Merritt, the Court-appointed amicus defending the Second Circuit decision, came off as more glib than convincing.

Supreme Court Reflections, Part 2 – Stevens and the Master Challenge

I was heartened by the common-sense cut to the chase of the senior associate justice, John Paul Stevens. “I really don’t understand,” Stevens said, “why it makes any difference whether you call a requirement mandatory or whether you call it jurisdictional in terms of the fairness of settlement … [A]s a practical matter, it doesn’t seem to make any difference.”

Earlier, Stevens had raised the same question. Later he reinforced it yet again: “[W]ould you not make all the arguments directed at the fairness of the settlements and so forth if it were merely mandatory?”

Strong stuff.

Supreme Court Reflections, Part 1 – Introduction

In this series of posts, I will highlight what I think were the most intriguing passages in the oral argument at the Supreme Court last Wednesday in Reed Elsevier v. Muchnick. The full transcript, including the input of six justices, is at (Sotomayor, who had recused herself, was not there; Thomas and Alito said nothing.)

First, a disclaimer on what I don’t intend to be conveying with these observations. I do not presume to be predicting how the justices will rule. Anyone who answers that question with much more than “we shall see” is blowing smoke. For one thing, from the outside we have no idea of the weight of oral argument in the overall deliberation.

Second, experienced Supreme Court watchers will tell you that when a justice raises a point, it is best understood as part of a conversation with the other eight justices, rather than necessarily as a direct address to the advocate to whom he is speaking. When such indirect dialogue occurs, the conversation could be about this case; or if it could be about the general drift of the Court in a family of cases; or it could be about something else altogether. Again, who are we to say? The final decisions themselves can be hard enough to interpret.

The final reason I’m not making a prediction is simply this: I’m not sure what would constitute “winning” with respect to the specific question on jurisdiction that the Supreme Court accepted for review. If the Second Circuit ruling is upheld, the settlement is dead. If the Second Circuit is overruled, it will face, on remand, review of the merits of the objectors’ case against the settlement. If we were in the Wild West, this settlement would be summarized as “wanted, dead or alive.”

Thursday, October 08, 2009

Coverage of Yesterday's Supreme Court Argument

I will have more to say later on my own impressions of yesterday's oral argument at the Supreme Court in Reed Elsevier v. Muchnick. (Quickly: Attending the hearing along with my son Jacob, and with attorney Charles Chalmers and his wife Laurel, was an incredible experience. I was struck by the acuity all six justices who posed questions -- including sharp insights from a couple of unexpected sources.)

I also will comment down the road on what happened yesterday at district court in New York: the new target of the Google settlement parties to have a revised deal together next month.

Here are quick links to the Reed Elsevier v. Muchnick coverage I have read:

* Lyle Denniston at SCOTUS Blog: "Analysis: Copyright settlement may be in doubt"

* Exclusive Rights (a copyright law blog): "Supreme court hears oral arguments in Reed Elsevier"
The author of this post -- presumably attorney Shourin Sen -- was working from the transcript and didn't know at least some of the background, as he wrote: "Justice Sotomayor, who was as an intellectual property practitioner before being appointed to the Southern District of New York, did not ask a question." Sotomayor was not at the hearing -- she had recused herself.

* C.E. Petit at Scrivener's Error: "GBS Update"
Petit correctly calls Reed Elsevier v. Muchnick "the elephant in the room."

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

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) (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 (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

Thursday, October 01, 2009

Google Books And Freelance Settlements Are Inextricably Intertwined (full text)

[originally published on September 29 at Beyond Chron,]

by Irvin Muchnick

Faced with 400-plus objections from around the world, including a devastating brief by the U.S. Department of Justice, the settlement parties in the Google Books copyright case wisely asked District Court Judge Denny Chin for a second delay in the fairness hearing for consideration of their proposed deal, while they work behind the scenes with the government on revisions. The court is going ahead with a hearing on October 7, but not much of importance is expected to happen there.

This is a major victory for a makeshift coalition of Google’s competitors, information consumers, foreign governments, and authors. The latter were about an inch away from getting screwed in federal court yet again by – are you ready? – the Authors Guild.

It so happens that the oral argument at the Supreme Court in the freelance writers’ rights case, Reed Elsevier v. Muchnick, was also scheduled for October 7. That one is still on, and the elimination of the conflict is good: you don’t want Roger Mayweather’s comeback fight going head-to-head on pay-per-view with UFC 103.

Uh, that was a joke – I’m the Muchnick of Reed Elsevier v Muchnick.

But as I asserted in my September 14 Beyond Chron column, the two cases are linked. Now I would like to explain in more depth why “Google” and “Freelance” are, in practical terms, all but joined at the hip. Though they are at different procedural stages and are driven by different facts, they are also indistinguishable philosophically and in their long-term policy implications. I made these same points last week in a letter to Attorney General Eric Holder, the full text of which can be viewed at

Again, part of the story is that the Authors Guild quarterbacked both cases – a sideshow that is rapidly descending into farce. The Guild’s partners in Freelance, the National Writers Union and the American Society of Journalists and Authors, were among the people and entities filing Google objections. And not just any objections. NWU and ASJA argued that Google’s “opt-out” rather than “opt-in” algorithm “turns copyright on its head.” The objectors in Freelance have lodged the exact same criticism for more than four years.

If the Supreme Court sends Reed Elsevier v. Muchnick back to the Second Circuit Court of Appeals for review of the merits – the outcome desired by the respondent-objectors – there may well be a ruling down the road on the legality of opt-out vs. opt-in (or, as we call it, “license by default”).

Once more risking the anger of some of my writer-friends who don’t want to negotiate and are stuck in old paradigms, let me say that I personally believe default or “compulsory” licensing is very much part of the solution to the thorny problems of rights management in new technologies. But such an arrangement has to be tied to comprehensive negotiations among all the stakeholders, concluding with an industry-wide royalty system loosely modeled after the music industry’s ASCAP. As Register of Copyrights Marybeth Peters noted in her recent testimony before the House Judiciary Committee, it is questionable whether such licenses can be compelled by private litigation rather than by Congressional action. In my mind, such action would consist of sensible copyright reform, probably accompanied by antitrust waivers, to keep the information superhighway paved for all while fairly sharing revenues between publishers and authors.

We’ll have a much clearer sense of where all this is headed after the Supreme Court rules on the jurisdiction issue in Reed Elsevier v. Muchnick, either late this year or early next. In the meantime, I encourage everyone to exchange your plane tickets to New York on October 7 and, instead, visit our beautiful nation’s capital.

Irvin Muchnick’s CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death ( should be landing in bookstores just about the same time the Supreme Court website publishes the transcript of the oral argument in Reed Elsevier v. Muchnick.