Thursday, March 24, 2011

'Google Books' Settlement Goes Down; 'Freelance' Decision Still Pending

Almost everyone reading this already knows that on Tuesday the Google Books settlement was rejected by Judge Denny Chin.

James Grimmelmann has his usual good analysis up online. So does Andrew Albanese of Publishers Weekly.

There is no need for me to duplicate or attempt to top them here. The only quick point I'll make is that the copyright and class action worlds now will be watching our upcoming Freelance settlement resolution at the Second Circuit Court of Appeals with keen and undivided interest. That decision, if the three-judge panel chooses to frame it broadly, could well set standards for future actions.

It's obvious that much of the Chin ruling on Google Books -- especially the parts about inadequate representation of the class and the "opt out / opt in" dilemma -- could be applied to Freelance, more or less word-for-word.

At the level of policy, I continue to hope that all these essentially similar cases get fused and Congress gets to work on the compulsory-license-and-royalty regime that is the real and ultimate solution.


Anonymous Moxie said...

Irv, you are being far too simplistic in your assumption that the "Muchnick" copyright case is so similar to "Google" that the courts would just, poof, merge them.

The "Muchnick" case very specially contains ONLY those pre-2001 writings that were addressed in the Tasini decision. The Justices then, and since, have been very specific that there is nothing about this case that is anything other than a simple class-action settlement (they had no intention of setting precedent). And, as with any other class-action settlement, there is no legal requirement that every single claimaint needed to have had the opportunity to opt out. Only that "enough" effort was made and "enough" did receive notice.

Also, you are forgetting that the whole idea of an ASCAP-style royalty system was made moot by Tasini. Why? Because the day after that decision, every freelance contract contained a new clause that required writers to assign electronic reproduction rights to the publication. Thus, writers are officially out of the loop as far as any chance for royalties on works now being created. (Unless they have been able to write a very nice contract for themselves.)

The book authors now dealing with the Google issue have an entirely different system of payment, in which book sales are strictly monitored (similar to ASACAP). Yes, the "Muchnick" and "Google" cases both involve copyright infringement. Beyond that, the two cases are NOT the same.

6:43 AM  
Blogger Irv Muchnick said...

Who needs publishers' advocates when there are people like Moxie ready to argue that every victory for writers is really a defeat? It will come as news to readers of this blog that the United States Supreme Court "had no intention of setting precedent" and that a generation of all-rights contracts imposed in defiance of that non-precedent are eternally irreversible.

7:30 AM  

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