'UNSETTLED Congressional action must pick up where class action has failed' ... Muchnick guest column next week at Publishers Weekly

"The combined collapse of the 'Freelance' and Google settlements offers us an extraordinary opportunity to design the digital rights regime of the future."

C.E. Petit -- 'GBS Update: The Unsatisfactory Dissent in Muchnick IV'

GBS Update:
The Unsatisfactory Dissent in Muchnick IV

C.E. Petit's "Scrivener's Error" blog

http://scrivenerserror.blogspot.com/2011/08/b819x.html

Publishers Weekly: 'Freelance' Decision Effectively Kills 'Google Books'

As usual, Andrew Albanese of Publishers Weekly has the best coverage of yesterday's Second Circuit Court of Appeals decision. See "Second Circuit Rejects Freelance Settlement," http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/48401-second-circuit-rejects-freelance-settlement-.html?utm_source=Publishers+Weekly%27s+PW+Daily&utm_campaign=845ba18c35-UA-15906914-1&utm_medium=email.

The court essentially found "big, general author classes are too broad to be certified, and cobbling together a suitable slate of subclasses in the Google case would be an arduous task," Albanese wrote. He quoted Google Books expert James Grimmelmann as saying that the upshot for the settlement of that case is that it "is now dead. There is no square one: this case is going back to litigation."

In reviewing the complicated history, PW offered this:

Notably, the root issues in the Google and Freelance settlements, including the license by default, are almost identical, and one of the reasons why lead objector Irv Muchnick has been vocal over the years in pushing for a more "industrywide" solution to the cases that includes some kind of royalty system for creators. "For all its problems, the Google Books deal at least includes a future royalty system, which I personally consider the key missing ingredient in Freelance," he wrote last year in an editorial. "That is why I wrote last September to Attorney General Eric Holder and made the decidedly unrigorous recommendation that his office knock some heads together and try to fuse Google Books and Freelance into a truly comprehensive negotiation of all interests: librarians and information consumers, as well as publishers and a few writers’ organizations claiming to represent everyone."

APPEALS COURT REJECTS 'FREELANCE' SETTLEMENT

The Second Circuit Court of Appeals ruled today:http://www.blogger.com/img/blank.gif

“[T]he district court abused its discretion in certifying the class and approving the Settlement, because the named plaintiffs failed to adequately represent the interests of all class members.... We therefore vacate the district court’s order certifying the class and approving the Settlement, and remand for further proceedings consistent with this opinion.”

The full 52-page opinion is at http://muchnick.net/2ndcircuitruling.pdf.

Objectors' attorney Charles Chalmers:

The Court has issued a detailed decision, with thoughtful opinions by the majority and the dissent. My clients will need time to consider it, as the matter will now proceed to a new stage. My clients are of course gratified that the Court accepted their central adequacy of representation objection, which they tried repeatedly to make clear in the district court. They look forward to a revised resolution that insures protection for the 99% of freelance articles involved in the action.