Tuesday, March 29, 2011

'Google Books Court Rejection Shows Copyright Litigation Is Exhausted' ... today at Beyond Chron

by Irvin Muchnick

Time for Congress to Help Pave the Information Highway

In contrast with many fellow writers, I believe Google does much more good than bad. I also think the Mountain View Leviathan’s audacious book-scanning project holds great promise as a public utility and comprehensive literary marketplace. But last week’s decision by a federal judge to torpedo Version 2.0 of the Google Books settlement, negotiated by one publishers’ and one authors’ trade groups, http://www.blogger.com/img/blank.gifhas taken the work of private class action attorneys close to their richly deserved dead end.

The final cul-de-sac may be the long-anticipated ruling by the Second Circuit Court of Appeals in the related freelance journalists’ case against electronic database companies; which was known at the Supreme Court as Reed Elsevier v. Muchnick when the justices kicked it back down to the lower courts last year. (I am the lead objector to that particular hash, whipped together by the Authors Guild, the bad cook of the Google Books fiasco, in collaboration with sous chefs from the National Writers Union and the American Society of Journalists and Authors.)


Friday, March 25, 2011

Ahoy, Congress! Google Books Objector Pam Samuelson's Policy Agenda

Pamela Samuelson and I have two things in common. And no, neither one is a MacArthur fellowship or broad expertise in the interplay of copyright and public policy -- those are all Samuelson's.

But Pam was the highest-profile objector to the Google Books settlement, which Judge Denny Chin torpedoed this week, and I lead a slate of objectors to the "Freelance" journalists' electronic database settlement, still awaiting a ruling at the Second Circuit Court of Appeals. We also have a passing acquaintance in the small hamlet of Berkeley, California. So when the Google news hit the other day, I sent Pam a note of congratulations.

Another thing we most assuredly do not share is access to The New York Times. The Newspaper of Record has twisted itself into journalism-not knots avoiding explanation of who is the "Muchnick" of last year's United States Supreme Court case, Reed Elsevier v. Muchnick. But Samuelson, quite appropriately, was sounded out by The Times on the Humpty Dumpty fallout of Google Books. See "Google's Next Stop May Be in Congress," http://www.nytimes.com/2011/03/24/business/media/24google.html?src=busln.

“The next thing to do is think about going to Congress and getting legislation that would make particularly orphan works available to the public,” Samuelson told The Times.

Yesterday I asked Pam whether the time was ripe to push Congress for a solution to more than the narrow "orphan works" problem. I pointed out that I and other objectors in the Freelance case believe that the ultimate solution is Congressionally-codified "compulsory licenses" and royalty systems, for articles as well as books (the distinctions between such categories are increasingly irrelevant in the new information culture).

"I am working on legislative alternatives to the GBS and an extended collective licensing regime is an interesting idea," Samuelson replied (and gave me permission to post).

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.

Friday, March 18, 2011

Dear Attorney General Holder: Please Coordinate the Pending ‘Google Books’ and ‘Freelance’ Cases

Yesterday I used the occasion of The New York Times’ announced new pay service as a pretext to point out again that The Times, along with just about the entire newspaper and magazine industries, is systematically ripping off a generation of freelance journalists, including myself. The legal dispute over these practices is pending at the Second Circuit Court of Appeals after the Supreme Court last year, in a case called Reed Elsevier v. Muchnick, returned it to the lower courts for adjudication of its merits.

But I am not a whiner. There is a solution at hand: a fair and reasonable royalty system, loosely modeled after the music industry’s ASCAP, which will keep the spigot of digital information flowing while making sure independent creators can participate fairly in the resulting revenue streams – rather than allowing corporate publishers to illegally hoard intellectual property and charge users “all the traffic will bear.”

In a September 2009 letter to Attorney General Eric Holder, I argued that a key to this process would be government intervention to coordinate my “Freelance” case with the high-profile Google Books settlement. The Justice Department, supporting objectors to that settlement, had already filed a “Statement of Interest” in Google, which sent the parties back to the drawing board for a revised settlement proposal -- still under review by Judge Denny Chin (who, since then, has been promoted to the Second Circuit Court of Appeals himself).

In my view, the Google and Freelance cases involve identical root issues, and a coordinated resolution would be in the public interest.

Below, I reproduce again my letter to Attorney General Holder.

For further background, see my interview in the April 5, 2010, issue of Publishers Weekly: http://www.publishersweekly.com/article/455387-The_Objector.php. PW’s Andrew Albanese calls Freelance “the central rights battle of the digital age.”


September 23, 2009

Attorney General Eric Holder
U.S. Department of Justice
950 Pennsylvania Ave. NW Washington, D.C. 20530

Dear Mr. Attorney General:

As the named respondent in the current Supreme Court case Reed Elsevier v. Muchnick (scheduled for oral argument on October 7), I address the expressed interests of the United States both in that case and in the Google Books settlement (hereinafter “Google”). My purpose is to advance the Government’s appreciation that the two cases are best discussed, prospectively and in the public interest, as a package.

In Reed Elsevier (previously known as In re Literary Works in Electronic Databases Copyright Litigation – hereinafter “Freelance”), the Solicitor General has joined both the settlement parties (the defendants plus the plaintiffs) and the objectors in asking the Court to overturn a sua sponte ruling by the Second Circuit Court of Appeals that the federal courts have no jurisdiction over settlements of copyright disputes including works that were not registered. (I am a respondent-objector.)

In Google, the Antitrust Division and the United States Attorney for the Southern District of New York filed a Statement of Interest with Judge Denny Chin outlining concerns not only in the area of antitrust, but also with the proposed settlement’s fidelity to Rule 23 (class action) and copyright law. The Government brief was the clear impetus for the parties’ subsequent motion to postpone the fairness hearing.

The Google settlement parties have indicated to the District Court their intention to use the period before a November 6 scheduling conference to revise the proposed settlement – based both on the Statement of Interest and, more broadly, on the Government playing a facilitating role in the drafting of revisions. It is in that context that the Freelance respondent-objectors seek your good offices in broadening the scope of the negotiations in both cases. Such a step, we believe, not only would serve judicial efficiency; it also would improve public policy in the evolving copyright architecture of new technologies.

Google and Freelance are at different procedural stages. The two cases, however, have striking and compelling similarities. Most fundamentally, both are copyright class actions involving claims by authors of the unauthorized reuse of their works by new digital publishing products. Beyond that, both cases have controversial settlement mechanisms turning on the deployment of “opt out,” rather than “opt in,” definitions for the granting of future rights to the defendants. This flaw in the Google settlement was particularly and aptly identified in the Government’s Statement of Interest.

Finally, the two cases share a named plaintiff, the Authors Guild, and its counsel.1 (1 In Freelance, the Authors Guild is a co-associational plaintiff. It is worth noting that in Google, the other two co-associational plaintiffs of Freelance – the National Writers Union and the American Society of Journalists and Authors – have filed objections essentially identical to those of the Freelance respondent-objectors over what we termed the settlement’s “license by default” provisions.)

The Government’s Statement of Interest in Google called attention to links between the two cases at p. 25, in the discussion of “Potential Foreclosure of Competition in Digital Distribution.” The brief cited the Order for Final Approval of Settlement and Final Judgment in Freelance, noting that it provided for “numerous companies beyond the named defendants [to be] allowed to obtain benefits of settlement.” In this way, the Government supported the argument that the Google settlement was defective on antitrust grounds.

Respectfully, the Freelance respondent-objectors believe that there are much stronger links between the two cases, as noted above. Further, the ability of a spectrum of publishers to obtain the benefits of settlement is far from the most pertinent set of facts in Freelance. While the antitrust principles propounded in your Google brief are well judged, the real connections between Google and Freelance revolve around Rule 23 and copyright. We are gratified that the Government’s Statement of Interest in Google went out of its way to offer cogent analysis in all three areas.

In Freelance, the settlement granted benefits to “numerous companies” simply as a consequence of the pattern of infringement and the range of entities exposed by it. Google has a single defendant. Freelance has several named defendants, and the universe of infringements encompasses the systematic practices of an entire industry
of periodical publishers and their electronic database licensees – collectively identified as the Defense Group. Thus, the sharing of the benefits of settlement was not a function of antitrust sensitivity; it was simply a way to describe the population of defendant-infringers (all of which, due to the unusual and complex nature of the settlement, also stood to “obtain benefits” therefrom).

Even so, the Freelance respondent-objectors are quick to point out that, with this passage, the Government has put its finger on the central solution tying together both cases: the need for comprehensive, industry-wide royalty systems. In their current forms, the Freelance settlement has the comprehensiveness but not the royalty system; Google has the royalty system but not the comprehensiveness.

During the public debate of Google, there has been a great deal of discussion of “compulsory licenses.” The Freelance respondent-objectors are not opposed to such arrangements per se; the main concern on our end is that they not be promulgated for the exclusive benefit of private litigation parties, and it is questionable whether that goal can be achieved by the courts rather than by Congress. In her recent testimony before the House Judiciary Committee, Register of Copyrights Marybeth Peters spoke eloquently on this point, and it has become the nexus of the successful resolution of both Google and Freelance.

The Supreme Court review of Freelance is on other grounds. But certainly one possible outcome of Reed Elsevier v. Muchnick – the one desired by the respondent-objectors – is a remand to the Second Circuit for the express purpose of reviewing the merits. Another possible outcome, of course, is that the Supreme Court will affirm the Second Circuit on the jurisdiction question under review, thus killing the settlement. We may know which path we are on by December or January. In the event the case does return to the Second Circuit, a possible decision there on the compulsory license issue would fundamentally affect Google.

For these reasons, the Freelance respondent-objectors request that the Government use its facilitating role in the renegotiation of the Google settlement, first and foremost, as a platform for broadening those negotiations. They should include the Freelance respondent-objectors, to be sure, but not only us; all stakeholders in the emerging copyright landscape should have their interests heard and incorporated. From a policy perspective, perhaps the most egregious lapse to date has been the disenfranchisement of librarians and information consumers in the rush to tailor litigation settlements. The resulting pastiche of proposed solutions is poorly integrated and has ill-served all parties.

We believe that the Government’s constructive intervention in Google marks a hopeful turning point in this process. Coordination of the Google and Freelance settlements would be the next step.

Thank you for your attention to this proposal.

_s/_ Irvin Muchnick


Department of Justice
Christine A. Varney, Assistant Attorney General for Antitrust
William F. Cavanaugh, Deputy Assistant Attorney General, Antitrust Division
Preet Bharara, United States Attorney for the Southern District of New York
John D. Clopper, Assistant United States Attorney, Southern District of New York

All Google counsel of record

All Freelance counsel of record

Thursday, March 17, 2011

Steal This Article: While The New York Times Sells My Copyrighted Work, Allow Me To Give It Away to You!

The next generation of copyright scholars still awaits court rulings in two landmark cases. One is the Google Books class-action settlement, engineered by the Authors Guild and the Association of American Publishers; Judge Denny Chin is handling that one even though he has been elevated from U.S. District Court to the Second Circuit Court of Appeals.

Then there’s the global settlement on behalf of freelance journalists against the periodicals industry, which the Authors Guild concocted in collaboration with the National Writers Union and the American Society of Journalists and Authors. After a group of objectors, including your humble blogger, appealed what we consider the most abominable sellout in the history of sellouts, the Supreme Court gave the case the exquisite new handle Reed Elsevier v. Muchnick before sending it back to the Second Circuit for consideration of the merits of our objections.

Now this week The New York Times has announced that there is a new pay wall in front of articles from its online archive. These include a number of my own pieces, the secondary rights to which the Supreme Court, in its 2001 decision Tasini v. Times, confirmed belong to me, not The Times. The 7-to-2 decision by the justices was one of the historical fraction of cases in which Antonin Scalia and Ruth Bader Ginsburg both voted in the majority.

On December 17, 1989, I did the cover story for The New York Times Magazine, about football star Joe Montana. A few days later I impressed the hell out of my father-in-law when he answered a phone call for me from Joe, who was apologizing for having been baited into a quote in a San Francisco Chronicle article that mistakenly accused my Times Magazine story of intruding in his private life.

With the rejiggering of TimesSelect, The Times – which like many other publishers has thumbed its nose at the Supreme Court on the electronic rights issue for the past decade – is selling “Joe Montana: State of the Art,” rather than simply profiting from advertising hits on it. Because, you see, The Times represents the new access; whereas I and other independent writers, photographers, graphic artists, and videographers, who expect our fair share of the revenue in the new digital economy, represent old-fashioned copyright obtuseness.

But why pay for what you can get for free? Just send me an email at info@muchnick.net, and I’ll shoot back to you a lovely PDF file of the Joe Montana article, sans photos.

Or you can mail a check for $19.95 to me, at P.O. Box 9629, Berkeley, CA 94709, and I’ll send you both a free hard copy of the Montana piece and an autographed copy of my book CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death. A bargain at any price!