[originally published 9/6/11 at http://www.beyondchron.org/articles/Now_that_Freelance_Settlement_Must_Be_Renegotiated_Where_are_Voices_of_Authors_Organizations__9488.html
At intervals in these pages, I have been discussing the six-year-long fight by objectors to block a settlement between freelance journalists and the periodical and electronic database industries – a horrible sellout engineered by the Authors Guild, the American Society of Journalists and Authors, and the National Writers Union. On a technical detour to the U.S. Supreme Court, the case became known as Reed Elsevier v. Muchnick. Last month, we objectors won: the Second Circuit Court of Appeals rejected the settlement and ordered the case returned to district court, where holders of copyrighted works lacking Copyright Office registration paperwork (an estimated 99 percent of the class) would be represented by new and adequate counsel.
This article in Publishers Weekly told the story of the demise of “Freelance” – and how the Second Circuit ruling likely dooms the related Google Books settlement, as well. My PW guest column (available online only to subscribers at this point) explains where I think we all should go from here, and adds my longstanding advocacy of a congressionally sanctioned royalty system, including default “compulsory licenses” for public access.
Go ahead and disagree with my perspective if you must. But there is no credible case that the self-appointed class representatives have made any parallel attempt to persuade or engage the general public or to project any kind of vision of what this case is all about in the context of rapidly changing delivery systems for culture content. The position of the three “associational plaintiff” authors' organizations remains basically: “Writers shouldn't worry their pretty little heads over what we negotiated in secret mediation for half a decade, and without even filing a motion for injunctive relief. We know because our lawyers told us so.”
A perusal of the three writers' groups websites suggests that only the NWU has even reported the Second Circuit decision; none has offered follow-up comment or guidance. For years, sources inside the NWU (where I was assistant director, 1994-97) have been telling me they hated the settlement struck by the other two, but pleaded that their hands were tied by a provision prohibiting any statement that might undermine it prior to court approval. Well, what about now – after the appellate court has rejected the settlement?
Counsel for both the defendants and the plaintiffs last week filed ritualistic motions asking the Second Circuit to reconsider. I expect those motions to fail, but more important than my crystal-ball-gazing is what this development reveals about who's running the writers orgs' show.
Publishers' attorneys bill by the hour, and their job is to run out the clock on infringement statutes of limitations, real and perceived. Ruling-class vanity and power-tripping also dictate that this latest embarrassing court ruling and precedent (piled atop the 2001 Supreme Court decision in Tasini v. New York Times) be fought to the bitter end.
But the only thing going on with the plaintiffs' attorneys is a desperate attempt to rescue their multimillion-dollar contingency fees for a failed settlement. Tellingly, these lawyers are now arguing to the Second Circuit that even if the settlement were unfair, as the court has “mistakenly” held, then they should have been ordered to tweak it, in lieu of having the case sent back to the district court with new and adequate representation for the super-majority of the class who were treated unfairly. Kindly explain to me how the named plaintiffs, or anyone else awaiting settlement claims, are served by this posture.
It is as easy to call objectors names as it is to tell lawyer jokes. But now is the time to get back to the table, restructure this bad settlement, and pony up enough money to recover for freelance journalists at least peanuts, rather than peanut shells, stemming from decades of nose-thumbing and systematic corporate piracy.
Beyond Chron contributor Irvin Muchnick, author of CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling's Cocktail of Death, blogs at http://freelancerights.blogspot.com and http://concussioninc.net.