Sunday, May 22, 2005

The UnSettlement: Some Bullet Points

1. There's indisputable evidence of infringement of both unregistered and registered copyrighted works at new-generation database companies like Find Articles and HighBeam. (See the declaration and exhibits in support of my motion to vacate at

2. There's also indisputable evidence that some/much/most/almost all of the content of these new-generation database companies is supplied by old-school database companies, which are also released parties in the consolidated class action, such as Thomson/Gale and ProQuest.

3. On March 2, 2005 -- just weeks before the announcement of the preliminary settlement -- one of the associational plaintiffs, the National Writers Union, launched a public campaign against FindArticles. (See, “Are Your Copyrights Being Violated?”, on the public pages.)

4. At least two intelligent questions about HighBeam (neither posted by me, by the way) have been raised on the query page of the associational plaintiffs’ information website, The answer from the NWU, the Authors Guild, and the American Society of Journalists and Authors clearly seems to be that HighBeam is not covered by the settlement release.

5. Mediator Kenneth Feinberg appears to take the same position in his declaration in support of the brief opposing my motion to vacate.

6. A fair reading of the opposition brief itself is that plaintiffs’ counsel have a different view. They say in essence, We have sued and settled with everyone there is to sue and settle with.

7. The class representatives or “named plaintiffs” are also impacted by this issue.

8. In sum, there are compelling reasons to question whether the class has been adequately represented in the preliminary settlement.


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