Sunday, August 28, 2005

Co-Objector Todd Pitock: 13 Reasons Why I Oppose the Settlement

Freelance journalist Todd Pitock -- a member of the American Society of Journalists and Authors, and a long-time member and grievance officer of the National Writers Union -- writes: “A lot of people are asking why I became an objector. Here’s what I tell them.”

* $10 to $18 million of what? The NWU long claimed that the d-base companies were worth billions, and that they profited by unfairly using our labor. What were the damages? We don't know because it appears as if no discovery was ever done. Likewise, there is no explanation of the forensic accounting. The ASJA used its Paycheck reports to establish some value, but Paycheck is a limited measure. Although it's true that individual articles have little value, it's the aggregation of articles that gives a d-base its value, which results in subscriptions and advertising. We're being given numbers that lack any context.

* The $ figure is in any case misleading. It's not $10m-$18m to settle our claims. According to the terms, writers get 65% of the listed amounts to address the past infringement. The other 35% is compensation for signing away future rights. So it's $6.5m-$12m to settle the past violations and $3.5m-$6m to acquire future rights. That hasn't been made clear in the announcements.

* The amounts for individuals are appalling. After taxes, Category C's will receive as little as $2.65 and a maximum of about $40.

* In contrast to the paltry amounts rec'd by writers, the lawyers are guaranteed to do extremely well -- $3.8 million off the top. In reality, the settlement is not $10m-$18m but around $5m to $13m (after deduction of attorneys’ fees and administrative costs). (When I raised this with then-ASJA president Lisa Collier Cool, she asked if I was suggesting that "after hundreds of hours of work ... the lawyers didn't deserve to be paid." As I pointed out, if I suppose they put in 999 hours, that's about $3,800/hour -- compared with $2.65 for writers, a figure that makes it unlikely many people will bother to go through the rigamarole of filling out the forms. And no, I'm not against lawyers being paid. The issue, though, is that their compensation should be reasonably in line with the quality of the work they did.)

* The attorneys’ fees are not based on the success of the settlement. If publishers reach the $10m threshold, the class (writers) will have received about $5 million, compared to roughly the same amount for the lawyers and administrators. Such scenarios are precisely what gives class actions a bad name.

* Once publishers pay the minimum $10m, they are not required to pay more. That is, they get to keep what they don't pay. No fund is being set up.

* If publishers do pay $18m, they're free and clear, even if not all infringed writers have been compensated.

* If the money were to run out after payments to Category A's, Category B's and C's (the overwhelming majority of the class) will get nothing -- but they still lose the right to be compensated and they lose the right to pull their work from the d-bases.

* Writers who do not act lose all rights to act under the settlement.

* The settlement is utterly confusing. Accomplished, intelligent writers don't understand the categories. Efforts to clarify and question have largely been met with argumentative responses. No discussion of the settlement terms ever happened. The class was presented with it as a fait accompli.

* Under terms of the settlement, leaders of the writers organizations are barred from discussing its shortcomings. In essence, they've become agents of the publishers. The way this deal might work would be to campaign to have writers accept the 65%, which would force the publishers to negotiate anew for future rights or to improve the terms now. Because of the gag provision, however, no such campaign can take place.

* Why was Jonathan Tasini authorized to negotiate on behalf of the NWU? Tasini, a former NWU president, had no standing and did not represent the rank-and-file.

* One of the lead attorneys on our side has switched to the other side -- an egregious conflict of interest.

I could go on. It's a rotten deal. We sent children to do the work of grown-ups and they got spanked. Or more specifically, they became convinced, based on a questionable reading of a legal case in 2000, that we did not have a case because 99.9% (ASJA's Jim Morrison's estimate) of writers didn't register their copyrights.


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