Monday, August 22, 2005

OPEN LETTER TO PLAINTIFF E.L. DOCTOROW -- 'Please Stop This Terrible Settlement'

Dear E.L. Doctorow:

Though I don’t know you personally, I’ve read your work and I admire it. The reason I’m writing to you is that I consider you one of the genuine literary giants of our time, and I’m concerned that your legacy will be sullied by having lent your name to the pending copyright class action settlement. Please take a few moments to listen to the following points and consider changing your position. There’s still time -- the deadline for objecting or opting out is September 12.

I have no doubt that you, like all the other named plaintiffs, acted in good faith when you agreed to represent freelance authors in the litigation against the print and electronic publishing industries for their years of systematic and willful infringement of our works originally published in magazines and newspapers. You had no way of knowing that the lawsuits filed in 2000 -- and buttressed by a Supreme Court ruling the following year -- would yield to years of passive mediation before morphing into the worst sellout ever of writers’ rights, as well as an egregious abuse of the class-action system.

But yield and morph it did, and now you know. Mr. Doctorow, this is a very, very, very bad deal. Bad for your fellow authors. Bad for information consumers. Bad for the future vitality and diversity of American journalism and culture.

I’ve been involved in leading one of the several groups of objectors to the settlement, who come from various perspectives. For several months we’ve been submitting arguments and evidence to, and asking questions of, the court. I invite you to peruse my website,, and my blog, Rest assured that should Judge Daniels approve this deeply and fatally flawed settlement on September 27, appeals are inevitable.

There are many problems with both the merits and the procedures of the settlement. But for the moment I respectfully ask you to focus on one of them. It’s the one that all the objectors and opt-outers agree on; the killer provision. Objectors’ attorney Charles Chalmers has labeled it the “License by Default.”

Let me start by explaining that when the class actions were filed, you and the other named plaintiffs were all owners of registered copyrights. The lawsuits said that you were there to represent the holders of registered copyrights only. (Three authors’ organizations, including your own Authors Guild, were listed as “associational plaintiffs.” The plain truth, however, is that despite their good work in many other areas, they had absolutely no business acting as class representatives.)

In the name of E.L. Doctorow and others, what has emerged is a settlement providing relatively decent compensation to holders of registered copyrights (referred to as Category A’s and Category B’s). With the recent amendment to the settlement, a good portion of the B’s will convert to A’s. I and others think the A claim awards should be a lot higher, but it’s true that A’s with a fair number of infringed works stand to make good money: $25,000, $50,000, or as The New York Observer speculated, as much as $100,000. Some of these beneficiaries, if not most or almost all of them, would be you named plaintiffs.

Now, how did you get yourselves in position for this windfall?

You did so by agreeing to give the defendant database companies and participating publishers -- virtually the whole industry -- free licenses in perpetuity for every freelance article written after 1978 and ever carried in a database. There is just no nicer way to put it.

Did you clearly tell the class you'd done this in your notice? No. On the contrary, your lawyers used the notice to mislead the class into believing that only those who made claims, and consciously chose to grant licenses, would be giving up their future rights.

And it’s not just the unregistereds -- the Category C’s -- who are being sold out. It’s also other A’s. If someone sold an excerpt from a book to a magazine or a newspaper, it’s likely the whole book would be licensed to the databases. So if certain A class members, with timely pre-registered copyrights, don’t receive or hear about the notice, or don’t feel like filing claims (they're old, they're dead, they're sick, they're on extended vacations, their children are in deep trouble, they can’t be bothered with class-action notices consisting of page after page of dense legalese in tiny type), they'll never have a chance to prevent Doctorow et al. from granting a license to their freelance works in perpetuity to the same entities that have been knocking them off for years or decades without their knowledge.

That is shameful, Mr. Doctorow. There should be rage in the freelancer community. And you, because of your prestige and comparative security in the literary world, should be leading the protests rather than enabling the outrage.

Yes, you relied on your lawyers. That explanation was plausible then. But no longer. Perhaps you should be asking your lawyers about the chance that a court of appeals will be writing an opinion in a couple of years, in a case with your name on it, supposedly for the purpose of protecting the rights and interests of other writers. I, personally, am confident that such an opinion will call this settlement an unfair, collusive, abusive sellout. When Mr. Chalmers writes our appeal brief, we’ll have no choice other than to make it crystal-clear that the class representatives sold out the class for personal gain.

Do courts actually say such things? You bet.

In Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 620 (1997), Justice Ginsburg wrote that the fairness inquiry in class actions protects unnamed class members “from unjust or unfair settlements affecting their rights when the representatives become fainthearted before the action is adjudicated or are able to secure satisfaction of their individual claims by a compromise.”

In Mirfasihi v. Fleet Mortage Corp., 356 F.3d 781 (7th Cir. 2004), Judge Richard Posner flatly stated that the district judge had approved a settlement selling 1.4 million claimants down the river.

Mr. Doctorow, I wouldn’t relish seeing such characterizations applied to you and your role. But I’ve been working on the problem of writers’ secondary rights for more than a decade, as have many others, and we’re not about to let this terrible settlement stand as the last word. Please think about it and please feel free to get back to me with any questions you might have.

Irv Muchnick


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