The LJ Academic Newswire Newsmaker Interview: Tasini Settlement Objector Irv Muchnick (Part I)

Andrew Albanese -- Library Journal, 12/4/2008 1:17:00 PM

On December 5, the U.S. Supreme Court is scheduled to decide whether to review last year’s Second Circuit appeals court decision shooting down a settlement in the landmark Tasini v. New York Times, the long-running case to resolve compensation issues for freelance writers whose works were included in electronic databases without permission. While the case has been overshadowed in recent weeks by the massive Google Book Search settlement, sorting out Tasini remains a key, unresolved steppingstone to the digital future.

In December 2007, following the Second Circuit’s controversial ruling, LJ Academic Newswire interviewed author Irv Muchnick, one of the ten objectors who maintain that the terms of the Tasini settlement are unacceptable but also that the Second Circuit’s decision to quash the settlement on jurisdictional grounds is wrong. When I mention to Muchnick that it has already been a year since our last interview and seven years since the Tasini Supreme Court ruling, he quickly notes that it has been 15 years since the suit was filed and he first became involved. Indeed, the wheels of justice grind slowly. Technology, on the other hand, zips along.

We caught up with Muchnick again to ask where things stand and whether there are potential lessons from—and, perhaps, lessons for—the recent Google settlement.

LJ: OK, do you have any insight or even a gut instinct as to what the Supreme Court will do, if anything, on December 5th?
IM: The Supreme Court justices move in mysterious ways and appropriately so. As I understand it, what we will hear from them ranges from a one-line denial of the settlement parties’ appeal petition, which would disappoint both parties and the objectors, to a comprehensive reexamination of the merits of the settlement, which the other objectors and I, obviously, would relish. But there’s a lot of in-between, too. Friday, December 5, marks the third time we have been listed on the docket for the court’s conference. No one knows if this means the justices didn’t get to us in the previous two conferences, or if they’re wrestling with our knotty problem with exceptional vigor. One observer said that if the Court were inclined simply not to hear the case, it would have already said so, but I don’t think you can take that comment to the bank.

As you noted, it has been 15 years since the initial suit. Obviously, you’re not in this for the money. What drives you to keep going?
Thank you, but there’s just no answer to that question that won’t come off as pompous or self-aggrandizing. I have four children. Somewhere along the way, the dream of a fair and balanced ASCAP-style royalty system for writers, giving them a reasonable share of the revenue in the transforming of new digital media while also expanding the public’s access, became my fifth child. I’d say, “Don’t tell my wife,” except I’m afraid she already knows.

After all this time, and with much more wrangling potentially still to come, can there still be a meaningful conclusion to Tasini?
The details are sticky, but I believe doable. Call me crazy, but I think we are, today, closer to the royalty system I’ve envisioned than we have ever been. I say this for two reasons. First, the freelance writers’ settlement as we’ve known it is dead. It is dead because either the Second Circuit’s odd ruling will stand, and holders of unregistered copyrights cannot participate in class-action litigation even for settlement purposes, or it is dead because the objectors will have exposed the illegality of a settlement based on “license-by-default” and without the royalty system explicitly recommended by the Supreme Court in Tasini.

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Part II: The LJ Academic Newswire Newsmaker Interview with Tasini Objector Irv Muchnick

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