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

Andrew Albanese -- Library Journal, 12/4/2008 1:35:00 PM

Part II: The LJ Academic Newswire Newsmaker Interview with Tasini Objector Irv Muchnick
So what’s really at stake if the Supreme Court declines to review the Second Circuit’s decision to quash the Tasini settlement on jurisdictional grounds? By all accounts, the settlement will be dead. That would open the door to potential chaos in the database world, publishers argue, as they may be forced to pull articles for which they do not have rights in the face of a potential wave of individual lawsuits from authors, or, so says the brief from petitioner Reed Elsevier, which also embodies the views of other publisher defendants. “If the panel’s ruling stands,” reads the brief, “the opportunity for a comprehensive settlement and resolution…will be irretrievably lost.”

Of course, while all stakeholders—including Muchnick and the objectors—agree that the Second Circuit ruling should be overturned, the objectors still argue that the actual deal itself still falls short on the merits. In other words, even if the court decides to hear the case and then decides to overturn the Second Circuit, the terms of the settlement itself will likely still remain at issue. In Part II of our LJ Academic Newswire Newsmaker Interview, Muchnick discusses the complexities of the case.

LJ: If the Supreme Court decides to take the case, both parties and the objectors will all argue that the court should overturn the Second Circuit ruling. Can you sketch out the points of agreement?
I can’t speak for the defendants or for the named plaintiffs and the “associational plaintiff” writers’ organizations we’re fighting. I can’t even necessarily speak for all ten objectors; our brilliant attorney, Charles Chalmers, does that—he has put in nearly four years of unpaid work on this, all to be vilified as a “professional objector,” which he is not. My personal opinion is that we all more or less agree that the Second Circuit’s ruling is idiosyncratic and flies in the face of existing precedents.

Beyond legal abstractions, I think we also agree that the “complete peace” that the defendants desire from this case, that is, a fundamental definition of the end of their exposure for decades of “allegedly” infringing freelancers’ newspaper and magazine articles in for-profit electronic products, cannot happen without a formula that includes both registered and unregistered copyrighted works—after all, every heretofore unregistered work is a potential registered one; the rightsholder just has to file paperwork and pay a fee to the Copyright Office.

Where do you disagree?
Where we disagree is on the value of the unregistered copyrights. I want to emphasize that although I have serious problems with the settlement agreement’s damages model, I am talking here about qualitative differences. The settlement parties are trying to put across the concept that the future value of unregistered claims is essentially zero. They proposed—and in a less than clear or straightforward fashion, I might add—a “license-by-default” giveaway of all rights, into perpetuity, to the defendants, for everyone who didn’t affirmatively either opt out of the settlement or exercise the “takedown” option in filing claims.

Tasini has been overshadowed recently by Google’s settlement with publishers and authors regarding the scanning of books still in copyright. Do you have any initial impressions of the Google settlement, relative to yours?
I have not had a chance to study the hundreds of pages of the Google book settlement, but two quick observations. First, a $125 million settlement is not, on its face, peanuts. The $18 million settlement fund in the freelance case, on the other hand, isn’t even peanuts but more like peanut shells. Don’t take this as my stamp of approval for Google—there are a lot of questions, such as the composition of the Registry’s board and so on.

Second, and at the risk of disappointing those who try to typecast me as an obstructionist, I must note that Google proposes to use its technology for a real royalty system, not just as a new way to rip off writers. The preliminary settlement of the Google book-scanning case, brokered by the Authors Guild and the Association of American Publishers, gets some of the things right that the freelance settlement got wrong. Unlike the Tasini settlement, this deal does not appear to be a rights grab in perpetuity at a 0% royalty rate. So in that important respect, the Google case models what the Supreme Court envisioned for the resolution of the freelance case and the kind of solution the parties, and the objectors, together must some way, somehow, bring to fruition.

For those who think that they’ll be cashing Google checks soon, what does your experience with the Tasini settlement tell you?
Don’t take out that second subprime mortgage based on your anticipated windfall! Seriously, the wheels move slowly and that’s frustrating for all of us, economically and otherwise. Class action is a form of leverage, and any settlement is ultimately going to be anywhere from “pennies on the dollar” to a decent sum that is still far short of the claim’s black-and-white statutory value. But that is only one piece of this exercise. The far more important piece, for all writers today and tomorrow and for the diversity and vitality of our culture, is designing the architecture of freelancers’ rights in the new information age. And we’ll only have one shot at it.

Read more Newswire stories:

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

After Stream of Library Complaints, EVA Subscription Services Finally Responds

"Black Wednesday" for Publishers; Oxford Journals Inks China Deal; Highwire hits Five Million Mark

Bestsellers In African History