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 | The LJ Academic Newswire Newsmaker Interview: Author Irvin Muchnick, One of Ten Objectors To Appeal the "Tasini" Case Settlement
For many, the 2001 landmark New York Times v. Tasini Case had all but faded from consciousness. Last week, however, a panel of the Second Circuit Court put it front-and-center once again, rejecting (2-1) a 2005 agreement hammered out by lawyers for publishers and three writers' associations, the National Writers Union, the Authors Guild, and the American Society of Journalists and Authors.
In ruling on an appeal lodged by ten freelance writers who challenged the settlement, the Second Circuit said that copyright law did not give them jurisdiction to approve a settlement that included damages for writers who did not register their copyrights. There's just one problem: no one made that argument, and none of the parties—not publishers, not writers, not even the objectors who appealed the settlement—agree with the ruling. So what motivated the objectors' appeal of the settlement? More importantly, in light of the ruling, what's next for all stakeholders, including libraries and information consumers?
LJ caught up with one of the objectors, California-based author and blogger Irvin Muchnick, and got a fascinating perspective on the long running—and still running—saga.
LJ: The Second Circuit's ruling surprised a lot of us who thought Tasini was all but over. As one of the objectors to the settlement, what's your impression of the ruling?
IM: There are ten objectors to the settlement and what follows are my personal views. I think the three-judge panel of the Second Circuit Court of Appeals issued an odd ruling. At least two of the three judges did; Judge Walker dissented. Odd, because neither the appellants (objectors) nor the appellees (defendants plus plaintiffs) raised the issue the court addressed in its ruling. In fact, we all argued against it when the Second Circuit asked for a briefing on it. Six circuits have ruled otherwise on the same question. The Supreme Court has also ruled otherwise on a very similar question. So, we hope and expect the ruling will be reversed and we'll be able to get back to arguing the merits of our objections.
I've seen the Second Circuit's decision described as "satisfying no one." How satisfied are you that the settlement you appealed was remanded and how unsatisfied are you with the Court's grounds for remand?
Some ill-informed observers described the objectors as "celebrating" what is actually a "Pyrrhic victory." Nonsense—we're appealing the Second Circuit's ruling, which both would prevent unregistered writers from getting relief even via a settlement and would prevent the defendants from getting the "complete peace" they have said they seek.
So what are the next steps?
Either a request for reconsideration by the three-judge panel or a motion for a rehearing "en banc," that is by all the judges on the Second Circuit. If those steps fail, then we'll appeal to the Supreme Court. A failure to reverse would mean not only that this settlement is rejected but also that no other settlement could include unregistered claims.
Why has the settlement remained a fractious issue among freelance writers? I've read that the objectors thought the size of the settlement was too small, correct?
This is not actually one of the grounds of our appeal. The size of the settlement fund was $10 million to $18 million with a cap of around $11.8 million for settlement claims after the deduction of plaintiffs' attorneys' fees and various administration costs, taken off the top. We do, however, think the settlement is low. We just don't have enough information, such as the amount of money the defendants make from databases using these freelance works, to suggest another amount, though we did point out to the district court that the damage study used to support the settlement had some big gaps in it. And, I am on record, as are others, saying the amount is a complete joke considering the scale of damages and what I think is compelling evidence of the defendants' willful infringement.
What would be a more justified settlement figure in your opinion?
Somewhere between $11.8 million and billions sounds about right. Remember, this is about decades of infringement, willful or not, of certainly tens or hundreds of thousands, possibly millions, of works, by every major and minor publisher and every electronic database operator in the land. Jonathan Tasini, the former president of the National Writers Union (NWU), said early on that the case was worth billions, but somewhere along the way he and the NWU, along with the Authors Guild and the American Society of Journalists and Authors, caved.
Librarians are concerned that, in the absence of a settlement, freelance writers will pull their works from databases. Is this a valid concern?
We can imagine all kinds of levels of chaos, but I'd like to make a point I made in the library and information press after the Tasini ruling, when publishers started turning their databases into "Swiss cheese" and blaming writers for the disaster. In fact, publishers have been blocking material by stealth for years, whenever a writer or a writers' organization confronted them, without negotiating solutions or even, and, this is key for your librarian audience, without disclosing what was going on, even as they continued to charge stiff fees for now non-comprehensive databases. In the end, does anyone really think freelance authors will be an impediment to the free flow of information? We just want our fair share when others, such as the defense group here, systematically profit from our work without permission.
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Muchnick: "Tasini" Settlement Appeal a Matter of Principle
Part II of the LJ Academic Newswire Newsmaker Interview with author Irvin Muchnick, one of ten writers who appealed the recently rejected settlement in the New York Times v. Tasini case.
LJ: Legally speaking your appeal is based largely on the treatment of writers with unregistered copyrights, the so-named group "C" writers in the settlement, correct?
IM: Yes, claims for works in the so-called C group, unregistered copyrights, were to be compensated as low as $5, if at all. The settlement fund is structured such that if it is overloaded with claims from the top two classes, the A's and B's, those with registered copyrights, the amount of money for claims in the C group can be reduced, even eliminated, which, by the way, we believe has happened. In a nutshell, we believe the C subclass should have had separate counsel because writers in the A and B groups have conflicting interests: their recoveries are negatively impacted by better results for the C's.
You also argued that the settlement was poorly publicized to writers who may have had claims, and whose copyrights then stood to be "defaulted?"
Yes, the class representatives took it upon themselves to grant a release and license in perpetuity, in any existing or future use, to the defense group for all works on which no response was received, by either the opt-out deadline or the claims deadline. This outrageously unprincipled provision turns copyright on its head. It is a thumb-to-the-nose to the hard-earned, unambiguous Tasini ruling by the Supreme Court in 2001.
As for the settlement being poorly publicized, bear in mind that very few of the rightsholders here belong to one or more of the three associational plaintiffs. If they heard about this asserted global settlement, most heard it from trade press articles or notice initiatives that were less than robust. So many, no doubt, "defaulted" and ceded rights because they didn't know about the settlement at all. Many didn't drill deep into the fine print after learning that for all the trouble of the claims paperwork they stood to get just $5. Then, of course, there is the issue of deceased writers and their heirs.
Under the current agreement, if you're a writer who did nothing, or didn't know to do anything, you've essentially granted permission?
If you didn't opt out of the settlement, you're in the settlement. Claim awards are structured to compensate 65 percent for past use and 35 percent for future use, so you could accept 65 percent of the settlement amount for past use and not grant the defense group the right to use a work in the future.
But for writers who did nothing at all by the claims deadline the result is a terrible perversion of copyright principle. In effect, the default means that someone who wrote something somewhere years ago, by dint of his lack of knowledge of the settlement or his refusal to read pages of legal documents, stands to give away rights in perpetuity for that work. This is outrageous. Should the settlement go through, I'm confident further litigation would open on that issue alone and this would all fall apart again. In many ways, the license issue is more serious than the problem of Class C works under this latest appellate decision, which is a high hurdle in itself. More than 99 percent of the universe of infringements is unregistered copyrights, which really complicates trying to get a global settlement.
In light of the Second Circuit ruling, the unregistered "C" class of writers could wind up with nothing at all. Are you concerned this might give publishers a wedge in future negotiations to reject all claims by unregistered writers?
It's true, the C writers who objected and all C writers would end up with nothing under the Second Circuit's ruling. But undoubtedly many would then proceed to register and sue in separate individual and class actions. So, I think the current ruling is terribly inconvenient and inefficient for all concerned, as well as for information consumers and for society. I don't see how publishers would have a wedge. They in fact face a potential wave of lawsuits even greater than they might have budgeted to handle earlier.
What might have been, or might still be a better plan of action for settling?
I have long advocated a "compulsory license" for reusing magazine and newspaper articles in new tech products, coupled with a system, loosely modeled on the music industry's ASCAP, to distribute a fair share of the revenues to copyright holders. This would serve public access as well as the diversity and vitality of American culture, while not denying big players the ability to exploit information and make reasonable returns on their investments. Unfortunately, publishers so far have chosen another way: all-rights contracts shoved down freelancers' throats, and the shady business of this settlement.
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| Success! NIH Provision Remains Intact
Librarians today are set to ring in the New Year with the nation's first ever public access mandate. Both the House of Representatives and Senate this week approved the revised Labor Health and Human Services (LHHS) appropriations bill which leaves intact a directive for the National Institutes of Health (NIH) requiring investigators to deposit their final papers in PubMed Central. Papers will then be available within a year after publication. All that's left is the president's signature, which is expected, and could come this week. The approval caps a several years-long fight spearheaded by SPARC, to make public access a requirement for NIH grantees.
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| Editors Note: The LJ Academic Newswire will be back on January 4, 2008!
This is the final edition of the LJ Academic Newswire for 2007. We thank you for your support in 2007 and look forward to a great 2008. We wish you and yours a happy holiday season!
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Best Sellers in Business and Economic, February 2007–present, as compiled by YBP Library Services
(13 digit ISBNs in brackets)
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Bottom Billion: Why the Poorest Countries Are Failing and What Can Be Done About It
Collier, Paul
Oxford University Press
2007. ISBN 0195311450 [9780195311457]. $28.00
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Good Capitalism, Bad Capitalism, and the Economics of Growth and Prosperity
Baumol, William J.
Yale University Press
2007. ISBN 0300109415 [9780300109412]. $30.00
-
Farewell to Alms: A Brief Economic History of the World
Clark, Greg
Princeton University Press
2007. ISBN 0691121354 [9780691121352]. $29.95
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Age of Turbulence: Adventures in a New World
Greenspan, Alan
Penguin Books
2007. ISBN 1594201315 [9781594201318]. $35.00
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Corporate Finance
Ross, Stephen A.
Irwin McGraw-Hill
2008. ISBN 0073337188 [9780073337180]. $178.25
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Everything Is Miscellaneous: The Power of the New Digital Disorder
Weinberger, David
Times Books
2007. ISBN 0805080430 [9780805080438]. $25.00
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Myth of the Rational Voter: Why Democracies Choose Bad Policies
Caplan, Bryan Douglas
Princeton University Press
2007. ISBN 0691129428 [9780691129426] $29.95
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Persistence of Poverty: Why the Economics of the Well-Off Can't Help the Poor
Karelis, Charles
Yale University Press
2007. ISBN 0300120907 [9780300120905]. $30.00
-
Shock Doctrine: The Rise of Disaster Capitalism
Klein, Naomi
Metropolitan Henry Holt
2007. ISBN 0805079831 [9780805079838]. $28.00
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Escape from Empire: The Developing World's Journey Through Heaven and Hell
Amsden, Alice H.
MIT Press
2007. ISBN 0262012340 [9780262012348]. $27.50
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Economic Naturalist: In Search of Explanations for Everyday Enigmas
Frank, Robert H.
Basic Books
2007. ISBN 046500217x [9780465002177]. $26.00
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How Countries Compete: Strategy, Structure, and Government in the Global Economy
Vietor, Richard H.K.
Harvard Business School Press
2007. ISBN 1422110354 [9781422110355]. $35.00
-
Why America Lost the War on Poverty—And How To Win It
Stricker, Frank
University of North Carolina Press
2007. ISBN 0807831115 [9780807831113]. $59.95
-
Nation of Counterfeiters: Capitalists, Con Men, and the Making of the United States
Mihm, Stephen
Harvard University Press
2007. ISBN 0674026578 [9780674026575]. $29.95
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Outsourcing Sovereignty: Why Privatization of Government Functions Threatens Democracy and What
We Can Do About It
Verkuil, Paul R.
Cambridge University Press
2007. ISBN 0521867045 [9780521867047]. $80.00
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Buy, Buy Baby: How Consumer Culture Manipulates Parents and Harms Young Minds
Thomas, Susan Gregory
Houghton Mifflin
2007. ISBN 0618463518 [9780618463510]. $25.00
-
Sex of Class: Women Transforming American Labor
Editor: Dorothy Sue Cobble
Cornell
2007. ISBN 0801443229 [9780801443220]. $65.00
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Brewing Justice: Fair Trade Coffee, Sustainability, and Survival
Jaffee, Daniel
University of California Press
2007. ISBN 0520249585 [9780520249585]. $55.00
-
Does Foreign Aid Really Work?
Riddell, Roger C.
Oxford University Press
2007. ISBN 0199295654 [9780199295654]. $35.00
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Tyranny of the Market: Why You Can't Always Get What You Want
Waldfogel, Joel
Harvard University Press
2007. ISBN 0674025814 [9780674025813]. $35.00
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