FREELANCE RIGHTS

Appellate Court Rejects 'Freelance' Settlement Parties' Appeals. Next: Back to District Court

2011-11-21T11:35:00.001-08:00

The Second Circuit Court of appeals last Thursday summarily rejected the plaintiffs' and defendants' petitions to rehear the court's decision rejecting the settlement of the freelance writers' copyright infringement class action against periodical publishers and electronic databases.

The upshot is that the objectors have prevailed and the case gets remanded to Judge George B. Daniels of U.S. District Court in New York.

Read the New Ebook Novel, ‘The Midget’s House,’ by Freelance Co-Objector Anita Bartholomew

2011-10-23T10:47:00.000-07:00

Anita Bartholomew, a key co-objector of the years-long Freelance settlement fight, has published her novel, The Midget’s House, on various ebook platforms. Yesterday I downloaded it on Amazon Kindle, and I just finished it. Great read: vividly and tautly written -- the kind of literary experience, perfectly suited to new electronic vehicles, we’ll all be enjoying a lot more in the coming years.

The Midget's House is available for $2.99 on both Amazon Kindle (http://amzn.to/raHwbN) and Barnes & Noble’s Nook (http://bit.ly/pqrX26). An iBook version is in the works.

Anita was, and remains, the most indefatigable objector and thorough researcher of the “license by default” issue. Congratulations on The Midget’s House!

'Authors Guild Is “Party of No” on Public Access to Literary Works' ... today at Beyond Chron

2011-09-19T04:55:00.000-07:00

The Authors Guild sure knows how to win friends and influence people. A week ago today it led an international cast of plaintiffs in yet another new lawsuit – against the HathiTrust, a consortium of major university libraries (including the University of California) over its project to establish a digital repository of their book collections. Taking to new extremes its proclivity to litigate, rather than organize or persuade, the AG now seeks to stop the mere act of scanning literary works even before they are commercialized.

This follows the collapse of the AG's effort in leading two other writers' organizations, the National Writers Union and the American Society of Journalists and Authors, down the primrose path in “Freelance” – the settlement in a class action on behalf of newspaper and magazine journalists against the periodicals and electronic database industries.

CONTINUED TODAY AT BEYOND CHRON, THE SAN FRANCISCO ONLINE NEWSPAPER:

http://www.beyondchron.org/articles/Authors_Guild_Is_Party_of_No_on_Public_Access_to_Literary_Works_9528.html

'Now That Freelance Settlement Must Be Renegotiated, Where Are Voices of Authors' Organizations?' (full text)

2011-09-09T11:55:00.000-07:00

[originally published 9/6/11 at http://www.beyondchron.org/articles/Now_that_Freelance_Settlement_Must_Be_Renegotiated_Where_are_Voices_of_Authors_Organizations__9488.html]

At intervals in these pages, I have been discussing the six-year-long fight by objectors to block a settlement between freelance journalists and the periodical and electronic database industries – a horrible sellout engineered by the Authors Guild, the American Society of Journalists and Authors, and the National Writers Union. On a technical detour to the U.S. Supreme Court, the case became known as Reed Elsevier v. Muchnick. Last month, we objectors won: the Second Circuit Court of Appeals rejected the settlement and ordered the case returned to district court, where holders of copyrighted works lacking Copyright Office registration paperwork (an estimated 99 percent of the class) would be represented by new and adequate counsel.

This article in Publishers Weekly told the story of the demise of “Freelance” – and how the Second Circuit ruling likely dooms the related Google Books settlement, as well. My PW guest column (available online only to subscribers at this point) explains where I think we all should go from here, and adds my longstanding advocacy of a congressionally sanctioned royalty system, including default “compulsory licenses” for public access.

Go ahead and disagree with my perspective if you must. But there is no credible case that the self-appointed class representatives have made any parallel attempt to persuade or engage the general public or to project any kind of vision of what this case is all about in the context of rapidly changing delivery systems for culture content. The position of the three “associational plaintiff” authors' organizations remains basically: “Writers shouldn't worry their pretty little heads over what we negotiated in secret mediation for half a decade, and without even filing a motion for injunctive relief. We know because our lawyers told us so.”

A perusal of the three writers' groups websites suggests that only the NWU has even reported the Second Circuit decision; none has offered follow-up comment or guidance. For years, sources inside the NWU (where I was assistant director, 1994-97) have been telling me they hated the settlement struck by the other two, but pleaded that their hands were tied by a provision prohibiting any statement that might undermine it prior to court approval. Well, what about now – after the appellate court has rejected the settlement?

Counsel for both the defendants and the plaintiffs last week filed ritualistic motions asking the Second Circuit to reconsider. I expect those motions to fail, but more important than my crystal-ball-gazing is what this development reveals about who's running the writers orgs' show.

Publishers' attorneys bill by the hour, and their job is to run out the clock on infringement statutes of limitations, real and perceived. Ruling-class vanity and power-tripping also dictate that this latest embarrassing court ruling and precedent (piled atop the 2001 Supreme Court decision in Tasini v. New York Times) be fought to the bitter end.

But the only thing going on with the plaintiffs' attorneys is a desperate attempt to rescue their multimillion-dollar contingency fees for a failed settlement. Tellingly, these lawyers are now arguing to the Second Circuit that even if the settlement were unfair, as the court has “mistakenly” held, then they should have been ordered to tweak it, in lieu of having the case sent back to the district court with new and adequate representation for the super-majority of the class who were treated unfairly. Kindly explain to me how the named plaintiffs, or anyone else awaiting settlement claims, are served by this posture.

It is as easy to call objectors names as it is to tell lawyer jokes. But now is the time to get back to the table, restructure this bad settlement, and pony up enough money to recover for freelance journalists at least peanuts, rather than peanut shells, stemming from decades of nose-thumbing and systematic corporate piracy.

Beyond Chron contributor Irvin Muchnick, author of CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling's Cocktail of Death, blogs at http://freelancerights.blogspot.com and http://concussioninc.net.

'Now That Freelance Settlement Must Be Renegotiated, Where Are Voices of Authors' Organizations?' ... today at Beyond Chron

2011-09-06T07:41:00.000-07:00

by Irvin Muchnick

At intervals in these pages, I have been discussing the six-year-long fight by objectors to block a settlement between freelance journalists and the periodical and electronic database industries – a horrible sellout engineered by the Authors Guild, the American Society of Journalists and Authors, and the National Writers Union. On a technical detour to the U.S. Supreme Court, the case became known as Reed Elsevier v. Muchnick. Last month, we objectors won: the Second Circuit Court of Appeals rejected the settlement and ordered the case returned to district court, where holders of copyrighted works lacking Copyright Office registration paperwork (an estimated 99 percent of the class) would be represented by new and adequate counsel.

This article in Publishers Weekly told the story of the demise of “Freelance” – and how the Second Circuit ruling likely dooms the related Google Books settlement, as well. My PW guest column (available online only to subscribers at this point) explains where I think we all should go from here, and adds my longstanding advocacy of a congressionally sanctioned royalty system, including default “compulsory licenses” for public access.

CONTINUED TODAY AT BEYOND CHRON, THE SAN FRANCISCO ONLINE NEWSPAPER:
http://www.beyondchron.org/articles/Now_that_Freelance_Settlement_Must_Be_Renegotiated_Where_are_Voices_of_Authors_Organizations__9488.html

'UNSETTLED Congressional action must pick up where class action has failed' ... Muchnick guest column next week at Publishers Weekly

2011-08-26T11:01:00.000-07:00

"The combined collapse of the 'Freelance' and Google settlements offers us an extraordinary opportunity to design the digital rights regime of the future."

C.E. Petit -- 'GBS Update: The Unsatisfactory Dissent in Muchnick IV'

2011-08-20T10:45:00.000-07:00

GBS Update:
The Unsatisfactory Dissent in Muchnick IV

C.E. Petit's "Scrivener's Error" blog

http://scrivenerserror.blogspot.com/2011/08/b819x.html

Publishers Weekly: 'Freelance' Decision Effectively Kills 'Google Books'

2011-08-18T11:47:00.000-07:00

As usual, Andrew Albanese of Publishers Weekly has the best coverage of yesterday's Second Circuit Court of Appeals decision. See "Second Circuit Rejects Freelance Settlement," http://www.publishersweekly.com/pw/by-topic/digital/copyright/article/48401-second-circuit-rejects-freelance-settlement-.html?utm_source=Publishers+Weekly%27s+PW+Daily&utm_campaign=845ba18c35-UA-15906914-1&utm_medium=email.

The court essentially found "big, general author classes are too broad to be certified, and cobbling together a suitable slate of subclasses in the Google case would be an arduous task," Albanese wrote. He quoted Google Books expert James Grimmelmann as saying that the upshot for the settlement of that case is that it "is now dead. There is no square one: this case is going back to litigation."

In reviewing the complicated history, PW offered this:

Notably, the root issues in the Google and Freelance settlements, including the license by default, are almost identical, and one of the reasons why lead objector Irv Muchnick has been vocal over the years in pushing for a more "industrywide" solution to the cases that includes some kind of royalty system for creators. "For all its problems, the Google Books deal at least includes a future royalty system, which I personally consider the key missing ingredient in Freelance," he wrote last year in an editorial. "That is why I wrote last September to Attorney General Eric Holder and made the decidedly unrigorous recommendation that his office knock some heads together and try to fuse Google Books and Freelance into a truly comprehensive negotiation of all interests: librarians and information consumers, as well as publishers and a few writers’ organizations claiming to represent everyone."

APPEALS COURT REJECTS 'FREELANCE' SETTLEMENT

2011-08-17T09:56:00.000-07:00

The Second Circuit Court of Appeals ruled today:http://www.blogger.com/img/blank.gif

“[T]he district court abused its discretion in certifying the class and approving the Settlement, because the named plaintiffs failed to adequately represent the interests of all class members.... We therefore vacate the district court’s order certifying the class and approving the Settlement, and remand for further proceedings consistent with this opinion.”

The full 52-page opinion is at http://muchnick.net/2ndcircuitruling.pdf.

Objectors' attorney Charles Chalmers:

The Court has issued a detailed decision, with thoughtful opinions by the majority and the dissent. My clients will need time to consider it, as the matter will now proceed to a new stage. My clients are of course gratified that the Court accepted their central adequacy of representation objection, which they tried repeatedly to make clear in the district court. They look forward to a revised resolution that insures protection for the 99% of freelance articles involved in the action.

Open Letter to Attorney General: Don’t Let Authors Guild Hijack 'Google Books' and 'Freelance' Copyright Settlements

2011-07-21T06:42:00.000-07:00

Legal scholar James Grimmelmann, a leading observer of the Google Books copyright class-action settlement, reports on his blog that the parties are in discussions to change it from an “opt out” to an “opt in” mechanism in an effort to address the reservations of Judge Denny Chin. As you know, Judge Chin – who last year was elevated to the Second Circuit Court of Appeals but is trying to bring “Google” to resolution from his old district court seat – already has rejected two incarnations of the settlement.

Elimination of Google’s opt-out basis would be a welcome development. It would also be another feature distinguishing it, in a positive way, from the somewhat similarly stalled settlement of a global copyright class action on behalf of freelance journalists, which was engineered by three authors’ organizations led by the Authors Guild. In interviewing me last year about the two cases’ likenesses and differences, Publishers Weekly called “my” case, referred to by the shorthand “Freelance,” “the central rights dispute of the digital age.”

In Google, your Department intervened constructively with “Statements of Interest,” and most observers agree that these weighed heavily in Judge Chin’s findings that that settlement to date is fatally flawed. At the time I took the procedurally unorthodox activist step of writing to you to praise DOJ’s intervention and to petition you to find another creative avenue for coordinating the Google and Freelance settlements. The argument for doing so includes the fact both settlements are being spearheaded by lawyer Michael Boni on behalf of the self-appointed class representative Authors Guild.

CONTINUED TODAY AY BEYOND CHRON, THE SAN FRANCISCO ONLINE NEWSPAPER:

http://www.beyondchron.org/articles/Open_Letter_to_Attorney_General_Don_t_Let_Authors_Guild_Hijack_Google_Books_and_Freelance_Copyright_Settlements_9363.html

'Demise of Google Newspaper Archive Shows Need for National Digital Library Policy' ... today at Beyond Chron

2011-05-25T06:53:00.000-07:00

Demise of Google Newspaper Archive Shows Need for National Digital Library Policy

by Irvin Muchnick

Google last week suspended its gargantuan project to scan and archive the historical content of all the world’s newspapers. The Boston Phoenix explained the development in detail.

A federal court has already thrown out the Google Books class-action settlement, which was negotiated by a publishers’ trade group and the sellout, private-spirited Authors Guild. Meanwhile, the world waits … and waits … and waits … forhttp://www.blogger.com/img/blank.gif the Second Circuit Court of Appeals to rule on objections by myself and others to an even worse sellout – really, a giveaway – by three writers’ organizations to just about the entire periodicals industry. (The case was known at the Supreme Court as Reed Elsevier v. Muchnick when the justices last year kicked it back to lower courts for adjudication of the merits.)

Google’s abandonment of its newspaper archive plan is one more illustration of why the new publishing landscape needs clear information superhighway rules of the road.

CONTINUED TODAY AT BEYOND CHRON, THE SAN FRANCISCO ONLINE NEWSPAPER:

http://www.beyondchron.org/articles/Demise_of_Google_Newspaper_Archive_Shows_Need_for_National_Digital_Library_Policy_9212.html

Waiting for the Second Circuit's 'Freelance' Decision

2011-05-10T15:17:00.000-07:00

We continue to wait for the Second Circuit Court of Appeals decision on the merits of the Freelance settlement objections.

I expect the ruling to be in our favor, but emphasize that I have no inside information to that effect. The recent decision on the Google Books case at the U.S. District Court level by Judge Denny Chin is not any kind of official precursor. Judge Chin now serves on the Second Circuit but he is not on the three-judge panel considering Freelance. The two cases do have certain striking similarities, and we've commented on them.

I've moderated a comment by an anonymous reader who listed names and phone numbers of people to call at the court, and suggested calling them directly to lobby for a decision sooner rather than later. I don't agree that that would be constructive. We don't know why the court hasn't ruled yet and we don't control the timetable of the judicial system.

Freelance Objectors Show Court Similarities to Google Books Flaws

2011-04-01T06:55:00.000-07:00

Below is the text of the appellants' letter submitting supplemental authority to the Second Circuit Court of Appeals. In the letter, Freelance objectors' attorney Charles Chalmers points the court to "highly pertinent" aspects of Judge Denny Chin's decision rejecting the Google Books settlement.

March 31, 2011

Re: IN RE: LITERARY WORKS IN ELECTRONIC DATABASES
COPYRIGHT LITIGATION 05-5943-cv
APPELLANTS’ LETTER SUBMITTING
SUPPLEMENTAL AUTHORITY - FRCP 28(j)

The Authors Guild v. Google Inc., 2011 U.S. Dist. LEXIS 29126 (S.D.N.Y. 2011) (“Google’). Several aspects are highly pertinent. The Google settlement involves licensing to Google of class members’ copyrighted works. As here, the license is non-exclusive. Google, at *8. The decision does not indicate whether the settlement allowed Google any right of sub-license. As here, the Google settlement granted licenses based on class members’ “silence.” Google, at *34-*37.

Judge Chin notes the Google license is contrary to the letter or spirit of the Copyright Act. Google, at *34-*36. 17 U.S.C. § 106(1), (3); 17 U.S.C. § 201(e). He noted that “’a copyright owner’s right to exclude others from using his property is fundamental and beyond dispute.’” Google, at *36 (quoting, Fox Film Corp. v. Doyal, 286 U.S. 123, 127 (1932). Judge Chin notes that, as is true here, many class members will not know their works are being exploited. Google, at *39. Judge Chin does not hold that the Google license is prohibited as a matter of law. Rather he describes his concerns with its effect on the rights of copyright owners as one basis for his decision not to find the proposed settlement fair, adequate and reasonable.

Judge Chin holds that because it contemplates future uses of class members’ copyrights that are different, and more extensive, than the acts of infringement giving rise to the action, the “release” fails to meet the “identical factual predicate” requirement for class action releases. Google, at 3 (citing, Wal-Mart Stores, Inc. v. Visa U.S.A. Inc., 396 F.3d 96, 107 (2d Cir.). For the same reason he finds that the “release” fails to meet the “general scope of the pleadings” requirement under Firefighters. Id.(citing Local No. 93, Int'l Ass'n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 525 (1986). Appellants make the same arguments, because the instant settlement also authorizes different and more extensive use of class member copyrights than is the subject of the action. Brief for Appellants-Objectors, p. 49; Appellants’ Letter Brief (6-7-10), p. 6-7; Appellants Reply Letter Brief (7-1-10), p. 5.

'Google Books Court Rejection Shows Copyright Litigation Is Exhausted' ... today at Beyond Chron

2011-03-29T10:06:00.001-07:00

by Irvin Muchnick

Time for Congress to Help Pave the Information Highway

In contrast with many fellow writers, I believe Google does much more good than bad. I also think the Mountain View Leviathan’s audacious book-scanning project holds great promise as a public utility and comprehensive literary marketplace. But last week’s decision by a federal judge to torpedo Version 2.0 of the Google Books settlement, negotiated by one publishers’ and one authors’ trade groups, http://www.blogger.com/img/blank.gifhas taken the work of private class action attorneys close to their richly deserved dead end.

The final cul-de-sac may be the long-anticipated ruling by the Second Circuit Court of Appeals in the related freelance journalists’ case against electronic database companies; which was known at the Supreme Court as Reed Elsevier v. Muchnick when the justices kicked it back down to the lower courts last year. (I am the lead objector to that particular hash, whipped together by the Authors Guild, the bad cook of the Google Books fiasco, in collaboration with sous chefs from the National Writers Union and the American Society of Journalists and Authors.)

CONTINUED TODAY AT BEYOND CHRON, THE SAN FRANCISCO ONLINE NEWSPAPER:
http://www.beyondchron.org/articles/Google_Books_Court_Rejection_Shows_Copyright_Litigation_Is_Exhausted_9031.html

Ahoy, Congress! Google Books Objector Pam Samuelson's Policy Agenda

2011-03-25T10:01:00.000-07:00

Pamela Samuelson and I have two things in common. And no, neither one is a MacArthur fellowship or broad expertise in the interplay of copyright and public policy -- those are all Samuelson's.

But Pam was the highest-profile objector to the Google Books settlement, which Judge Denny Chin torpedoed this week, and I lead a slate of objectors to the "Freelance" journalists' electronic database settlement, still awaiting a ruling at the Second Circuit Court of Appeals. We also have a passing acquaintance in the small hamlet of Berkeley, California. So when the Google news hit the other day, I sent Pam a note of congratulations.

Another thing we most assuredly do not share is access to The New York Times. The Newspaper of Record has twisted itself into journalism-not knots avoiding explanation of who is the "Muchnick" of last year's United States Supreme Court case, Reed Elsevier v. Muchnick. But Samuelson, quite appropriately, was sounded out by The Times on the Humpty Dumpty fallout of Google Books. See "Google's Next Stop May Be in Congress," http://www.nytimes.com/2011/03/24/business/media/24google.html?src=busln.

“The next thing to do is think about going to Congress and getting legislation that would make particularly orphan works available to the public,” Samuelson told The Times.

Yesterday I asked Pam whether the time was ripe to push Congress for a solution to more than the narrow "orphan works" problem. I pointed out that I and other objectors in the Freelance case believe that the ultimate solution is Congressionally-codified "compulsory licenses" and royalty systems, for articles as well as books (the distinctions between such categories are increasingly irrelevant in the new information culture).

"I am working on legislative alternatives to the GBS and an extended collective licensing regime is an interesting idea," Samuelson replied (and gave me permission to post).

'Google Books' Settlement Goes Down; 'Freelance' Decision Still Pending

2011-03-24T09:38:00.000-07:00

Almost everyone reading this already knows that on Tuesday the Google Books settlement was rejected by Judge Denny Chin.

James Grimmelmann has his usual good analysis up online. So does Andrew Albanese of Publishers Weekly.

There is no need for me to duplicate or attempt to top them here. The only quick point I'll make is that the copyright and class action worlds now will be watching our upcoming Freelance settlement resolution at the Second Circuit Court of Appeals with keen and undivided interest. That decision, if the three-judge panel chooses to frame it broadly, could well set standards for future actions.

It's obvious that much of the Chin ruling on Google Books -- especially the parts about inadequate representation of the class and the "opt out / opt in" dilemma -- could be applied to Freelance, more or less word-for-word.

At the level of policy, I continue to hope that all these essentially similar cases get fused and Congress gets to work on the compulsory-license-and-royalty regime that is the real and ultimate solution.

Dear Attorney General Holder: Please Coordinate the Pending ‘Google Books’ and ‘Freelance’ Cases

2011-03-18T10:01:00.000-07:00

Yesterday I used the occasion of The New York Times’ announced new pay service as a pretext to point out again that The Times, along with just about the entire newspaper and magazine industries, is systematically ripping off a generation of freelance journalists, including myself. The legal dispute over these practices is pending at the Second Circuit Court of Appeals after the Supreme Court last year, in a case called Reed Elsevier v. Muchnick, returned it to the lower courts for adjudication of its merits.

But I am not a whiner. There is a solution at hand: a fair and reasonable royalty system, loosely modeled after the music industry’s ASCAP, which will keep the spigot of digital information flowing while making sure independent creators can participate fairly in the resulting revenue streams – rather than allowing corporate publishers to illegally hoard intellectual property and charge users “all the traffic will bear.”

In a September 2009 letter to Attorney General Eric Holder, I argued that a key to this process would be government intervention to coordinate my “Freelance” case with the high-profile Google Books settlement. The Justice Department, supporting objectors to that settlement, had already filed a “Statement of Interest” in Google, which sent the parties back to the drawing board for a revised settlement proposal -- still under review by Judge Denny Chin (who, since then, has been promoted to the Second Circuit Court of Appeals himself).

In my view, the Google and Freelance cases involve identical root issues, and a coordinated resolution would be in the public interest.

Below, I reproduce again my letter to Attorney General Holder.

For further background, see my interview in the April 5, 2010, issue of Publishers Weekly: http://www.publishersweekly.com/article/455387-The_Objector.php. PW’s Andrew Albanese calls Freelance “the central rights battle of the digital age.”

***************

September 23, 2009

Attorney General Eric Holder
U.S. Department of Justice
950 Pennsylvania Ave. NW Washington, D.C. 20530

Dear Mr. Attorney General:

As the named respondent in the current Supreme Court case Reed Elsevier v. Muchnick (scheduled for oral argument on October 7), I address the expressed interests of the United States both in that case and in the Google Books settlement (hereinafter “Google”). My purpose is to advance the Government’s appreciation that the two cases are best discussed, prospectively and in the public interest, as a package.

In Reed Elsevier (previously known as In re Literary Works in Electronic Databases Copyright Litigation – hereinafter “Freelance”), the Solicitor General has joined both the settlement parties (the defendants plus the plaintiffs) and the objectors in asking the Court to overturn a sua sponte ruling by the Second Circuit Court of Appeals that the federal courts have no jurisdiction over settlements of copyright disputes including works that were not registered. (I am a respondent-objector.)

In Google, the Antitrust Division and the United States Attorney for the Southern District of New York filed a Statement of Interest with Judge Denny Chin outlining concerns not only in the area of antitrust, but also with the proposed settlement’s fidelity to Rule 23 (class action) and copyright law. The Government brief was the clear impetus for the parties’ subsequent motion to postpone the fairness hearing.

The Google settlement parties have indicated to the District Court their intention to use the period before a November 6 scheduling conference to revise the proposed settlement – based both on the Statement of Interest and, more broadly, on the Government playing a facilitating role in the drafting of revisions. It is in that context that the Freelance respondent-objectors seek your good offices in broadening the scope of the negotiations in both cases. Such a step, we believe, not only would serve judicial efficiency; it also would improve public policy in the evolving copyright architecture of new technologies.

Google and Freelance are at different procedural stages. The two cases, however, have striking and compelling similarities. Most fundamentally, both are copyright class actions involving claims by authors of the unauthorized reuse of their works by new digital publishing products. Beyond that, both cases have controversial settlement mechanisms turning on the deployment of “opt out,” rather than “opt in,” definitions for the granting of future rights to the defendants. This flaw in the Google settlement was particularly and aptly identified in the Government’s Statement of Interest.

Finally, the two cases share a named plaintiff, the Authors Guild, and its counsel.1 (1 In Freelance, the Authors Guild is a co-associational plaintiff. It is worth noting that in Google, the other two co-associational plaintiffs of Freelance – the National Writers Union and the American Society of Journalists and Authors – have filed objections essentially identical to those of the Freelance respondent-objectors over what we termed the settlement’s “license by default” provisions.)

The Government’s Statement of Interest in Google called attention to links between the two cases at p. 25, in the discussion of “Potential Foreclosure of Competition in Digital Distribution.” The brief cited the Order for Final Approval of Settlement and Final Judgment in Freelance, noting that it provided for “numerous companies beyond the named defendants [to be] allowed to obtain benefits of settlement.” In this way, the Government supported the argument that the Google settlement was defective on antitrust grounds.

Respectfully, the Freelance respondent-objectors believe that there are much stronger links between the two cases, as noted above. Further, the ability of a spectrum of publishers to obtain the benefits of settlement is far from the most pertinent set of facts in Freelance. While the antitrust principles propounded in your Google brief are well judged, the real connections between Google and Freelance revolve around Rule 23 and copyright. We are gratified that the Government’s Statement of Interest in Google went out of its way to offer cogent analysis in all three areas.

In Freelance, the settlement granted benefits to “numerous companies” simply as a consequence of the pattern of infringement and the range of entities exposed by it. Google has a single defendant. Freelance has several named defendants, and the universe of infringements encompasses the systematic practices of an entire industry
of periodical publishers and their electronic database licensees – collectively identified as the Defense Group. Thus, the sharing of the benefits of settlement was not a function of antitrust sensitivity; it was simply a way to describe the population of defendant-infringers (all of which, due to the unusual and complex nature of the settlement, also stood to “obtain benefits” therefrom).

Even so, the Freelance respondent-objectors are quick to point out that, with this passage, the Government has put its finger on the central solution tying together both cases: the need for comprehensive, industry-wide royalty systems. In their current forms, the Freelance settlement has the comprehensiveness but not the royalty system; Google has the royalty system but not the comprehensiveness.

During the public debate of Google, there has been a great deal of discussion of “compulsory licenses.” The Freelance respondent-objectors are not opposed to such arrangements per se; the main concern on our end is that they not be promulgated for the exclusive benefit of private litigation parties, and it is questionable whether that goal can be achieved by the courts rather than by Congress. In her recent testimony before the House Judiciary Committee, Register of Copyrights Marybeth Peters spoke eloquently on this point, and it has become the nexus of the successful resolution of both Google and Freelance.

The Supreme Court review of Freelance is on other grounds. But certainly one possible outcome of Reed Elsevier v. Muchnick – the one desired by the respondent-objectors – is a remand to the Second Circuit for the express purpose of reviewing the merits. Another possible outcome, of course, is that the Supreme Court will affirm the Second Circuit on the jurisdiction question under review, thus killing the settlement. We may know which path we are on by December or January. In the event the case does return to the Second Circuit, a possible decision there on the compulsory license issue would fundamentally affect Google.

For these reasons, the Freelance respondent-objectors request that the Government use its facilitating role in the renegotiation of the Google settlement, first and foremost, as a platform for broadening those negotiations. They should include the Freelance respondent-objectors, to be sure, but not only us; all stakeholders in the emerging copyright landscape should have their interests heard and incorporated. From a policy perspective, perhaps the most egregious lapse to date has been the disenfranchisement of librarians and information consumers in the rush to tailor litigation settlements. The resulting pastiche of proposed solutions is poorly integrated and has ill-served all parties.

We believe that the Government’s constructive intervention in Google marks a hopeful turning point in this process. Coordination of the Google and Freelance settlements would be the next step.

Thank you for your attention to this proposal.

Sincerely,
_s/_ Irvin Muchnick

cc:

Department of Justice
Christine A. Varney, Assistant Attorney General for Antitrust
William F. Cavanaugh, Deputy Assistant Attorney General, Antitrust Division
Preet Bharara, United States Attorney for the Southern District of New York
John D. Clopper, Assistant United States Attorney, Southern District of New York

All Google counsel of record

All Freelance counsel of record

Steal This Article: While The New York Times Sells My Copyrighted Work, Allow Me To Give It Away to You!

2011-03-17T15:31:00.000-07:00

The next generation of copyright scholars still awaits court rulings in two landmark cases. One is the Google Books class-action settlement, engineered by the Authors Guild and the Association of American Publishers; Judge Denny Chin is handling that one even though he has been elevated from U.S. District Court to the Second Circuit Court of Appeals.

Then there’s the global settlement on behalf of freelance journalists against the periodicals industry, which the Authors Guild concocted in collaboration with the National Writers Union and the American Society of Journalists and Authors. After a group of objectors, including your humble blogger, appealed what we consider the most abominable sellout in the history of sellouts, the Supreme Court gave the case the exquisite new handle Reed Elsevier v. Muchnick before sending it back to the Second Circuit for consideration of the merits of our objections.

Now this week The New York Times has announced that there is a new pay wall in front of articles from its online archive. These include a number of my own pieces, the secondary rights to which the Supreme Court, in its 2001 decision Tasini v. Times, confirmed belong to me, not The Times. The 7-to-2 decision by the justices was one of the historical fraction of cases in which Antonin Scalia and Ruth Bader Ginsburg both voted in the majority.

On December 17, 1989, I did the cover story for The New York Times Magazine, about football star Joe Montana. A few days later I impressed the hell out of my father-in-law when he answered a phone call for me from Joe, who was apologizing for having been baited into a quote in a San Francisco Chronicle article that mistakenly accused my Times Magazine story of intruding in his private life.

With the rejiggering of TimesSelect, The Times – which like many other publishers has thumbed its nose at the Supreme Court on the electronic rights issue for the past decade – is selling “Joe Montana: State of the Art,” rather than simply profiting from advertising hits on it. Because, you see, The Times represents the new access; whereas I and other independent writers, photographers, graphic artists, and videographers, who expect our fair share of the revenue in the new digital economy, represent old-fashioned copyright obtuseness.

But why pay for what you can get for free? Just send me an email at info@muchnick.net, and I’ll shoot back to you a lovely PDF file of the Joe Montana article, sans photos.

Or you can mail a check for $19.95 to me, at P.O. Box 9629, Berkeley, CA 94709, and I’ll send you both a free hard copy of the Montana piece and an autographed copy of my book CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death. A bargain at any price!

Ask Plaintiffs' Attorney Michael Boni (610-822-0201; mboni@bonizack.com) about the Mystery of the Missing $Millions

2011-01-24T23:35:00.000-08:00

That's Michael Boni

610-822-0201; mboni@bonizack.com

The Mystery of the Missing $Millions in Claims, Part 2

2011-01-24T23:28:00.000-08:00

More from guest blogger and co-objector Anita Bartholomew on the "Freelance" settlement parties' deceptive representations to the Second Circuit Court of Appeals on claims data.

To recap Part 1, in 2006, Michael Boni, the class action attorney purportedly representing freelance writers in the Freelance Class Action, had to rescind his statement to the court that freelance claims totaled just $10.76 million. He admitted the actual total could be much higher. The reason: the administrator had valued at least hundreds, and possibly thousands, of registered articles as if they were unregistered. Registered claims are worth, on average, from about 8.4 to 91 times the value of unregistered ones.

Then, in 2010, without any explanation, Boni told the appeals court that the claims total was $8.9 million -- $1.86 million lower, not higher, than the admittedly too-low $10.76 million figure he’d given in 2006. $Millions in claims simply vanished?

So much for the recap. On to Part 2.

In January 2011, Michael Boni wrote a new letter to the court saying that the administrator made yet another calculation error.

The settlement was amended in 2005 to bump up some former category B claims (registered but not timely), if infringed by two new Defendants in the class action, Amazon and Highbeam, into the higher paying A category. For details, see: http://www.authorsguild.org/advocacy/articles/classactionsettlementamendedtocoveramazoncomandhighbeam.html.

But, as Boni told the court earlier this month, the administrator had failed to value those original B claims as A claims. Boni now says that, as a result of correcting the error, the claims total has gone from $8.9 million to $11.56 million.

But wait: he never explained how it got DOWN to $8.9 million in 2010, when it should have gone UP by some unknown amount above the $10.76 million figure he gave the court in 2006.

If we were to add this new $2.66 million to the (too low) 2006 total of $10.76 million, the lowest possible total we get is $13.42 million. But we know that the total MUST be greater than $13.42 million, because (Boni told us) that the correct total would be greater than $10.76 million.

How much greater? He wouldn’t tell us. Neither would the defendants.

So, let’s look at the numbers we do have.

2011 reported error: The administrator wrongly classified about 2,300 category A claims (average value of A claims=$1,316.00) as if they were category B claims (average value of B claims=$156.00), which added $2.66 million to the claims total. The actual value of the affected claims was roughly 8.4 times greater than the administrator originally calculated.

2006 reported error: The administrator wrongly classified at least hundreds, and perhaps thousands, of category A and B claims (average value of A claims=$1,316.00; average value of B claims=$156.00) as if they were category C claims (average value of C claims=$14.50), which added $XX to the claims total. The actual value of the affected claims was roughly from 8.4 to 91 times greater than the administrator originally calculated.

What is the value of XX?

My best guess is north of a million dollars. Looking at the above, what’s yours?

And when you’re done best-guessing, please contact the purported attorney for Plaintiffs (this means he’s purportedly your attorney), Michael Boni. Ask him how a correction that INCREASED the value of hundreds or thousands of claims by as much as 91 times their originally calculated value REDUCED the claims value total by $1.86 million!

While you’re at it, ask him another obvious question: whose claims aren’t going to be paid? And why won’t they be paid?

I can’t help recalling how, from the beginning, attorneys for Plaintiffs and Defendants insisted in court that the claims totals could not possibly exceed $11.8 million. (Because anything above that would mean that unregistered claims wouldn’t be paid in full).

The only conclusion I can come to is that somebody did something to ensure that this false statement came true. What did that somebody do? I don’t know. Does it affect YOUR claims? I wish I could tell you, but again, I don’t know.

Michael Boni knows: 610-822-0201; mboni@bonizack.com

Maybe he’ll explain… or maybe, you’ll get the same bogus “explanation” that “someone” tried to peddle to us.

If you do ask Mr. Boni for an explanation, please be sure to come back here and post his response in the comments, so we can let you know whether it’s plausible. We need answers. Accurate answers. And we’ll only get them by holding to the fire the feet of those who have them (and are supposed to be on our side).

- Anita Bartholomew

The Mystery of the Missing $Millions in Claims, Part 1

2011-01-22T18:56:00.000-08:00

In this first of two parts, objector Anita Bartholomew reviews the history of the "Freelance" settlement parties' deceptive representations to the Second Circuit Court of Appeals on claims data.

In 2006, the plaintiffs' attorney in the Freelance Class Action, Michael Boni, erroneously told the court that the total claims in the case equaled $10.76 million.

This number, if it weren’t in error, would have been good news. If total claims amounts exceeded $11.8 million, all those who hadn’t registered their works (C claims) would get reduced payments for the infringement of their writings. (For background, see: http://freelancerights.blogspot.com/2006_06_01_archive.html.)

Boni apparently wanted to prove to the court that C claims’ payments wouldn’t be reduced. Most writers have only C, unregistered, claims. Any reduction would mean that most writers would get screwed. How screwed would depend on the actual totals.

But Boni had to rescind the claims total almost immediately, and admit that people who had unregistered articles – almost everyone in the class – might see their claims reduced.

What happened? The claims administrator was calculating registered articles as if they were unregistered. The $10.76 million figure was based on a preliminary calculation by the administrator that calculated at least hundreds, and perhaps more, registered (A and B category) articles at a fraction of their actual value. (According to figures given to the court, the average A claim is valued at about
$1,316.00; the average C claim is valued at about $14.50.)

Why the flawed calculations? Due to a mix-up: Boni had told at least one associational plaintiff's representative (and the representative told writers) that writers didn’t need to send in documents with their claims. So, writers didn’t.

Meanwhile, the claims administrator sent letters to all the writers who followed the flawed instructions, that it had ONLY counted as registered those claims sent WITH registration documents, even if writers included their registration numbers on their claims.

On one private online forum alone, numerous people mentioned getting such letters, concerning as many as 100 of a single writer’s registered works.

The $10.76 million figure was way low.

We were never told what the claims total was after writers with registered articles sent in their registration documentation, and the administrator re-calculated the totals, but knew the totals would be higher. Maybe $millions higher.

Fast-forward to June/July of last year. Defendants hadn't yet conducted an audit; challenges, when they're done, can theoretically bring down the total value of the claims. And remember that the total HAD to be FAR HIGHER than the artificially low $10.76 million. Perhaps high enough to require a significant reduction in the pay-outs to all those with unregistered articles.

Yet, the NEW claims amount total that Boni presented to the appeals court this summer, with no explanation, was $8.9 million.

That’s right: the claims total, which should have risen by some large but unknown number had, instead, mysteriously dropped by $1.86 million!

Where did all the claims go? Nobody is saying. Well, actually, one person did give what appears to be a bogus explanation for the disappearing $millions. We believe it’s bogus for two reasons: 1) the settlement doesn’t provide for the kind of action this person claims occurred; 2) the defense group’s key spokesperson claims no knowledge of the explanation given.

I’ll let you ponder what the above might mean, before I tell you about the latest strangeness with the claims totals, in Part 2 of THE MYSTERY OF THE MISSING $MILLIONS IN CLAIMS. Yes, there’s more. Much more. And it involves $millions more.

If you’re a writer with a claim in this case, this should concern you.

- Anita Bartholomew

Another Claims Data 'Correction' -- And a Motion by the Objectors to Investigate

2011-01-14T19:16:00.000-08:00

There has been a startling new development in the Freelance case at the Second Circuit Court of Appeals: yet another "correction" by the appellees of claims data numbers previously submitted in court records. The objectors' attorney, Charles Chalmers, has asked the court for leave to submit a brief on an issue he describes as "a frontal attack on the integrity of the appellate judicial process" and a record "of amazing negligence."

Our new court papers, viewable at http://muchnick.net/claims_data_motion.pdf, show the centrality of this issue to one of our core objections: the injustice of the settlement's "C Reduction" provision and the inadequacy of representation of the class because holders of registered and unregistered copyrights have conflicting interests.

Follow this blog for additional commentary.

Former NWU Executive Director Maria Pallante Named Acting Register of Copyrights

2010-12-20T08:42:00.001-08:00

The person who hired me as assistant director of the National Writers Union in 1994, Maria Pallante, has been named Acting Register of Copyrights at the Library of Congress. She replaces the retiring Marybeth Peters.

The news release is at http://www.loc.gov/today/pr/2010/10-272.html.

Congratulations, Maria!

Small But Important Update

2010-10-16T05:44:00.000-07:00

The objectors yesterday filed a "letter submitting supplemental authority" -- a new ruling in another court that we assert supports our position in this case. You can view the document at http://muchnick.net/supplemental.pdf.

Waiting at the Second Circuit Court of Appeals

2010-09-21T11:07:00.000-07:00

It's been a couple of months since I updated. There isn't much to update, but for the sake of continuity let's reiterate that we're waiting for a ruling from a three-judge panel of the Second Circuit Court of Appeals on the objectors' original appeal of the district court approval of the Freelance settlement. Consideration of these "merits" objections had been derailed by the circuit court's spontaneous decision that it was all moot because, as a matter of procedure, a settlement could not include the claims of non-registered, as well as registered, copyrighted works. The U.S. Supreme Court overturned that decision and sent the case back to the Second Circuit.

No one knows when we will find out what's next. I heard a guess of December. That is just a guess.

The court record reflects that there were settlement discussions involving the defendants, the plaintiffs, and the objectors. Those talks did not bear fruit.

New Briefs at the Second Circuit Court of Appeals

2010-07-11T17:53:00.000-07:00

I am catching up on the news.

A commenter identifying herself as "Linda" wrote:

Is there any word on how writers who didn't know about the case (and who weren't contacted by the lawyers) but who were clearly part of the class can end up with any remuneration?

I did, in 2007, contact the lawyers for Tasini and was told, despite the fact that I can document numerous stories published by Newsday (and printed off their website)that because I didn't see their ad, that I was out of luck - just too bad for me since I didn't respond by the time they said I should.

I've been informed of numerous class action suits and always been told I could opt out, but never that if I didn't respond I would be included but not remunerated.

Will this change as a result of the more recent hearings?

Answer: The status of "absent" class members has not changed as a result of the Supreme Court ruling in Reed Elsevier v. Muchnick. That decision simply remanded the Freelance case to the Second Circuit Court of Appeals for consideration of our objectors' arguments on the merits.

If the settlement stands in its current form, writers like Linda are indeed out of luck, as she puts it. The rights and wrongs of that are part of what is up for discussion at the Second Circuit.

The briefs of the appellants (the objectors) and the appellees (the defendants and the plaintiffs) have all been filed and can be viewed at the links below. At this time there is no further schedule on the Second Circuit's consideration of this appeal.

OBJECTORS' BRIEF (filed 6/7/10): http://muchnick.net/Objectors2dCir6-7-10.pdf

DEFENDANTS' RESPONSE BRIEF (filed 6/23/10): http://muchnick.net/Defendants2dCirResponse.pdf

PLAINTIFFS' RESPONSE BRIEF (filed 6/23/10): http://muchnick.net/Plaintiffs2dCirResponse.pdf

OBJECTORS' REPLY BRIEF (filed 7/1/10): http://muchnick.net/Objectors2dCirReply.pdf

Jim Leeson, 1930-2010

2010-05-07T07:29:00.000-07:00

I invite blog readers to take a break and read this beautiful appreciation of my lifelong friend and mentor, Jim Leeson, who died this week.

“A Man in Full: Jim Leeson, 1930-2010″

by E. Thomas Wood

http://www.nashvillescene.com/pitw/archives/2010/05/06/a-man-in-full-jim-leeson-1930-2010

Tied for the Most Important Post in the History of My Blogs

2010-04-29T04:56:00.001-07:00

My other son, Jacob Schneider, has co-authored a long and brilliant profile of Lee Bollinger, the president of Columbia University, for The Eye, the magazine of the Columbia Daily Spectator.

And his mother, his brother Nate, his sisters Mara and Lia, and I are very proud of Jake, too.

Read and enjoy:

Finding Bollinger

Eight years after his inauguration, he’s fundamentally changed—or restored—the presidency. This is how he did it.

By Jacob Schneider and Joy Resmovits

http://eye.columbiaspectator.com/node/586

Google Books Judge Chin Is Promoted to the Second Circuit

2010-04-24T06:26:00.000-07:00

The Senate has approved President Obama's elevation of U.S. District Court Judge Denny Chin, who is sitting on the proposed Google Books settlement, to the Second Circuit Court of Appeals. Publishers Weekly breaks down the ramifications at http://www.publishersweekly.com/article/457043-Judge_Presiding_Over_Google_Settlement_Moves_Up.php.

On the question of what happens to the Google deal, my hunch is that Judge Chin will dispose of that piece of business, for better or worse, before he moves on to the higher court. That is only a hunch. I have no inside information.

As for Chin's impact on Reed Elsevier v. Muchnick, I note that our case is being reviewed by the same three-judge panel that looked at it before issuing the jurisdiction ruling (which got overturned by the Supreme Court). After receiving the order from the justices reinstating the settlement and our objections to it, the Second Circuit has "stayed" any further action until May 7. Judge Chin will not even be in a position to recuse himself from Reed Elsevier v. Muchnick unless something requires consideration "en banc," by all the Second Circuit judges, rather than just by our three-judge panel.

Most Important Post in the History of My Blogs

2010-04-17T08:40:00.000-07:00

My son Nate has published an op-ed essay in the Sacramento Bee, and his mother, his brother, his sisters, and I are all very proud of him.

“Viewpoints: UC faculty could find a lesson in Jaime Escalante’s devotion”

http://www.sacbee.com/2010/04/17/2685113/uc-faculty-could-find-a-lesson.html#ixzz0lN8leQ2D

Muchnick Interviewed in Publishers Weekly

2010-04-05T06:51:00.000-07:00

Author and activist Irvin Muchnick is interviewed in the April 5 issue of the trade magazine Publishers Weekly.

Muchnick is author of CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death. He is also lead objector in a landmark global class-action copyright case, Reed Elsevier v. Muchnick, which the United States Supreme Court last month sent back to the lower courts for further review.

The Objector

PW talks with Irv Muchnick about the central rights battle of the digital age
by Andrew Richard Albanese — Publishers Weekly, 4/5/2010

http://www.publishersweekly.com/article/455387-The_Objector.php

As Others See It (IV -- Lyle Denniston, SCOTUSblog)

2010-03-10T20:15:00.000-08:00

"Second chance for copyright deal"

http://www.scotusblog.com/2010/03/second-chance-for-copyright-deal/

As Others See It (III -- C.E. Petit)

2010-03-10T09:47:00.000-08:00

"Breaking News: Muchnick Decided," March 2

http://scrivenerserror.blogspot.com/2010/03/a302x.html

"Supreme Court’s 'Muchnick' Ruling Keeps Dream of a Fair Royalty System Alive" (full text)

2010-03-05T16:16:00.000-08:00

[originally published at Beyond Chron, March 3, http://www.beyondchron.org/articles/Supreme_Court_s_i_Muchnick_i_Ruling_Keeps_Dream_of_a_Fair_Royalty_System_Alive_7869.html]

by Irvin Muchnick

As the Muchnick of the Supreme Court’s freelance journalists’ class-action copyright case Reed Elsevier v. Muchnick, I believe yesterday’s ruling is a very good thing – but not for the reason that will have been promoted all over the mainstream media by the time this essay is published. The New York Times, Reuters, and other corporate publishers can be counted on to do their usual linguistic and journalistic contortions to suggest that the justices, by this ruling, approve of the settlement of the lawsuit that was reached years ago between the periodicals industry and their electronic database partners, and a group of plaintiffs stage-managed by the Authors Guild, the National Writers Union (NWU), and the American Society of Journalists and Authors (ASJA).

The reason the Court’s action is good news is that it keeps alive the dream of a reasonable royalty system for re-use of copyrighted works in new media. This, in turn, would empower independent creators – who currently lie prostrate before big publishers – and enhance the diversity and vitality of American culture.

As soon as the settlement, known by the shorthand “Freelance,” was announced in 2005, I recognized it as a miserable sellout of writers’ rights and the public interest, concocted by the legally and financially overmatched alphabet-soup authors’ organizations. One way I knew this was that, as a former NWU assistant director myself, I had helped put together the very first piece of litigation in this field, Ryan v. CARL Corp., and gotten results.

I immediately organized a slate of objectors to Freelance. After the federal district court judge in New York, George Daniels, blew us off, we appealed to the Second Circuit Court of Appeals.

Then a three-judge appellate panel there did something odd. In what is known as a sua sponte ruling, the Second Circuit threw out the settlement – but on technical grounds that would have been disastrous for the future ability of anyone to seek redress for blatant wide-scale piracy. The judges held that the federal courts had no jurisdiction to consider settlements of lawsuits involving works whose copyrights were not registered with the U.S. Copyright Office.

In Freelance, unregistereds made up an estimated 99 percent of the infringement universe. Indeed, the inclusion of unregistereds in Freelance, along with registered, was very nearly the only thing on which we objectors agreed with the settlement parties.

So the publishers and the writers’ organizations appealed to the Supreme Court. At the invitation of the justices (who showed the additional impeccable taste of renaming the case Reed Elsevier v. Muchnick), the objectors weighed in too.

What yesterday’s decision means is that we all go back to the Second Circuit to argue what the objectors have always wanted to argue: the settlement’s merits or lack thereof.

Meanwhile, the better-publicized Google Books settlement is similarly stalled at the district court level. When President Obama’s Justice Department intervened with a withering “statement of interest,” buoying that settlement’s objectors, the parties went back to the drawing board. But most of the people (including Obama Justice) who were dissatisfied with Version 1.0 say the resulting Version 2.0 has the same fundamental flaws.

In an amusing twist of bedfellows, the long list of Google Books objectors from across the globe include the Authors Guild’s two partners in Freelance. What’s more, NWU and ASJA are making some of the same arguments that the objectors in Freelance had developed earlier against all three of them!

Yet for all its problems, the Google Books deal (to which I am “opting out” rather than objecting) at least includes a future royalty system, which I personally consider the key missing ingredient in Freelance. That is why I wrote last September to Attorney General Eric Holder and made the decidedly unrigorous recommendation that his office knock some heads together and try to fuse Google Books and Freelance into a truly comprehensive negotiation of all interests: librarians and information consumers, as well as publishers and a few writers’ organizations claiming to represent everyone. My letter can be viewed at http://muchnick.net/lettertodoj.pdf.

On January 27 of this year, Pam Samuelson – the Cal legal scholar, new technology activist, and MacArthur Fellow, and one of the leading objectors to the Google Books settlement – asked Judge Denny Chin to wait for the Supreme Court’s decision in Reed Elsevier v. Muchnick before deciding Google 2.0. “If the Supreme Court rules that owners of copyrights in unregistered works are eligible to participate in copyright class action settlements, the court should direct the parties to renegotiate the agreement,” Samuelson’s brief argued.

The first part is exactly what the justices have now done. Let’s see if Judge Chin takes up Samuelson on the second part.

After yesterday’s opinion was released, Freelance objectors’ attorney Charles Chalmers and I reflected that it came almost exactly five years after I first started bugging him about getting involved on our behalf. Since then, Chalmers has put in more hundreds of hours of unpaid work, and expended more thousands of dollars out of pocket, than he probably cares to tote up. I joked to Chuck, “We live to fight another day – whether you like it or not.”

(Along with Chalmers, the objectors’ sincere thanks go to the Stanford Supreme Court Litigation Clinic, directed by Pamela Karlan and Jeffrey Fisher, for their invaluable pro bono brain power and support.)

Neither Rome nor ASCAP – the musical licensing system launched after the advent of records and radio – was built in a day. It will be the same for a fair and equitable royalty system in the digital age for unaffiliated writers, photographers, videographers, and graphic artists. Whether all of them realize it or not, they should be celebrating.

Irvin Muchnick will be in Connecticut later this month to promote his book CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death, at Borders stores in Stamford (March 25) and Farmington (March 27). He blogs about freelancer issues at http://freelancerights.blogspot.com.

As Others See It (II - James Grimmelman)

2010-03-05T11:08:00.000-08:00

From perhaps the leading public explainer of the Google Books settlement:

GBS: Reed-Elsevier v. Muchnick Decided
http://laboratorium.net/archive/2010/03/02/gbs_reed-elsevier_v_muchnick_decided

As Others See It (I - Publishers Weekly)

2010-03-04T10:24:00.000-08:00

Andrew Albanese of Publishers Weekly is his characteristic breath of fresh air in coverage of the Supreme Court ruling in Reed Elsevier v. Muchnick. See "Tasini Case Revived by Supreme Court," http://www.publishersweekly.com/article/451840-Tasini_Case_Revived_By_Supreme_Court.php?nid=2286&source=link&rid=17015961.

After reporting the ruling and its background, the piece observes that "Among the objectors' claims are some familiar refrains from the recent Google settlement." It closes with this old quote from your humble blogger:

"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 [authors'] rights in the new information age. And we'll only have one shot at it."

Post-Supreme Court Notes

2010-03-04T07:12:00.000-08:00

I’ve taken my little victory lap for Reed Elsevier v. Muchnick – one shared, in terms of the Supreme Court decision itself, with the settlement parties.

Now it’s back to the task of making lemonade out of the lemons that were plucked off the tree by the periodical and electronic database industries, in cahoots with three authors’ organizations. Will they negotiate with the objectors or do we go back to slugging out the merits of the settlement before the Second Circuit?

The landscape has changed dramatically since the three-judge panel there misguidedly overturned the settlement on jurisdictional grounds. There’s Google Books, of course. And there’s whatever effect the nuances of the Supreme Court’s decision this week will have on the upcoming merits phase.

One thing I so far have neglected to report on this blog is that the Court was unanimous: 8-0. (Justice Sotomayor, the 1997 district court judge in Tasini v. New York Times, whose decision the Supreme Court reversed in 2001, had recused herself.) Reed Elsevier lawyer Charles Sims called the unanimity “sweet.”

I call it very, very interesting. Three justices -- Ginsburg, Breyer, and Stevens -- concurred with the main opinion, written by Justice Thomas, but produced a separate one that emphasized different aspects of the law undergirding the decision. It’s way too early in the morning for me to try to explain that in any more depth.

However, I am intrigued by the implications of the Ginsburg-Breyer-Stevens troika. Ginsburg had written the Tasini opinion, which was a 7-2 vote – and Breyer and Stevens were those two dissenters.

Back in October, after attending the oral argument in Reed Elsevier v. Muchnick, I wrote that the perceptive questions from Breyer and Stevens were leading me to the conclusion that they had dissented in Tasini not out of a disrespect for independent creators’ rights, but because they had a different and more pragmatic vision of how those rights should be applied. At our hearing, Stevens – ornery but in a cool way – showed impatience for the hairsplitting between calling the copyright registration requirement either “mandatory” or “jurisdictional.” And Breyer placed so much importance on the value of the fairness of the settlement (which was only indirectly related to the narrow and technical question before the Court) that he turned one of his questions into a long riff about a hypothetical royalty system. Music to my ears, obviously.

That Stevens and Breyer wound up joining Ginsburg, the architect of Tasini, in a nuanced affirmation of a unanimous opinion in an offshoot case is more than sweet. It may help pave the road ahead.

Freelance Rights Flashback: Muchnick's 9/23/09 Letter to Attorney General Holder

2010-03-03T10:38:00.001-08:00

In the wake of yesterday's Supreme Court ruling in Reed Elsevier v. Muchnick, there is not a heck of a lot I would change in my September 23, 2009, letter to Attorney General Eric Holder. Full text below.

September 23, 2009

Attorney General Eric Holder
U.S. Department of Justice
950 Pennsylvania Ave. NW Washington, D.C. 20530

Dear Mr. Attorney General:

As the named respondent in the current Supreme Court case Reed Elsevier v. Muchnick (scheduled for oral argument on October 7), I address the expressed interests of the United States both in that case and in the Google Books settlement (hereinafter “Google”). My purpose is to advance the Government’s appreciation that the two cases are best discussed, prospectively and in the public interest, as a package.

In Reed Elsevier (previously known as In re Literary Works in Electronic Databases Copyright Litigation – hereinafter “Freelance”), the Solicitor General has joined both the settlement parties (the defendants plus the plaintiffs) and the objectors in asking the Court to overturn a sua sponte ruling by the Second Circuit Court of Appeals that the federal courts have no jurisdiction over settlements of copyright disputes including works that were not registered. (I am a respondent-objector.)

In Google, the Antitrust Division and the United States Attorney for the Southern District of New York filed a Statement of Interest with Judge Denny Chin outlining concerns not only in the area of antitrust, but also with the proposed settlement’s fidelity to Rule 23 (class action) and copyright law. The Government brief was the clear impetus for the parties’ subsequent motion to postpone the fairness hearing.

The Google settlement parties have indicated to the District Court their intention to use the period before a November 6 scheduling conference to revise the proposed settlement – based both on the Statement of Interest and, more broadly, on the Government playing a facilitating role in the drafting of revisions. It is in that context that the Freelance respondent-objectors seek your good offices in broadening the scope of the negotiations in both cases. Such a step, we believe, not only would serve judicial efficiency; it also would improve public policy in the evolving copyright architecture of new technologies.

Google and Freelance are at different procedural stages. The two cases, however, have striking and compelling similarities. Most fundamentally, both are copyright class actions involving claims by authors of the unauthorized reuse of their works by new digital publishing products. Beyond that, both cases have controversial settlement mechanisms turning on the deployment of “opt out,” rather than “opt in,” definitions for the granting of future rights to the defendants. This flaw in the Google settlement was particularly and aptly identified in the Government’s Statement of Interest.

Finally, the two cases share a named plaintiff, the Authors Guild, and its counsel.1 (1 In Freelance, the Authors Guild is a co-associational plaintiff. It is worth noting that in Google, the other two co-associational plaintiffs of Freelance – the National Writers Union and the American Society of Journalists and Authors – have filed objections essentially identical to those of the Freelance respondent-objectors over what we termed the settlement’s “license by default” provisions.)

The Government’s Statement of Interest in Google called attention to links between the two cases at p. 25, in the discussion of “Potential Foreclosure of Competition in Digital Distribution.” The brief cited the Order for Final Approval of Settlement and Final Judgment in Freelance, noting that it provided for “numerous companies beyond the named defendants [to be] allowed to obtain benefits of settlement.” In this way, the Government supported the argument that the Google settlement was defective on antitrust grounds.

Respectfully, the Freelance respondent-objectors believe that there are much stronger links between the two cases, as noted above. Further, the ability of a spectrum of publishers to obtain the benefits of settlement is far from the most pertinent set of facts in Freelance. While the antitrust principles propounded in your Google brief are well judged, the real connections between Google and Freelance revolve around Rule 23 and copyright. We are gratified that the Government’s Statement of Interest in Google went out of its way to offer cogent analysis in all three areas.

In Freelance, the settlement granted benefits to “numerous companies” simply as a consequence of the pattern of infringement and the range of entities exposed by it. Google has a single defendant. Freelance has several named defendants, and the universe of infringements encompasses the systematic practices of an entire industry
of periodical publishers and their electronic database licensees – collectively identified as the Defense Group. Thus, the sharing of the benefits of settlement was not a function of antitrust sensitivity; it was simply a way to describe the population of defendant-infringers (all of which, due to the unusual and complex nature of the settlement, also stood to “obtain benefits” therefrom).

Even so, the Freelance respondent-objectors are quick to point out that, with this passage, the Government has put its finger on the central solution tying together both cases: the need for comprehensive, industry-wide royalty systems. In their current forms, the Freelance settlement has the comprehensiveness but not the royalty system; Google has the royalty system but not the comprehensiveness.

During the public debate of Google, there has been a great deal of discussion of “compulsory licenses.” The Freelance respondent-objectors are not opposed to such arrangements per se; the main concern on our end is that they not be promulgated for the exclusive benefit of private litigation parties, and it is questionable whether that goal can be achieved by the courts rather than by Congress. In her recent testimony before the House Judiciary Committee, Register of Copyrights Marybeth Peters spoke eloquently on this point, and it has become the nexus of the successful resolution of both Google and Freelance.

The Supreme Court review of Freelance is on other grounds. But certainly one possible outcome of Reed Elsevier v. Muchnick – the one desired by the respondent-objectors – is a remand to the Second Circuit for the express purpose of reviewing the merits. Another possible outcome, of course, is that the Supreme Court will affirm the Second Circuit on the jurisdiction question under review, thus killing the settlement. We may know which path we are on by December or January. In the event the case does return to the Second Circuit, a possible decision there on the compulsory license issue would fundamentally affect Google.

For these reasons, the Freelance respondent-objectors request that the Government use its facilitating role in the renegotiation of the Google settlement, first and foremost, as a platform for broadening those negotiations. They should include the Freelance respondent-objectors, to be sure, but not only us; all stakeholders in the emerging copyright landscape should have their interests heard and incorporated. From a policy perspective, perhaps the most egregious lapse to date has been the disenfranchisement of librarians and information consumers in the rush to tailor litigation settlements. The resulting pastiche of proposed solutions is poorly integrated and has ill-served all parties.

We believe that the Government’s constructive intervention in Google marks a hopeful turning point in this process. Coordination of the Google and Freelance settlements would be the next step.

Thank you for your attention to this proposal.

Sincerely,
_s/_ Irvin Muchnick

cc:

Department of Justice
Christine A. Varney, Assistant Attorney General for Antitrust
William F. Cavanaugh, Deputy Assistant Attorney General, Antitrust Division
Preet Bharara, United States Attorney for the Southern District of New York
John D. Clopper, Assistant United States Attorney, Southern District of New York

All Google counsel of record

All Freelance counsel of record

Supreme Court's 'Muchnick' Ruling Keeps Dream of a Fair Royalty System Alive

2010-03-03T05:25:00.000-08:00

Supreme Court’s Muchnick Ruling Keeps Dream of a Fair Royalty System Alive
by Irvin Muchnick

Beyond Chron, March 3, 2010
http://www.beyondchron.org/articles/Supreme_Court_s_i_Muchnick_i_Ruling_Keeps_Dream_of_a_Fair_Royalty_System_Alive_7869.html

Preview of Muchnick Piece Tomorrow at Beyond Chron

2010-03-02T16:12:00.000-08:00

Supreme Court’s “Muchnick” Ruling Keeps Dream of a Fair Royalty System Alive

by Irvin Muchnick

As the Muchnick of the Supreme Court’s freelance journalists’ class-action copyright case Reed Elsevier v. Muchnick, I believe yesterday’s ruling is a very good thing – but not for the reason that will have been promoted all over the mainstream media by the time this essay is published.

The New York Times, Reuters news service, and other corporate publishers can be counted on to do their usual linguistic and journalistic contortions to suggest that the justices, by this ruling, approve of the settlement of the lawsuit that was reached years ago between the periodicals industry and their electronic database partners, and a group of plaintiffs stage-managed by the Authors Guild, the National Writers Union (NWU), and the American Society of Journalists and Authors (ASJA).

The reason the Court’s action is good news is that it keeps alive the dream of a reasonable royalty system for reuse of copyrighted works in new media. This, in turn, would empower independent creators – who currently lie prostrate before big publishers – and enhance the diversity and vitality of American culture.

CONTINUED TOMORROW MORNING
ON THE FRONT PAGE AT BEYOND CHRON,
THE SAN FRANCISCO ONLINE NEWSPAPER
(http://beyondchron.org)

SUPREME COURT KEEPS FREELANCE CASE ALIVE

2010-03-02T07:42:00.000-08:00

The United States Supreme Court has reversed the Second Circuit Court of Appeals in Reed Elsevier v. Muchnick, ruling that holders of unregistered copyrights can participate in settlements of infringement cases.

The decision means that the case, commonly called "Freelance," will return to the lower courts for further adjudication. The Second Circuit had invalidated the settlement on jurisdictional grounds.

Freelance involves the consolidated settlement of several class-action cases over the unauthorized and uncompensated electronic reuse of freelance writers' previously published articles. The cases stemmed, in turn, from the 2001 Supreme Court opinion in Tasini v. New York Times.

The Reed Elsevier v. Muchnick opinion can be viewed at http://www.supremecourtus.gov/opinions/09pdf/08-103.pdf.

The objectors to the settlement are gratified by the jurisdiction ruling. We now look forward to the opportunity to argue the merits of our objections before the Second Circuit.

Follow this blog for further details and comment soon.

Justice Department Doesn't Like Google Books Settlement 2.0

2010-02-04T20:56:00.000-08:00

This just in from The New York Times (http://www.nytimes.com/2010/02/05/technology/internet/05publish.html):

"In another blow to Google’s plan to create a giant digital library and bookstore, the Justice Department on Thursday said that a class-action settlement between the company and groups representing authors and publishers had significant legal problems, even after recent revisions."

I have speculated that the Obama Justice Department, after sidetracking the original Google Books settlement with a devastating "Statement of Interest," would be the de facto decider of the fate of Settlement 2.0.

If I was right about that, this settlement is dead.

Ode to Norah Jones' 'Chasing Pirates'

2010-01-31T07:14:00.000-08:00

The advantage of blogging is that you can publish whatever you want, whenever you want, on-topic or not.

Sometimes a guy just has to get away from the Connecticut Senate race, death in pro wrestling, and the copyright wars. To do that these days, I kick back and play Norah Jones’ “Chasing Pirates.” For my money, it is the most perfectly crafted pop single since “Conceived,” the minor 2006 hit by Beth Orton.

(And yes, I have a thing for felicitous female voices. Shoot me.)

“Conceived” had sent me diving into Orton’s full oeuvre, which turned out not to measure up to that song’s lightning-in-a-bottle incandescence. Jones, of course, is a different story, having burst on the scene with instantly recognizable and transcendent crossover talent that made her the It Girl of 2002. I don’t apologize for being slow to the party. That is my way. I discovered the Beatles in 1972.

Except for knowing what I like, I know squat about music. So before putting fingertip to keyboard, I rehearsed this essay with one of my sons, a trumpeter who played and occasionally soloed with the Berkeley High Jazz Ensemble, and whose musical enthusiasms are both catholic and tasteful. Here’s the best I can come up with.

First, I do not recommend that you run out and view the music video of “Chasing Pirates” on YouTube. The video is a plausible exploitation of Jones’ multiracial beauty and waifish mannerisms, but the viewing experience has the unfortunate effect of reducing the song’s ethereal imagery to prosaic narrative. Instead, I suggest consuming the aural core without sensory filters. Don’t even download the audio track; just wait for it to land in its regular rotation on a radio station such as San Francisco’s KFOG.

What you’ll immediately notice about “Chasing Pirates” is that it’s built around a singular riff and bass line. That’s an old device of pop-hook manipulation. Bo Diddley did it. So did Lou Reed’s “Walk on the Wild Side” and Dylan’s “Tangled Up in Blue.” And, of course, the entire genre of funk beats us over the head with it. Now Norah Jones does it, but in a tantalizingly small package, and with the breathy and understated tones that have led some critics to deride her as “Snorah Jones.”

I have not been a partisan in that debate; I was not a fan, and knew Jones simply as a gifted musician with uneven material. But “Chasing Pirates” shows why her detractors have it wrong. Jones has the voice of an angel – obviously – but her stylings aren’t just seductive, they’re searching. Like jazz vocalists going all the way back to Louis Armstrong, she knows how to coo, illegally and irresistibly, off the beat.

Contrast Jones in “Chasing Pirates” with Brandi Carlile’s “Dreams,” another current hit with spare architecture. Jones is a singer of preternatural depth. Carlile is a pretty good warbler – a modern-day Linda Ronstadt with a great instrument but a mediocre grasp of drama and dynamics. Dreams don’t usually scream, and Carlile (like Ronstadt mangling Roy Orbison) does too much screaming.

The last thing Jones’ pipes and phrasing facilitate is lyricism. I don’t know whether Jones writes her own stuff, and I have enough cynical background in the culture industry to realize that it’s a racket and the names on the credits don’t always tell the truth. I’m not going to bother looking it up because it doesn’t matter. Whoever composed the melody and words of “Chasing Pirates,” Jones’ performance owns them.

Check out the rhyme scheme of the chorus. Abandoning the cheap trick of rhyming at the end of the line – or the somewhat heftier technique of a false rhyme – Jones buries hers in the middle of the line “My mind’s racing / from chasing pirates.” The juxtaposition of “racing” and “chasing” is almost unbearable, allowing Norah to draw out “pirates” across the rest of the measure, and a little differently each time.

Enough exegesis. For the next two minutes and forty-two seconds, just shut up, listen, and weep.

Pam Samuelson to Google Judge: Wait for Supreme Court Ruling in 'Reed Elsevier v. Muchnick'

2010-01-29T13:28:00.000-08:00

In a 23-page letter brief submitted to Judge Denny Chin on January 27, Pam Samuelson, the Richard M. Sherman Distinguished Professor of Law at the University of California in Berkeley, sets forth ten core objections to the Google Books settlement.

No. 3 is what Samuelson argues is the need to wait for the Supreme Court's ruling in Reed Elsevier v. Muchnick. Objecting to Google's "seemingly narrowed definition of 'inserts,' and more generally to the narrow definition of 'book,'" she adds: "If the Supreme Court rules that owners of copyrights in unregistered works are eligible to participate in copyright class action settlements, the court should direct the parties to renegotiate the agreement ..."

See these points at the bottom of page 14 of Samuelson's letter, and the background discussion at pages 9-11. The document can be viewed at http://thepublicindex.org/docs/amended_settlement/Samuelson_supplemental_objection.pdf.

Your humble blogger retracts very catty thing I've ever said about the learned and esteemed and wise Professor Samuelson. And the next time a mob of angry wrestling fans forces me to duck inside the Cheeseboard in North Berkeley, the scones are on me.

(Thanks to Edward Hasbrouck for the pointer.)

Muchnick on Lessig on Google

2010-01-27T10:50:00.001-08:00

Lawrence Lessig has written a very important new essay for The New Republic. I urge everyone to read “For the Love of Culture: Google, Copyright, and our future,” http://www.tnr.com/article/the-love-culture.

I’m going to say just a few things about this piece, and not nearly enough to satisfy hard-line critics of the Google Books settlement. The main things on which I want to comment are the levels of engagement here of an obviously erudite and thoughtful voice on newfangled copyright issues. I still think Lessig gives short shrift to my own case now at the U.S. Supreme Court, Reed Elsevier v. Muchnick, and how all these pieces fit together.

Previously, I have written irksomely about a similarly disproportionately small level of engagement by another esteemed copyright voice, Pam Samuelson – who, unlike Lessig, is indeed one of the hard-line Google critics. See “Confidential to Pam Samuelson: Please Add a Teaspoon of Vision to Your Abstract Critique of Google Books,” November 19, 2009, http://freelancerights.blogspot.com/2009/11/confidential-to-pam-samuelson-please.html.

In the more distant past, I have written even more irksomely about Lessig, a media go-to guy whose aloofness toward our newspaper and magazine freelancers’ copyright case had struck me as more politically canny than intellectually consistent. See “Lessig’s Legacy: Only Halfway There,” February 1, 2008, http://freelancerights.blogspot.com/2008/02/lessigs-legacy-only-halfway-there.html.

Today I am happy to say that Lessig, with the great length afforded him by The New Republic, moved some distance toward remedying what I’ve seen as a cop-out in my limited correspondence with him. (He had pleaded refusal to comment on "Freelance" because he didn’t want to jeopardize his focus by commenting on “a technical issue of law that is not anything I know about.” Huh? I don’t think the esteemed appellate court judge and author, Richard Posner, accepted answers like that when Lessig clerked for him.)

Previously Lessig had written extensively about the woes of documentary film makers, who live off snippets and are chilled in the current ultra-litigious climate by copyright holders demanding payment for “every bit and byte.” Lessig has never gone as far as perhaps the most prominent documentarian in the land, PBS gasbag Ken Burns, who to his everlasting discredit actually filed a brief supporting publishers and opposing authors in Tasini v. New York Times (2001) – the predecessor and underlying case of Reed Elsevier v. Muchnick.

In his new essay, Lessig leads off with the documentary problem, but moves on, with felicity and common sense, to connect it to the Google case. And then on to where I think the article gets most interesting: a rumination on, and vision for, the entire new landscape and how the intricate three-way dance of creators, publishers, and the public interest needs to be choreographed.

Lessig evidently still can’t bring himself to utter the words “Freelance” or Reed Elsevier v. Muchnick – focus focus, you know! – but he comes about as close as you can get in passages like these:

[T]he government should establish the minimal protocols for these registries,... This maintenance requirement should apply to books alone – for now. There are different, and enormously complicated, problems with other forms of creative work, photographs in particular, especially after a generation of law telling creators that they need do nothing to secure complete protection for their work. But the objective should be to include these other works as soon as it is feasible, so that this first and most basic obligation of a property system could be met: that it tell the world who owns what.

...

The thicket of legal obligations that buries film, music, and every other form of creative work (save books) should be re-made using a rule that gives current owners the ability to secure value for those rights, but through a clearinghouse that would shift us away from a world of endless negotiation to a world where simple property rules function simply.

I congratulate Lessig for his tiptoe in the direction of true comprehensiveness. I am not so partisan about Freelance (let alone Google, where I recommend opt-out) not to appreciate that he thinks and writes with a balance that must be taken very seriously and respectfully as the debate proceeds.

Hello From Limbo Land

2010-01-22T06:44:00.000-08:00

This blog has been silent for a while and I want to check in with what passes for an update.

There is none. We are all simply waiting for the Supreme Court to rule in Reed Elsevier v. Muchnick. When the justices have spoken, we'll be in a position to assess what that decision means for the future of the copyright class-action settlement and for the writers' rights issues the objectors have been raising for nearly five years.

The closely related matter of the Google Books settlement is also awaiting the next step in the judicial process: its review at the district court level. Anything that I would try to add to that discussion would be redundant at this point. Personally? I like the line of James Grimmelman that "this is no way to run a culture." But I've said that, and said it again. Right now, like all of you, I'm watching and waiting.

Google French Copyright Case -- THAT'S What I'm Talkin' About

2009-12-18T08:26:00.000-08:00

A French court has ordered Google to pay 300,000 euros ($430,000) to a publisher for book-scanning infringements -- plus 10,000 euros a day until it takes them down.

I confess that I know nothing about the facts of this case, which are reported at http://news.cnet.com/8301-1023_3-10418319-93.html.

However, I can assert confidently that this is what well-designed infringement litigation does (such as the case on which I consulted, Ryan v. CARL, which resulted in a $7.25 million settlement in 2000).

Litigation is not supposed to write legislation. It is supposed to hammer infringers and, in the process, influence legislation.

Plugola Central: Muchnick on Obama, WWE, and Senate Candidate Linda McMahon

2009-12-17T09:42:00.000-08:00

TODAY AT BEYOND CHRON

Obama’s Shame – “Christmas Gift” to WWE’s GOP Senate Candidate Linda McMahon

http://www.beyondchron.org/articles/Obama_s_Shame_Christmas_Gift_to_WWE_s_GOP_Senate_Candidate_Linda_McMahon_7654.htm

Nothing On Our Case From Supreme Court Today

2009-12-08T08:08:00.000-08:00

The Supreme Court today released its first decisions for this term, but ours was not among them. We think the next decisions will be out on January 11-12.

(Thanks to blog reader Moxie for monitoring with us.)

Google Books And Obama Justice (full text)

2009-11-23T05:24:00.000-08:00

[originally published on November 18 at Beyond Chron, http://www.beyondchron.org/articles/In_Google_Books_Settlement_2_0_Obama_Justice_Is_the_Great_Decider_7565.html]

In Google Books Settlement 2.0, Obama Justice Is the Great Decider

by Irvin Muchnick

An audacious global settlement of a copyright dispute between Google’s “ask forgiveness, not permission” book-scanning project and two trade groups, representing some book publishers and some authors, was sent back to the drawing board two months ago after the Justice Department filed a blistering 28-page “Statement of Interest.” The brief attacked the deal on antitrust, copyright, and class-action abuse grounds.

The parties last week emerged from a furious round of further secret negotiations to issue a revised settlement that they hope will spur quick new approval. Google Books Settlement 1.0 was cut-and-pasted, sliced, diced, pureed, processed – and, above all, triangulated in an effort to meet concerns articulated formally by hundreds of domestic creators, access and privacy advocates, and potential Google competitors, and less formally by foreign governments and constituents.

But make no mistake: It was the loud voice of Obama Justice that forced this strategic retreat and reload. And it is Obama Justice that will decide the fate of Google 2.0. The case judge, Denny Chin, has been nominated for promotion to the Second Circuit Court of Appeals. The administration already faces heavy criticism for the snail’s pace of its judicial and other appointments, despite the advantage of a lopsided Democratic majority in the Senate, which reviews them. So does anyone really think Judge Chin will call an audible after William F. Cavanaugh, the deputy assistant attorney general of the Antitrust Division, sends in a new play?

That’s why I’ve told my friends to circle February 4, 2010 on their calendars. Under the current proposed schedule, that is the deadline for Justice’s response to Google 2.0.

The new version takes one huge chop out of the old one by confining itself to books with copyrights registered in the U.S., plus those published in Britain, Canada, or Australia. This will approximately halve the universe of books digitized by Google without prior consent.

However, on the threshold provision of requiring rights holders to “opt out” if they don’t want to participate, rather than “opt in” if they do, 2.0 returns a gigantically lawyered hedge. As it stands, rather than forging full-speed ahead when rights holders cannot be located – the so-called “orphan works” scenario – Google and a proposed Book Rights Registry (which will be controlled by the named plaintiffs: the Association of American Publishers and the Authors Guild) would deputize and fund something called the Unclaimed Works Fiduciary. The UWF would more aggressively track down the authors and publishers who control the rights, and would help set terms for future use of the books that remained orphans. The settlement agreement provides for accomplishing the latter “to the extent permitted by law.”

Well, thanks a lot! James Grimmelman of the New York Law School, the most exhaustive and astute independent Google deal-watcher, has observed that what this adds up to is an invitation to Congress to wrestle with the comprehensive overhaul of copyright it hasn’t undertaken since 1976 – while private parties get a head start on their own rendition of what that reform should look like. Calling it “a clever hack,” Grimmelman doubts that it is legal.

I call it a legal tongue-twister worthy of the late, great Theodor Geisel, “Dr. Seuss.” Unlike some of my fellow writers, I think the ultimate solution is, indeed, an “opt-out” system – but one that must be established openly by Congress via “compulsory license” legislation, which would include royalty schedules fairly balancing the interests of publishers, creators, and the public. The loose model is ASCAP, which took on a similar role in the music industry with the advent of radio and recording equipment.

Zoe Lofgren, the Silicon Valley congresswoman who receives campaign contributions from CEO Eric Schmidt and other Google executives, claims the settlement achieves what those in the legislative branch “failed to achieve.” I say Lofgren should speak for herself.

In a related vein, Google is the subject of a new book by The New Yorker’s Ken Auletta entitled The Googlization of Everything. Seemingly unaware of the implications of what she was reporting, the San Francisco Chronicle’s Julian Guthrie gushed about Schmidt inviting Auletta to the Google campus for a reading, and the book’s sale at discount to company employees.

Technology and social critic Andrew Keen, for his part, read The Googlization of Everything and came away stunned by Auletta’s almost preternatural ability to write such a bland and inoffensive tome on one of the most polarizing institutions in America today.

Now Google Books Settlement 2.0 rests in the hands of Obama Justice, which will decide whether cutting this baby in half was good enough.

Irvin Muchnick (http://muchnick.net; http://twitter.com/irvmuch) is lead respondent in the current Supreme Court freelance writers’ case Reed Elsevier v. Muchnick, whose issues are similar to those of the Google case. He is also author of the new book CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death.

Confidential To Pam Samuelson: Please Add a Teaspoon of Vision to Your Abstract Critique of Google Books

2009-11-19T09:31:00.000-08:00

Fellow Berkeleyan Pam Samuelson, the distinguished University of California law professor and director of the Berkeley Center for Law & Technology, has been commenting on the flawed Google Books settlement for The Huffington Post. Her “New Google Book Settlement Aims Only to Placate Governments” (http://www.huffingtonpost.com/pamela-samuelson/new-google-book-settlemen_b_358544.html) happened to precede by about 12 hours my own “In Google Books 2.0, Obama Justice Is the Great Decider” for Beyond Chron (http://www.beyondchron.org/articles/In_Google_Books_Settlement_2_0_Obama_Justice_Is_the_Great_Decider_7565.html).

Samuelson is somewhat more partisan on this subject, and hence more scathing. (On Reed Elsevier v. Muchnick, or "Freelance," it’s no doubt the other way ‘round: Samuelson hasn’t said anything about that case.) There are, however, some similarities in our Google Books analyses. Like me, Pam looks at the fallout of the Justice Department brief on the original settlement proposal and concludes that the changes in 2.0 owe more to international diplomacy than to thoughtful domestic policy.

But I’m also struck by Samuelson’s level of abstraction, a common trait of academics. Your humble blogger speculates on what’s going to happen next with Judge Denny Chin; Pam ends her essay with the fervent hope that the unnamed “judge who is responsible for deciding” will do the right thing.

I’m taking some liberties in referring to Samuelson as “Pam,” but we have had a sporadic and friendly correspondence over the years. In 1997 she won a MacArthur Fellowship, the so-called “genius award,” and richly deserved it. She has forgotten more about digital copyright law than I will ever know – obviously.

That said, I wish that she, like many other well-positioned observers, would connect a few of the dots and talk a little more about the solution that the Google paradigm – if substantially corrected than rather just tweaked – could go a good distance toward defining.

The first class action in which I was involved, Ryan v. CARL, against the now-defunct fax article delivery service UnCover, settled in 2000 for $7.25 million. When I became a litigation consultant, after a term on the staff of the National Writers Union, I hoped that the hammering of some of these dead-bang infringers of freelance writers’ rights would lead to a negotiated royalty system. Yet in the coverage of the UnCover settlement in the San Jose Mercury News, Pam's quote was this: “You run the risk of killing the goose that lays the golden egg.” (In fairness, the newspaper reporter might have phrased a question poorly or published an out-of-context answer.)

Today, for me, the key point about Google 2.0 is not that a huge corporation is making a power grab – which it is; nor that it deliberately released the revised settlement in the middle of the night and ducked a debate on the NewsHour with Jim Lehrer – which it did; nor even that the language about an Unclaimed Rights Fiduciary operating “to the extent permitted by law” fudges the root problem – which it does.

For me, the key point is that between Google and the Freelance case now at the Supreme Court, the courts have exposed about all there is to expose with respect to the need for Congress to step in and do its job on copyright reform. In that process, everyone will have to give up something. Publishers will have to give up their virtually no-cost (Freelance) or monopolized (Google) stranglehold on the commercialized public record. Creators will have to give up their quaint notions of complete control over what has already been published. Users will have to learn that information is not free, but has a price – what should, to be sure, be a fair price, and one that reduces rather than widens the chasms in our two-tiered society.

(P.S. to Pam: If you thought that was me ducking into the Cheeseboard in North Berkeley the other day, you were right – I was hiding from a rabid mob of pro wrestling fans.)

'In Google Books 2.0, Obama Justice Is the Great Decider' ... today at Beyond Chron

2009-11-18T08:40:00.000-08:00

"In Google Books Settlement 2.0, Obama Justice Is the Great Decider"

http://www.beyondchron.org/articles/In_Google_Books_Settlement_2_0_Obama_Justice_Is_the_Great_Decider_7565.html

Eric Hellman on Google 2.0 -- Recommended Reading

2009-11-16T09:34:00.000-08:00

"The Book Rights Registry Unclaimed Works Fiduciary: Powerful Regent or Powerless Figurehead?"

http://go-to-hellman.blogspot.com/2009/11/book-rights-registry-unclaimed-works.html

Form 19

2009-11-16T08:01:00.000-08:00

Copyright law blogger Shourin Sen has a new item headlined "Form 19 and oral arguments in Reed Elesevier v. Muchnick." See http://www.exclusiverights.net/2009/11/form-19-and-oral-arguments-in-reed-el/.

The analysis is densely technical and doesn't try to connect to the larger issues in the case in a way that would lend to further comment by me. But thanks for the contribution to the scholarship of the question of whether copyright registration should be construed as mandatory or jurisdictional.

DOJ Response Will Determine Fate of Google Settlement 2.0

2009-11-15T19:06:00.000-08:00

Circle Thursday, February 4, 2010, on your calendar. Under the approval schedule proposed by the parties of the revised Google Books settlement, that is the date when the Justice Department will file its response to Settlement 2.0, which was submitted last Friday to Judge Denny Chin.

Make no mistake. After authors, librarians, privacy advocates, and Google's would-be competitors screamed bloody murder, it was the 11th hour "Statement of Interest" by the government, combined with the complaints of foreign governments, that forced the parties to punt at the October 7 fairness hearing.

The new version of Google's project, somewhat less audacious in scope, now does not encompass "orphan works" the world over, but only English-language works published in the U.S., Canada, Britain, and Australia. There are also numerous changes on the margins. However, the default of exploiting the future rights of absent class members who do not opt out is still there.

What we don’t know, of course, is what has happened behind the scenes. The process here is a kind of legislation-by-litigation: the de facto change in copyright law that it contemplates, under our system, should be deliberated by Congress. During the recent hearing by the Senate Judiciary Committee, Congresswoman Zoe Lofgren – who represents the California district in which Google is headquartered, and whose campaigns receive financial backing from Google executives – gave us the extraordinary spectacle of a legislator deferring to other branches of government on matters of legislative purview: “At this point we don’t have a role to play.... [The settlement represents] the private sector achieving what we failed to achieve.”

To extend that image, the talks between the settlement parties and the Justice Department Antitrust Division are a bad analogy to legislative mark-up sessions, or perhaps conference committees resolving different versions of a bill passed by both the Senate and the House of Representatives.

As analyst James Grimmelman alertly noted, Settlement 2.0 does not go as far as the DOJ brief tried to nudge it in fundamental areas. But did the Justice lawyers have an advance peek at the new version, and did they, with bureaucratic winks and nods, give the parties reason to believe that the government would hold further fire?

While other questions of abstract law remain, that is the question.of realpolitik. The answer, most likely, will spell whether the project gets court approval in its present form.

Edward Hasbrouck's Take on Google 2.0

2009-11-14T11:23:00.000-08:00

Edward Hasbrouck has some good first thoughts on his reading of Google Books Settlement 2.0. See http://hasbrouck.org/blog/archives/001781.html.

Edward is harsher than I am, and he may be right. "It's still fundamentally an opt-out, license by default system, not opt in," he notes.

He also slams "a really devious catch in the revised proposed arbitration provisions." Authors cannot unilaterally choose to go to court instead of arbitration; bypassing arbitration requires mutual consent.

I don't know if we're back in the top of the first inning, or down to the bottom of the seventh, but there's obviously a lot more here to read, sift, and weigh.

Until You’ve Studied James Grimmelman on Google Settlement 2.0, Don’t Bother Me

2009-11-14T10:09:00.000-08:00

The redoubtable James Grimmelman is first and best out of the gate with a comprehensive analysis of Google Books Settlement 2.0, which was filed late yesterday.

Before asking me what I think, go directly to Grimmelman’s “The Laboratorium” (http://laboratorium.net). Do not pass “go.” Do not collect $200, especially if you intend to deposit it with the Authors Guild’s Book Rights Registry. Pending further review, spend your money, instead, on bulk orders for my new book CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death. Or on a long-term subscription to Dave Meltzer’s Wrestling Observer Newsletter.

Grimmelman, the Dave Meltzer of Google Books settlement watchers, has about as much as you can say in one gulp about Settlement 2.0 in a late-night blog entry headlined “Midnight Madness.” He and his New York Law School acolytes are working feverishly on more detailed comments and resources.

My own instant analysis of Settlement 2.0 is strictly vicarious. I am not a party to the Google case, having opted out. Settlement 2.0 is as much a political document as a legal one. It is an act of triangulation attempting to address objections and comments – hundreds of objections and comments, almost all of them thoughtful, and many of them rigorous – from authors, foreign governments, the Justice Department Antitrust Division, and others.

As part of what I think is the same triangulation process, I suggested, in a letter to Attorney General Eric Holder, that Google Books be considered in tandem with the Supreme Court freelance journalists’ case, Reed Elsevier v. Muchnick. At the time, Grimmelman, among others, pooh-poohed this idea as a bit of a reach, and of course it is. So is Google!

Whatever the flaws of Settlement 1.0, I have always liked its vision of some kind of royalty system. I have wondered loudly why the same vision cannot be applied to the magazine and newspaper articles at issue in Reed Elsevier v. Muchnick. The answer, of course, is that it absolutely can, and especially since the two cases have a common plaintiff, the Authors Guild, which is playing point on the royalty system. But that doesn’t mean it will happen – mostly because freelancers lack the marketplace clout or cohesion of even the relatively powerless and uncohesive community of book authors.

(The Authors Guild’s partners in Freelance, the National Writers Union and the American Society of Journalists and Authors, have broken off and criticized the Guild for its Lone Ranger stewardship of Google Books; NWU and ASJA even joined a new coalition called the Open Book Alliance. And they objected to Google Settlement 1.0 on some of the precise grounds we objectors raised in Freelance! Go figure. Get your scorecards here, everybody. Just as Grimmelman is the eminence grise of Google Books, so is your humble blogger the go-to guy, the “eminence grease,” of the chronicle of 15 years of writers’ struggles to get a toehold on the promise of new technologies to empower them vis-à-vis corporate publishers.)

Immediately, two elements of Grimmelman’s instant analysis jump out at me. One is this:

“The DOJ all but invited Google and the plaintiffs to empower the Registry to license Google’s competitors; they declined that all-but-invitation. They’re going to try to tough this one out; the DOJ will have to decide whether to back down or to fight, as this amended settlement doesn’t give it one of the central changes it asked for.”

We shall see on that one. The other element is Grimmelman’s observation that an ambiguous provision of Settlement 2.0 authorizing the proposed Book Rights Registry to re-license works “to the extent permitted by law” leaves open the door for Congressional action to sanitize the future practices of this system. I’m not trying to put words in Grimmelman’s mouth, but I think it’s fair to say that he, like me, wonders whether these de facto royalty systems based on “compulsory licenses” blessed by the courts in private litigation are kosher.

At the end of a long day of googling, Congress must step into this mess – these messes, plural – and apply some appropriate democratic process to new information arrangements that will fairly treat the interests of publishers, authors, and the general public.

Where Are You, Congress?

2009-11-13T09:01:00.001-08:00

This one in The Wall Street Journal says nothing about writers' rights per se -- but in a highly sophisticated way it makes the point that The Google Problem is one for Congress, not the courts. A must read:

Google and the Copyright Wars
By BRUCE W. SANFORD AND BRUCE D. BROWN
http://online.wsj.com/article/SB10001424052748704402404574523454258004332.html

Copyright Comic Relief Cross-Post (And Self-Promotion)

2009-11-11T07:35:00.000-08:00

"Wrestling Observer Discussion Board: Into the Den of the Wolves in Sheeps' Clothing"

http://wrestlingbabylon.wordpress.com/2009/11/11/wrestling-observer-discussion-board-into-the-den-of-the-wolves-in-sheeps-clothing/

Royalties For All

2009-11-10T10:41:00.000-08:00

While we wait four additional days for the unveiling of Google Books Settlement 2.0, a post by blogger Chris Bour takes me back, in a serious way, to my recent whimsical discovery that my first national magazine article ("The Game I'll Never Forget," by France Laux as told to Irv Muchnick, Baseball Digest, June 1970) is available on Google Books.

See "Browsing magazines in Google Books," http://chrisbourg.wordpress.com/2009/11/05/browsing-magazines-in-google-books/. (Thanks again to blogger-twitterer Eric Rumsey for the pointer.)

This area brings my work as an activist on this issue full circle. In 1994, I led a group of National Writers Union members in confronting a fledgling fax-on-demand article delivery service called UnCover, an affiliate of a for-profit spinoff of the Colorado Alliance of Research Libraries. UnCover became the first licensee of an even more fledgling collective licensing agency, called Publication Rights Clearinghouse, which I launched for the NWU during my period as its assistant director (1994-97).

In 1997 I left the NWU staff, mostly because Publication Rights Clearinghouse was going nowhere and because I felt UnCover, a dead-bang infringer that was supposed to be working with us to expand it, was instead blowing us off after milking its PR value. I became a copyright litigation consultant and packaged a case against UnCover, Ryan v. CARL, that settled in 2000 for $7.25 million.

And the rest is history.

Much more recently, with the Google Books settlement in suspense and with the Reed Elsevier v. Muchnick (or "Freelance") case at the Supreme Court on a technical jurisdictional question, I wrote to Attorney General Eric Holder to propose that the Justice Department, which had just intervened constructively in the Google case, now use its good offices to coordinate the Google and Freelance cases. The two cases involve the same root issue: the reuse, without permission or compensation, of previously published authors' works.

The news that Google Books has already begun moving seamlessly into magazine article retrieval just underscores that all this litigation, in the public-policy sense, is of one piece. And that a fair and equitable royalty system (which the Google Books settlement proposes but the Freelance settlement does not) is an obvious solution if it can overcome Constitutional hurdles. (I am among those who believe compulsory licenses are probably Congressional, not judicial, business.)

Meanwhile, all of you freelance magazine writers out there can follow the growth of Google Books for yourselves, and get as creeped out as I was when I learned that an obscure 39-year-old article of mine, written when I was 15, is already part of the system.

Google Books Settlement 2.0: Four-Day Extension

2009-11-09T11:31:00.000-08:00

The deadline was today for the settlement parties' revision of the Google Books settlement. But as you've probably already read, the parties today asked U.S. District Court Judge Denny Chin for an extension to this Friday, November 13.

What to Look for in Google Books Settlement 2.0

2009-11-05T07:48:00.000-08:00

Kenneth Crews, director of the Copyright Advisory Office at Columbia University Libraries/Information Services, has a useful scorecard of bullet points we should be reading closely in the revised Google Books settlement. Settlement 2.0 is scheduled for submission shortly to U.S. District Court Judge Denny Chin. See Crews' blog post "Getting Ready for November 9," http://copyright.columbia.edu/google-books-getting-ready-november-9.

And while you're at it, check out Crews' September 21 post, "Justice and Google Books: First Thoughts about the Government's Brief," http://copyright.columbia.edu/justice-and-google-books-first-thoughts-about-governments-brief.

My own perspective has fewer specifics and more cynicism. I am focused on the money quote from the Justice Department's intervening "statement of interest":

As a threshold matter, the central difficulty that the Proposed Settlement seeks to overcome – the inaccessibility of many works due to the lack of clarity about copyright ownership and copyright status – is a matter of public, not merely private, concern. A global disposition of the rights to millions of copyrighted works is typically the kind of policy change implemented through legislation, not through a private judicial settlement. If such a significant (and potentially beneficial) policy change is to be made through the mechanism of a class action settlement (as opposed to legislation), the United States respectfully submits that this Court should undertake a particularly searching analysis to ensure that the requirements of Federal Rule of Civil Procedure 23 (“Rule 23”) are met and that the settlement is consistent with copyright law and antitrust law. As presently drafted, the Proposed Settlement does not meet the legal standards this Court must apply.

Ah yes. A threshold matter. Public, not merely private, concern. The kind of policy change implemented through llegislation, not through a private judicial settlement.

It seems to me impossible to satisfy this standard in a few frenetic weeks of renegotiation -- most significantly, renegotiation by the private settlement parties themselves.

If Settlement 2.0 is a tweak rather than an overhaul, and the government either endorses it or doesn't raise a peep this time, then the initial exercise will have accomplished little, except possibly a play to the grandstands by the Antitrust Division. I hope that doesn't happen.

GoogleCreep

2009-11-04T10:10:00.000-08:00

I am not one who gets carried away by the theme of Google's Big Brother creepiness. I realize this is a major concern for many others, whether or not they're writers, but I try to keep the focus on copyright law and policy, balanced with information enhancement. As Clarence Darrow pointed out at the Scopes Monkey Trial, with innovation and progress we often lose a little something even as we gain a lot of something else.

That said, I've had two online experiences in recent days that return me to that theme, with a vengeance. One is the discovery that my very first published national magazine article is now displayed at Google Books. It is from the June 1970 issue of Baseball Digest, when I was 15 years old. See p. 37 of http://books.google.com/books?id=dzIDAAAAMBAJ&pg=PA3&source=gbs_toc&cad=1#v=onepage&q=&f=false.

I'm not claiming infringement here. Just creepiness, down to my very bones.

The other experience was being reminded by Eric Rumsey (who is becoming one of my favorite bloggers and twitterers) of one of the most hilarious life-imitates-art parodies ever published by The Onion. See "Google Announces Plan to Destroy All Information It Can't Index," August 31, 2005: http://www.theonion.com/content/node/40076.

Google Books' Version of 'New Facts on the Ground'

2009-11-03T08:43:00.000-08:00

We're waiting for the Supreme Court ruling in "Freelance" (Reed Elsevier v. Muchnick) and for the revised Google Books settlement in federal district court. In the meantime, blogger Eric Rumsey has posted a must-read piece, "Google Books Integrated into Google Search Results," http://blog.lib.uiowa.edu/hardinmd/2009/10/30/google-books-integrated-into-google-search-results/. I urge everyone to reflect on its implications.

Rumsey astutely notes that the settlement controversy has distracted Google-watchers from the way Google Books actually works. "Several notable improvements were made during the summer," he writes, and "that got very little recognition. Another change that seems to have gotten little recognition is that Google web searches have begun to include links to books in GBS in the last 1-2 years."

I am quick to concede that Rumsey and I seem to be approaching this news from different angles. Rumsey, a medical librarian, may see these "improvements" as a good thing. I see them as another example of what I call the corporate infringer's m.o.: creating new facts on the ground that make a mockery of the legal system.

In Freelance, we've seen the Orwellian "standstill agreement" by which one side (the plaintiffs) stood still, while another side (the defendants) continued infringing, expanded infringement, and indeed used these practices to create new and ever-more-ingenious ways to exploit writers' previously published works. These unilateral maneuvers seem to have succeeded in some measure in endearing them to naive end users, who came to see big publishers as friends, and independent creators as enemies, of access.

Not surprisingly, Google has done -- and, as "settlement" "negotiations" proceed, continues to this day to do -- the very same thing. The illusion of access, with the predatory pricing of "zero" for redistribution of pirated works, isn't just the mother's milk of the new information industry. It's the heroin. It's part of the package by which the bad guys "ask forgiveness, not permission," because they are "too big to fail."

Plugola Central: CHRIS & NANCY Author Muchnick in the Media

2009-10-31T07:54:00.001-07:00

CHRIS & NANCY: The Great Debate
http://wrestlingbabylon.wordpress.com/2009/10/31/chris-nancy-the-great-debate/

=====

Muchnick’s Iowa Radio Interview in Podcast Form
http://wrestlingbabylon.wordpress.com/2009/10/31/muchnicks-iowa-radio-interview-in-podcast-form/

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Benoit Book Author Muchnick Interviewed on CBC Radio’s ‘Daybreak Alberta’
http://wrestlingbabylon.wordpress.com/2009/10/31/benoit-book-author-muchnick-interviewed-on-cbc-radios-daybreak-alberta/

Latest on Google Books

2009-10-26T08:40:00.000-07:00

From Andrew Albanese of Publishers Weekly:

"Google Opponents Urge Court to Reconsider Restrictions on Revised Settlement"
http://www.publishersweekly.com/article/CA6703643.html?nid=2286&rid=##CustomerId##&source=title

Interview on KRON 4 News in San Francisco

2009-10-16T08:17:00.000-07:00

On Wednesday I was interviewed on the KRON 4 Evening News in San Francisco about my new book CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling's Cocktail of Death. At the beginning of the interview is a quip about Reed Elsevier v. Muchnick. The link is http://www.youtube.com/watch?v=hGuVVszpep4.

Supreme Court Reflections, Part 5 – Ginsburg Nails Publishers’ Inconsistency on Registration

2009-10-13T11:37:00.000-07:00

In a revealing exchange, Justice Ginsburg pressed Charles Sims, representing Reed Elsevier and the other petitioner-defendants, on whether the publishers had taken inconsistent positions: “That is, back in the district court before there was a settlement, you urged before the district court that 411(a) was a jurisdictional bar and that that precluded certifying a class that included the non-registered copyright holders. You did make that argument in the district court, and now you are saying -- you are confessing error, that was wrong?”

None too diplomatically, Sims confessed to being guilty only of loose language – “exactly the loose language that this Court was guilty of” in a couple of cited cases.

“Well, you shouldn’t use loose language,” Justice Antonin Scalia countered dryly, “especially when it’s the same loose language, supposedly, that seems to have been used by all the courts …”

If this were Moot Court, Sims would not have gotten the highest grades. Assistant Solicitor General Ginger Anders, arguing for the government, fared even worse, contradicting her own written brief when she took the fence-straddling position that copyright registration prior to suing could not generally be waived, but perhaps could be waived in this particular case.

Amicus Merritt had the best chemistry with the justices in oral argument. Of course, she also, in a sense, was handed a gift in the utter absence of subtlety in the position that the courts simply did not have jurisdiction over unregistereds even in a settlement scenario.

In my mind, Merritt did not persuasively engage Breyer on the need for creativity with new technologies. Merritt’s reading of the legislative history – or, as she called it, the “story” of copyright – as technology-neutral was met quizzically by Breyer, who wondered, “In 1909 Congress thought all this through with the databases and so forth?” Breyer's question drew laughter in the gallery.

Supreme Court Reflections, Part 4 – The Counterintuitive Roles of Stevens and Breyer

2009-10-13T11:35:00.000-07:00

For me, what made the Stevens and Breyer bull’s eyes even more delightful is that they came from the very two justices who dissented from the Supreme Court’s 7-2 majority in favor of the authors in Tasini v. Times.

I have argued repeatedly that Reed Elsevier v. Muchnick is a kind of Tasini II – or, at the very least, the real world’s first nuts-and-bolts application of Tasini principles.

So maybe the intellectual explanation for Stevens’ and Breyer’s 2001 dissents is not so much that they were less concerned about writers’ rights as that they were more focused on the long-term vision of public access to copyrighted works. In my reading, Ruth Bader Ginsburg’s majority opinion in Tasini clearly pointed the way toward a royalty system as the access solution. Perhaps Breyer has evolved into the Court’s most articulate champion of that solution.

Supreme Court Reflections, Part 3– Breyer and the Case for a Royalty System

2009-10-13T11:32:00.000-07:00

Seemingly out of nowhere and rather brilliantly, Justice Stephen Breyer found a way to make a compelling case for a royalty system:

“… I mean, the problem, I take it, realistically is this: let's take a group of people who want to make databases; now they want to use copyrighted material. There is a subset of people who have written it they can't find, so they say here's what we will do. We will take $100 billion, and we will put it in a fund, and like ASCAP, that fund can administer this money for the benefit of anyone who turns up.

“ Now, maybe that's illegal under some law. Maybe the class isn't right. Maybe they can't get proper representation. Maybe it's inadequate, et cetera. But what I … fail to see, is how -- whether you could do that or not do it has anything to do with registration, because we are talking about the people who aren't here, all of whom, if you ever bring suit when he's found, will register the copyright. The only reason they haven't registered, we don't know who they are, that's why. Maybe they have registered, for all we know.”

Perhaps we can’t enact a royalty system because it would yield an unfair result, Breyer mused. On the other hand, “Maybe it won’t, by the way…. It depends on what the terms of the settlement are. We could have a subclass that allows a subset of those people to come into court. No reason you couldn't. So I don't know whether or not it's true that they won't register when they are found.”

When I describe Justice Breyer’s remarks as coming out of nowhere, I am referring to the fact that this passage marked his only vocal participation in the hearing. I am not slighting his logic. Breyer actually tied everything together, organically and impeccably, when he added, “It’s rather surprising that this law [jurisdiction] is the one that will answer that question.” In her rejoinder to this point, at least, Deborah Jones Merritt, the Court-appointed amicus defending the Second Circuit decision, came off as more glib than convincing.

Supreme Court Reflections, Part 2 – Stevens and the Master Challenge

2009-10-13T11:31:00.000-07:00

I was heartened by the common-sense cut to the chase of the senior associate justice, John Paul Stevens. “I really don’t understand,” Stevens said, “why it makes any difference whether you call a requirement mandatory or whether you call it jurisdictional in terms of the fairness of settlement … [A]s a practical matter, it doesn’t seem to make any difference.”

Earlier, Stevens had raised the same question. Later he reinforced it yet again: “[W]ould you not make all the arguments directed at the fairness of the settlements and so forth if it were merely mandatory?”

Strong stuff.

Supreme Court Reflections, Part 1 – Introduction

2009-10-13T11:25:00.000-07:00

In this series of posts, I will highlight what I think were the most intriguing passages in the oral argument at the Supreme Court last Wednesday in Reed Elsevier v. Muchnick. The full transcript, including the input of six justices, is at http://supremecourtus.gov/oral_arguments/argument_transcripts/08-103.pdf. (Sotomayor, who had recused herself, was not there; Thomas and Alito said nothing.)

First, a disclaimer on what I don’t intend to be conveying with these observations. I do not presume to be predicting how the justices will rule. Anyone who answers that question with much more than “we shall see” is blowing smoke. For one thing, from the outside we have no idea of the weight of oral argument in the overall deliberation.

Second, experienced Supreme Court watchers will tell you that when a justice raises a point, it is best understood as part of a conversation with the other eight justices, rather than necessarily as a direct address to the advocate to whom he is speaking. When such indirect dialogue occurs, the conversation could be about this case; or if it could be about the general drift of the Court in a family of cases; or it could be about something else altogether. Again, who are we to say? The final decisions themselves can be hard enough to interpret.

The final reason I’m not making a prediction is simply this: I’m not sure what would constitute “winning” with respect to the specific question on jurisdiction that the Supreme Court accepted for review. If the Second Circuit ruling is upheld, the settlement is dead. If the Second Circuit is overruled, it will face, on remand, review of the merits of the objectors’ case against the settlement. If we were in the Wild West, this settlement would be summarized as “wanted, dead or alive.”

Coverage of Yesterday's Supreme Court Argument

2009-10-08T10:10:00.000-07:00

I will have more to say later on my own impressions of yesterday's oral argument at the Supreme Court in Reed Elsevier v. Muchnick. (Quickly: Attending the hearing along with my son Jacob, and with attorney Charles Chalmers and his wife Laurel, was an incredible experience. I was struck by the acuity all six justices who posed questions -- including sharp insights from a couple of unexpected sources.)

I also will comment down the road on what happened yesterday at district court in New York: the new target of the Google settlement parties to have a revised deal together next month.

Here are quick links to the Reed Elsevier v. Muchnick coverage I have read:

* Lyle Denniston at SCOTUS Blog: "Analysis: Copyright settlement may be in doubt"
http://www.scotusblog.com/wp/analysis-copyright-settlement-in-doubt/
Excellent.

* Exclusive Rights (a copyright law blog): "Supreme court hears oral arguments in Reed Elsevier"
http://www.exclusiverights.net/2009/10/supreme-court-hears-oral-arguments-in-reed-elsevier/
The author of this post -- presumably attorney Shourin Sen -- was working from the transcript and didn't know at least some of the background, as he wrote: "Justice Sotomayor, who was as an intellectual property practitioner before being appointed to the Southern District of New York, did not ask a question." Sotomayor was not at the hearing -- she had recused herself.

* C.E. Petit at Scrivener's Error: "GBS Update"
http://scrivenerserror.blogspot.com/2009/10/9a07a.html
Petit correctly calls Reed Elsevier v. Muchnick "the elephant in the room."

At the Bell in 'Reed Elsevier v. Muchnick'

2009-10-06T09:14:00.000-07:00

Oral argument in the landmark freelance writers' rights case, Reed Elsevier v. Muchnick, will be heard at the Supreme Court of the United States on Wednesday, October 7, at 11 a.m. Eastern time. The transcript of the session should be published within hours at http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html.

The question before the Court is: "Does 17 U.S.C. Sec. 411(a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?"

In 2007, the Second Circuit Court of Appeals, in an unprompted or sua sponte ruling, answered that question in the affirmative, thus invalidating a global settlement of a copyright dispute between freelance writers and periodical publishers and their electronic database licensees. The settlement was in a consolidation of class actions called In re Literary Works in Electronic Databases Copyright Litigation. That settlement, in turn, was an offshoot of the 2001 Supreme Court case Tasini v. New York Times. A slate of objectors had opposed the approval of the settlement in 2005 by the U.S. District Court in the Southern District of New York, and appealed to the Second Circuit. The Supreme Court this year renamed the case Reed Elsevier v. Muchnick.

Without public elaboration, the newest of the nine justices, Sonia Sotomayor, recused herself from consideration of this case. Though Sotomayor was not part of the ruling at the Second Circuit, which was made by a three-judge panel, it is probable that she participated in procedural deliberations prior to denial of the parties' petitions for rehearing "en banc," or by all the judges of the Circuit. (Also noteworthy is that Sotomayor, as a district court judge in 1997, issued the original ruling in Tasini v. Times; that decision, interpreting the Copyright Act in a way favorable to the publishers in the electronic-database dispute, was reversed by the Second Circuit and the Supreme Court.)

Wednesday's Supreme Court argument time has been allocated to Charles Sims of Proskauer Rose (counsel for lead petitioner Reed Elsevier); U.S. Solicitor General Elena Kagan (arguing the government's position, which also advocates for reversal of the Second Circuit's jurisdiction ruling); and Deborah Jones Merritt (appointed by the Supreme Court to defend the Second Circuit decision). The attorneys for the objector-respondents -- Charles Chalmers and the Stanford Law School Supreme Court Litigation Clinic, directed by Pamela Karlan and Jeffrey Fisher -- will not be making oral arguments. Nor will the attorneys for the named plaintiffs.

High Court watchers will be studying not only whether the justices overturn the Second Circuit, but also how they arrive at their decision. The grounds for the ruling will have a major impact on whether this settlement could be saved and how those efforts would proceed. The highly publicized Google Books settlement, which is currently delayed by objections at the district court level, also could be affected by how Reed Elsevier v. Muchnick plays out.

Here, from our perspective and in chronological order, are the most important overview articles about the case:

Publish AND Perish: Confronting the Post-"Tasini" World
The Charleston Advisor, October 2001
http://freelancerights.blogspot.com/2009/09/freelance-rights-vault-my-2001-essay-on_28.html

The Promised Bang of the Upcoming Copyright Class Action Settlement for Authors Could End Up Being a Whimper
(written in early 2005 and submitted to trade publications; not published; later published at the Freelance Rights Blog)
http://freelancerights.blogspot.com/2009_03_01_archive.html (scroll down to March 12 post, "Flashback to a Flashback")

Freelance Writers' Class Action Settlement: A Tree Falls in the Media Forest
Beyond Chron, March 12, 2007
http://www.beyondchron.org/articles/Freelance_Writers_Class_Action_Settlement_A_Tree_Falls_in_the_Media_Forest_4285.html

LJ Newsmaker Interview: Behind the Recently Rejected "Tasini" Settlement
Library Journal, December 20, 2007
(Part 1 of 2; follow the link within to Part 2)
http://www.libraryjournal.com/info/CA6514628.html?nid=2673#news1

Congratulations to The Washington Monthly on Two Decades of Willful Copyright Infringement!
Freelance Rights Blog, January 22, 2008
http://freelancerights.blogspot.com/2008_01_01_archive.html (scroll down to January 22 post)

Supreme Court Weighs Reviving Freelance Writers' Settlement -- and Google Case Lurks
Beyond Chron, November 17, 2008
http://www.beyondchron.org/articles/Supreme_Court_Weighs_Reviving_Freelance_Writers_Settlement_and_Google_Case_Lurks_6300.html

The LJ Academic Newswire Newsmaker Interview: "Tasini" Settlement Objector Irv Muchnick
Library Journal, December 4, 2008
(Part 1 of 2; follow the link within to Part 2)
http://www.libraryjournal.com/article/CA6619955.html?nid=2673&rid=reg_visitor_id&source=link

Freelance Copyright Settlement: On to the Supreme Court
Beyond Chron, March 4, 2009
http://www.beyondchron.org/articles/Freelance_Copyright_Settlement_Onto_the_Supreme_Court_6668.html

"Reed Elsevier v. Muchnick" Is About the Hijacking of "Tasini v. Times"
Beyond Chron, September 14, 2009
http://www.beyondchron.org/articles/_i_Reed_Elsevier_v_Muchnick_i_Is_About_the_Hijacking_of_i_Tasini_v_Times_i__7345.html

Google Books, Freelance Settlements Equally Stalled -- and Inextricably Intertwined
Beyond Chron, September 29, 2009
http://www.beyondchron.org/articles/Google_Books_Freelance_Settlements_Equally_Stalled_and_Inextricably_Intertwined_7394.html

Google Books And Freelance Settlements Are Inextricably Intertwined (full text)

2009-10-01T06:44:00.000-07:00

[originally published on September 29 at Beyond Chron, http://www.beyondchron.org/articles/Google_Books_Freelance_Settlements_Equally_Stalled_and_Inextricably_Intertwined_7394.html]

by Irvin Muchnick

Faced with 400-plus objections from around the world, including a devastating brief by the U.S. Department of Justice, the settlement parties in the Google Books copyright case wisely asked District Court Judge Denny Chin for a second delay in the fairness hearing for consideration of their proposed deal, while they work behind the scenes with the government on revisions. The court is going ahead with a hearing on October 7, but not much of importance is expected to happen there.

This is a major victory for a makeshift coalition of Google’s competitors, information consumers, foreign governments, and authors. The latter were about an inch away from getting screwed in federal court yet again by – are you ready? – the Authors Guild.

It so happens that the oral argument at the Supreme Court in the freelance writers’ rights case, Reed Elsevier v. Muchnick, was also scheduled for October 7. That one is still on, and the elimination of the conflict is good: you don’t want Roger Mayweather’s comeback fight going head-to-head on pay-per-view with UFC 103.

Uh, that was a joke – I’m the Muchnick of Reed Elsevier v Muchnick.

But as I asserted in my September 14 Beyond Chron column, the two cases are linked. Now I would like to explain in more depth why “Google” and “Freelance” are, in practical terms, all but joined at the hip. Though they are at different procedural stages and are driven by different facts, they are also indistinguishable philosophically and in their long-term policy implications. I made these same points last week in a letter to Attorney General Eric Holder, the full text of which can be viewed at http://muchnick.net/lettertodoj.pdf.

Again, part of the story is that the Authors Guild quarterbacked both cases – a sideshow that is rapidly descending into farce. The Guild’s partners in Freelance, the National Writers Union and the American Society of Journalists and Authors, were among the people and entities filing Google objections. And not just any objections. NWU and ASJA argued that Google’s “opt-out” rather than “opt-in” algorithm “turns copyright on its head.” The objectors in Freelance have lodged the exact same criticism for more than four years.

If the Supreme Court sends Reed Elsevier v. Muchnick back to the Second Circuit Court of Appeals for review of the merits – the outcome desired by the respondent-objectors – there may well be a ruling down the road on the legality of opt-out vs. opt-in (or, as we call it, “license by default”).

Once more risking the anger of some of my writer-friends who don’t want to negotiate and are stuck in old paradigms, let me say that I personally believe default or “compulsory” licensing is very much part of the solution to the thorny problems of rights management in new technologies. But such an arrangement has to be tied to comprehensive negotiations among all the stakeholders, concluding with an industry-wide royalty system loosely modeled after the music industry’s ASCAP. As Register of Copyrights Marybeth Peters noted in her recent testimony before the House Judiciary Committee, it is questionable whether such licenses can be compelled by private litigation rather than by Congressional action. In my mind, such action would consist of sensible copyright reform, probably accompanied by antitrust waivers, to keep the information superhighway paved for all while fairly sharing revenues between publishers and authors.

We’ll have a much clearer sense of where all this is headed after the Supreme Court rules on the jurisdiction issue in Reed Elsevier v. Muchnick, either late this year or early next. In the meantime, I encourage everyone to exchange your plane tickets to New York on October 7 and, instead, visit our beautiful nation’s capital.

Irvin Muchnick’s CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death (benoitbook.com) should be landing in bookstores just about the same time the Supreme Court website publishes the transcript of the oral argument in Reed Elsevier v. Muchnick.

Plugola Central: CHRIS & NANCY Author Muchnick's Twitter Feed Publishes WWE Critique

2009-09-30T16:13:00.000-07:00

[cross-posted from http://wrestlingbabylon.wordpress.com]

CHRIS & NANCY Author Muchnick’s Twitter Feed Publishes WWE Critique

SEPTEMBER 30, 2009--In a Twitter exclusive, Irvin Muchnick, author of the new book CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death, has begun publishing in installments the complete text of World Wrestling Entertainment’s legal threats to him while he was researching the book.

In an exchange of emails with Muchnick in June 2008, Jerry S. McDevitt of Kirkpatrick & Lockhart Preston Gates Ellis — WWE’s outside counsel and registered Washington lobbyist — commented at length, often in colorful terms, on the serial reports on Muchnick’s blog Wrestling Babylon on the progress of his book research. The blog’s home page is now http://wrestlingbabylon.wordpress.com.

Earlier today, using Twitter’s 140-maximum-character interface, Muchnick’s Twitter feed, http://twitter.com/irvmuch, published the first 12 of a series of “tweets” documenting the McDevitt-Muchnick exchange in its entirety. The series will continue with 12-tweet daily bursts, accompanied by their daily collection in posts at the Wrestling Babylon blog.

This full text is also among the files included in a companion DVD of records related to Muchnick’s research for CHRIS & NANCY.

For CHRIS & NANCY’s table of contents, the Foreword by award-winning New York Post columnist Phil Mushnick (no relation to author Irvin Muchnick), and other preview elements and book information, go to http://benoitbook.com.

#####

Great Minds Think Alike

2009-09-30T13:05:00.000-07:00

My old National Writers Union friend Mike Bradley has published this letter to the editor at Beyond Chron in response to my piece there yesterday:

"Gee, it's deja vu all all over again. Maybe because Irvin Muchnick and I agree so often, I think he is brilliant. Licensing agencies ARE the only sufficient solution. When I drafted the statement of the National Writers Union on orphan works, that was its principal point. I think I might have added that failure to register a new work with a licensing agency could prevent the rightsholder from claiming damages for infringement, but (a) how would that jibe with international IP agreements and (b) that sort of requirement couldn't be imposed on past works. So what is the solution for past works? Maybe, once registries are in place, a five-year period during which rightsholders can register their past works and no one may use them without agreement. Then, the new regime kicks in."

Yes, Save the Google Books Settlement -- From Itself

2009-09-30T10:36:00.000-07:00

Tim Wu, a Columbia University law professor, has written a piece for Slate headlined "Save the Google Book Search Deal!" See http://www.slate.com/id/2229391/?from=rss.

Wu decries the "movement afoot" to kill the deal, and takes it from there.

So, once more with feeling from this corner: Google may be salvageable, and all the responsible voices are saying so.

Wu writes that "the best analogy ... may be a public utility." That is correct. And public utilities need government regulation.

Wu says "let a modified settlement go forward, but let the court keep watch to make sure the deal achieves its public goals without undue private gain. This is the essence of the utility model ..."

I say let a deal go forward after, at a minimum, the terms of watchfulness get heavily front-loaded (among other necessary modifications). And whether that watchfulness is a judicial or a legislative function remains open.

That is the real essence of the utility model. The alternative is a recipe for yadda-yadda-yadda while the benefits get immediately privatized and the public interest becomes an afterthought.

'Google Books, Freelance Settlements Equally Stalled -- And Inextricably Intertwined' ... today at Beyond Chron

2009-09-29T04:51:00.000-07:00

"Google Books, Freelance Settlements Equally Stalled - and Inextricably Intertwined"

http://www.beyondchron.org/articles/Google_Books_Freelance_Settlements_Equally_Stalled_and_Inextricably_Intertwined_7394.html

*****

SEE ALSO:

"Reed Elsevier v. Muchnick Is About the Hijacking of Tasini v. Times"

http://freelancerights.blogspot.com/2009/09/reed-elsevier-v-muchnick-is-about.html

Freelance Rights Vault: My 2001 Essay on "The Post-Tasini World"

http://freelancerights.blogspot.com/2009/09/freelance-rights-vault-my-2001-essay-on_28.html

Freelance Rights Vault: My 2001 Essay on 'The Post-Tasini World'

2009-09-28T07:09:00.000-07:00

As the Supreme Court's October 7 oral argument approaches for Reed Elsevier v. Muchnick, we reprint my October 2001 essay, "Publish AND Perish: Confronting the Post-Tasini World," which was written for the librarians' journal The Charleston Advisor in the wake of the High Court's Tasini v. New York Times decision.

THE DEBATE OVER WRITERS’ RIGHTS in new technologies has specialized in hyperbole and reductios ad absurdum, so try this one. What if, in the wake of the 1974 Supreme Court ruling in U.S. v. Nixon, our embattled president had staged a White House lawn bonfire of the secret audiotapes implicating him in the Watergate scandals? How do you suppose The New York Times would have reacted?

In an arrogant display worthy of the other corporations and institutions the press is charged with holding accountable, the New York Times Company has been doing something similar to that in the months since the June decision by the Supreme Court in Tasini v. New York Times. The court confirmed that, absent agreement to the contrary, freelance writers and not their first-print publishers retain the rights to redistribute articles via digital media.

The Times’ next call was straight out of the scorched-earth playbook of Captain Willard of Apocalypse Now: It began purging its electronic archives of freelance works – making sure all the while that librarians knew that it was the fault of those pesky authors demanding to be paid a fair share of the revenues generated by for-profit products that had been launched without permission or consultation. By such innovative gambits, as well as by the old-fashioned blacklist – some writers who refuse to waive rights even retroactively have been told they will no longer get assignments – The Times is effectively telling the community of independent creators both to publish and to perish.

This despite the following words from the court:

"The Publishers’ warning that a ruling for the Authors will have ‘devastating’ consequences, punching gaping holes in the electronic record of history, is unavailing.... The Authors and Publishers may enter into an agreement allowing continued electronic reproduction of the Authors’ works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution.”

* * *

MUCH POST-TASINI V. TIMES commentary, following the pattern of that before the ruling, casts glazed-over eyes on the issue’s supposed technical complexity. A notable exception is Information Today columnist and Searcher editor Barbara Quint’s admirably clear essay, “Stop the Trash Trucks: A Tasini Case Damage-Control Proposal.” (That piece can be viewed at http://www.infotoday.com/newsbreaks/nb010716-1.htm.)

Equally direct, but in an almost willfully wrong-headed way, is the coverage of The New Republic’s legal affairs editor, George Washington University law professor Jeffrey Rosen. Snidely blasting both the justices and the National Writers Union (which supported the case and whose president, Jonathan Tasini, was lead plaintiff), Rosen swallows the publishers’ line that “expansive” copyright protections retard public access to information. Funny, but we never seem to hear that line when publishers are trying to forge coalitions with authors to screw consumers. Rosen fails to note that the American Library Association endorsed the writers’ position in Tasini. It’s one thing to assert a more enlightened or principled view on a subject than that of the organization most interested in it, and quite another not even to get around to mentioning the established view.

With thanks to The Charleston Advisor for inviting me into this forum, I’m here to say that the idea that this is all so complex is a crock. What was complicated, I submit, was designing and constructing marvelous new mechanisms for downloading old magazine and newspaper material – in the process burning secondary markets at the stroke of a key – all on the back of a national information infrastructure subsidized by taxpayers. The other part – reaching economic arrangements that work reasonably well for all impacted parties – requires no hardware, just the software of flexible negotiations on a level playing field.

I mean, you’d think our nation had never had the wherewithal to devise a public library system in the 19th century. Indeed, that’s what today’s debate is really all about. Like many other public and quasi-public resources, the historical record is going private even while its custodians make calculated gestures toward seeming more open. Freelance contributors to publishers of “collective works” didn’t invent this problem and we aren’t even part of it; the writers union, for example, has long advocated broader definitions of fair use and subsidies for libraries and low-income denizens of our increasingly two-tiered information society. But where money systematically changes hands, we do expect to participate in the transactions.

People of goodwill understand this. Three courts agreed that the plain language of the statute – the Copyright Act of 1976 – is not ambiguous. Nor is the legislative history behind it. Though at that time Congress couldn’t contemplate full-text databases, CD-ROM’s, and websites per se, a fair reading shows an awareness of emerging technologies and a conscious embrace of a “doctrine of divisibility,” whereby freelance writers, photographers, and graphic artists would maintain secondary rights to their works by default. Why? Because the promise of any technological revolution is double-edged. Surely, the personal computer and the Internet advance the democratic ideal. But just as surely, consolidating intellectual property rights in the hands of the AOL Time Warners of the new publishing landscape does not.

From 1994 to 1997 I was privileged to serve the National Writers Union as assistant director and director of licensing, during which time we launched an innovative marketplace solution, Publication Rights Clearinghouse. I left to become a copyright litigation consultant, in part because I was skeptical about whether Tasini v. Times would alone be a formidable enough hammer to pound home future negotiations. And our first case in federal court in California, Ryan v. CARL, did win summary judgment on interpretation of the operative passage, Section 201(c) of the Copyright Act – the same section that the New York district court judge in the Tasini case had perplexingly construed in favor of the publisher-defendants. By 1999, however, the Second Circuit Court of Appeals had reversed the Tasini ruling, rather more sweepingly than it had to, and this year the Supreme Court could hardly have affirmed more convincingly. Only Justices Stevens and Breyer dissented in a 7-to-2 vote.

Folks, when Ruth Bader Ginsburg and Antonin Scalia are on the same side, there’s a message, and the message isn’t that we lack an intelligent consensus on law and policy.

* * *

AS FOR THE QUAINT NOTION that information wants to be free … Have you looked lately at your bills from Lexis-Nexis, Dialog, and Gale Group? A half-dozen years ago, a school of digerati gurus mesmerized opinion-makers with value-added theory and other mumbo-jumbo pointing toward the withering away of copyright. Some of these savants, like Esther Dyson, have since been exposed as industry lackeys. Others, like John Perry Barlow, would have done better training their cyberlibertarianism exclusively on privacy matters. This fight was never about the death of intellectual property – an impossibility under capitalism. As in the early days of the railroads, when the slogan was “all the traffic can bear,” this was about resistance to a regime of “IP for me but not for thee.”

Even thinkers I otherwise admire, like Pam Samuelson, a University of California law professor and a MacArthur Fellow, sometimes fell for the cyberhype. Ryan v. CARL, a class action against the UnCover document delivery service, was filed in 1997. (The case settled last year for $7.25 million.) When the San Jose Mercury News asked Samuelson to comment, she said, “You run the risk of killing the goose that lays the golden egg.”

Well, excuse me, but the wreckage of Nasdaq is now filled with answers to the question, What golden goose? The most overlooked hygienic effect of Tasini may be that it prods electronic publishers of all sizes and shapes into business models grounded in a smidgen of reality. No less than Webvan or Pets.com, we all need to be thinking strategically about efficient, equitable, and viable ways to connect readers (“users”) with stuff (“content”). Pretending that it’s OK for publishers to steal from authors only delays the process of figuring out how to foot the bill for a vibrant and diverse culture.

In his prescient 1994 Times op-ed, “Infohighwaymen,” bestselling novelist (and writers union activist) Nicholson Baker cited the fears of magazines that “if they don’t go online somehow fast they will be left twirling twigs in the imminent hypertextual bouleversement.” He concluded, “This isn’t going to happen….”

* * *

I CLOSE WITH A NEWS flash: Feel free to copy and send this piece to whomever you wish. That’s the way I choose to spread my ideas and expression in this instance, and I won’t be Jeffrey Rosen’s or anyone else’s reductio ad absurdum. You see, copyright and its discontents are about more than dollars and cents. They’re also about common sense. In the tale of the 2-by-4 and the mule, the farmer used the first to beat some into the second. With the support of information professionals, let’s see if this recent round of authors’ litigation does the same to publishers.

Grimmelmann on 'Party Crashers'

2009-09-26T09:07:00.000-07:00

A blog reader points out that James Grimmelmann has "an even more interesting" post this morning about the Google Books settlement, headlined "Party Crashers." And he's right. See http://laboratorium.net/archive/2009/09/26/gbs_party_crashers.

Among other things, Grimmelmann meticulously breaks down the history of the involvement of the Authors Guild and its lawyer Michael Boni. Grimmelmann makes a point about this "plaintiff" that we made four years ago about the "associational plaintiffs" (including the selfsame Authors Guild) in the freelance case: it had no copyrighted works that were being infringed, and hence no standing to represent the class -- until a judge arbitrarily and capriciously decided that it did. Indeed, to the extent that the Guild has any interest at all, it's the bureaucratic one of maintaining good relations with the publishing industry in return for the resources and access it offers to members.

Like any academic or lawyer -- and especially like an academic lawyer -- Grimmelmann also gives us a lot of who-shot-John and lectures on procedure, some of it useful, some not.

I, personally, am not a know-it-all. Nor do I burst into tears every time someone tells me that what I'm trying to do is naive. I've been doing this stuff since 1994, when I was working in front of a computer with a 30-megabyte hard drive, a 2400 baud modem, and a dial-up connection. People said I couldn't find a big law firm to take on a class action for writers in 1997. People also said I couldn't get objections to In re Literary Works in Electronic Databases Copyright Litigation off the ground. Grimmelmann has a great educational conference scheduled, by the name of "D Is For Digitize." I have Reed Elsevier v. Muchnick, now before the Supreme Court. We're both leveraging our goals and interests from different angles.

Can a class action settlement, per se, create a royalty system? No. Can accumulated and well-managed class actions drive the policy outcome of a royalty system? Absolutely.

Grimmelmann is the naive one if he thinks the Department of Justice produced its impressive Google brief in a vacuum. There were more than 400 objections to the proposed settlement from around the world, and the attorney general and his people decided it was politic to file a "Statement of Interest" -- which, I must say, I find to be tremendously constructive overall.

On the subject of the uses and misuses of legal rigor, I always remember the brilliant example of A.J. De Bartolomeo, an associate at the San Francisco office of Robins Kaplan Miller & Ciresi when I was consulting for the firm on behalf of the plaintiffs in Ryan v. CARL, the first-ever class action copyright case on behalf of authors (and one of the twin inspirations, along with Tasini v. Times, for Reed Elsevier v. Muchnick).

In that role, I produced historical memos and recommendations filling more than a dozen loose-leaf notebooks. Some of them attached correspondence between publishers and writers, as well as detailed trade magazine articles about the electronic-database rights issues, dating back years, even decades.

In 2005, De Bartolomeo was now a partner in a San Francisco class-action factory that owned a piece of the action in the consolidated cases that became Reed Elsevier v. Muchnick. And in a declaration to the court in support of the settlement, De Bartolomeo blandly stated that there was "no" evidence of willfulness on the part of the infringers.

Just as there is "no" evidence of willful infringement by publishers, there is "every" chance that my letter to the attorney general can help move the ball down the field.

Dear Professor Grimmelmann: Let Me Buy You a Drink in the Nation's Capital

2009-09-26T06:32:00.000-07:00

The estimable James Grimmelmann of the New York Law School's Institute for Information Law and Policy has blogged his reactions to my letter to Attorney General Eric Holder.

In my letter, the full text of which can be viewed at http://muchnick.net/lettertodoj.pdf, I propose that the Justice Department -- whose devastating "Statement of Interest" sent the Google Books settlement architects back to the drawing board -- similarly use its muscle to help coordinate the Google settlement with the equally stalled, and inextricably intertwined, freelance journalists' settlement (Reed Elsevier v. Muchnick, which will be argued at the Supreme Court on October 7).

Grimmelmann's post is at http://laboratorium.net/archive/2009/09/24/gbs_lets_talk. I urge everyone to read it.

When I was alerted to this critique yesterday, I immediately tweeted: "Google settlement commentator-in-chief @grimmelm calls my letter to the AG 'interesting.' Well, that's a start!"

And that's still the way I feel. The Justice brief in Google (which, to my gratification, talked about a lot more than just antitrust) is obviously the single most important independent voice to date in nudging that deal toward a semblance of public-policy sanity. Grimmelmann may be the second most important. I say this not just because Grimmelmann has created "forums," online and elsewhere. A lot of so-called experts set up virtual gathering places and town-hall environments, and most of them don't add up to a hill of beans. My respect for Grimmelmann stems from my appreciation that he is way ahead of the other Google critics in understanding that the settlement there is on to something important, even as it badly misses the mark in its current form.

For a good, tight iteration of Grimmelmann's take on all this, I also encourage readers of this blog to check out his post at the site of Students for Free Culture: http://freeculture.org/blog/2009/09/25/gbs-and-students-grimmelmann-orphan-work/. An ultimate Google settlement "is likely to be an enormous net positive for readers," Grimmelmann concludes, "but this is no way to run a culture."

Finding a good way to run a culture is exactly what's behind my suggestion to the attorney general to make sure that the right hand of the Google settlement knows what the left hand of the freelance settlement is doing, and that something constructive is done about it.

In the same spirit, Professor Grimmelmann, I invite you to blow off the October 7 hearing on Google in district court in New York (where, we now know, nothing important, or certainly conclusive, is going to happen) and, instead, drop by the Supreme Court for Reed Elsevier v. Muchnick. There the justices will be talking about an unrelated technical issue -- jurisdiction of unregistered copyrights -- but in the course of things they just may have a thing or two to say about how their clear intent in Tasini v. New York Times (2001) has gotten hijacked by a publishing industry that was more interested in putting a boot to the neck of freelance writers than in obeying the law of the land.

If you show up in D.C., I'll buy you a drink afterwards, even though I'm broke, and I'll give you an autographed copy of my new book Chris & Nancy: The True Story of the Benoit Murder-Suicide and Pro Wrestling's Cocktail of Death. Who can resist an offer like that? (You won't find Chris & Nancy snippets at Google Books -- I've asked my publisher to hold off on letting them scan it for now.)

Do Freelance Writers Want a Little 'Moxie' -- Or a Lot of Moxie?

2009-09-25T09:21:00.000-07:00

The blog commenter who uses the handle "Moxie" has sent in a new one. He (or she) is sincere, if misguided, and his off-target point is important enough to highlight in its own post.

Moxie writes:

There is a huge problem with merging the two cases [Google Books and Freelance], in that a major portion of [Freelance] concerns past infringement of works written prior to 2001. There is no way a royalty system can address that.

Only a small portion of the settlement money was payment for future use. And, as we know, all writers (even those who wish to accept payment for past infringement) were able to opt out & seek payment (via a royalty system or any other method of their choosing) for future use.

I understand that, as a writer of current works, you have a strong personal interest in a royalty system that extends into the future. I can even accept that you think you are looking out for anonymous folks around the world who never heard of the settlement (to the deteriment of the thousands of us who did). What I don't understand is why you continue to think that there is any legal and/or financial power in an almost-obsolete group of works published many years ago.

Please continue to fight your battle with the big fish (Google) and let us small fish in the Copyright case get the settlement funds that, if not for you, we already would have had.

In rebuttal to Moxie, let me say, first, that a royalty system can indeed come to grips with the revenues for reuse of articles past, present, and future. The Supreme Court said as much in 2001. Reed Elsevier v. Muchnick is about getting back on track the clear intent of the highest court in the land (as well as the Congressional intent of the Copyright Act of 1976). I do not believe we should give up on it simply because a more powerful, more heavily lawyered party -- which, surprise!, just happens to be the infringers rather than the infringed -- figured out how to turn Tasini v. Times inside-out to its advantage, with the collusion of some sellout named plaintiffs in an illegally structured class action settlement.

Will royalty system negotiations be easy? No. There's the whole opt-out/opt-in thing. And there's the question of whether the courts can do such a thing by themselves anyway, without Congressional copyright reform and antitrust waivers.

But a lot of public resources went into the creation of the Internet, and publishers sure didn't find their decades of systematic and willful piracy "too complex" to pull off. The technology, including micro-transaction data, is there. What's lacking is the will -- plus some consensus understanding that what freelance writers have produced, do produce, and will continue to produce has real value.

A good start would be understanding by the writers themselves. Too many of them must have listened to their publishers, or their wives, tell them that they're worthless, and internalized that message.

On that topic, the gold standard remains, in many respects, Nicholson Baker's October 18, 1994, New York Times op-ed essay, which was headlined "Infohighwaymen." You can read it at http://muchnick.net/INFOHIGHWAYMEN.html.

I fell out of touch with Nick (who, of course, is a bestselling novelist) years ago and I do not represent that he agrees with me any more, across the board or even necessarily at all.

But in 1994 Nick Baker was one of the charter members and activists of "Operation Magazine Index," a campaign by the National Writers Union's San Francisco Bay Area Local, which was confronting electronic databases companies for ripping off our works. And he nailed it in this passage of his Times piece:

It’s interesting to speculate what the hit singles might be in this proposed arrangement [a royalty system loosely modeled after the music industry's ASCAP]. They wouldn’t necessarily be big cover stories in general interest magazines, since those already have a wide distribution.

Rather they might be obscure genealogical treatises, how-to tips for the beginning designer of flume rides or sell-your-satellite-dish-and-lease-it-back money-making schemes that appear in specialized periodicals with narrower newsstand penetration. Whoever the new database stars are, they deserve some dignified fraction of the money being charged for their prose.

Moxie seems sure that his own articles have little financial, let alone moral, value, and maybe he's right. But that view shouldn't bind the universe of freelancers unto eternity, at the very historical moment when new tech shows the potential for democratizing the publishing industry instead of only consolidating it.

Old reports in zoned editions of a newspaper on a small town's City Council meeting might have no ongoing market at all. Or they might have more of a market than you think. Digital archives profit on two premises. One is their integrity -- their comprehensiveness. On that basis they sell blanket subscriptions or online advertising, or simply give away content as a loss leader for brand-building in other fields.

The other for-profit premise, the one with which people are more familiar, is the per-download demand. That is only one part of the equation. And as Nicholson Baker noted, the long-term answers even there could surprise us.

Make no mistake: corporate reusers are either making money or planning to make money from our material. The only question is whether they get to keep all of it, then, now, and forevermore, as a perverse reward for having thumbed their noses at the Supreme Court; or whether they sit down and arrive at arrangements that are fair to everyone. Fair to the publishers themselves, of course, for the value added by their first-print publication. Fair to writers for the collectively steady, if individually sporadic, reuse of their works. And fair to a public that wants the information spigot turned on, with a level playing field of access and without price-gouging.

As is suggested by my letter to the attorney general -- which points out commonalities in both the principles and the logistics of the Google Books settlement and Reed Elsevier v. Muchnick -- the solutions will require imagination.

They will also require moxie. In the case of this particular blog reader, sadly, that's moxie with a small "m."

Muchnick Letter to Attorney General: Let’s Merge Google, Freelance Settlement Talks

2009-09-24T08:17:00.000-07:00

Irvin Muchnick – lead respondent in the freelance journalists’ class-action copyright case, Reed Elsevier v. Muchnick, which will be argued before the Supreme Court on October 7 – has proposed that the Justice Department coordinate settlement negotiations in both that case and the now-delayed Google Books settlement.

In a letter to Attorney General Eric Holder, Muchnick praises the government for intervening in the Google case. He says the respondent-objectors in the freelance case “are gratified that the Government’s Statement of Interest in Google went out of its way to offer cogent analysis” not only in the area of antitrust, but also in class action and copyright law. The letter spurred the parties to ask for a delay in the Google fairness hearing, which also had been scheduled for October 7 before District Court Judge Denny Chin.

Muchnick’s letter to Holder asserts that the freelance and Google cases “have striking and compelling similarities,” that the outcome of Reed Elsevier v. Muchnick will fundamentally affect a revised Google settlement, and that both judicial economy and public policy would be served by discussing the two cases as a package.

The government’s brief in Google, Muchnick goes on to say, “has put its finger on the central solution tying together both cases: the need for comprehensive, industry-wide royalty systems. In their current forms, the Freelance settlement has the comprehensiveness but not the royalty system; Google has the royalty system but not the comprehensiveness.” In its wake, Muchnick adds, “all stakeholders in the emerging copyright landscape should have their interests heard and incorporated. From a policy perspective, perhaps the most egregious lapse to date has been the disenfranchisement of librarians and information consumers in the rush to tailor litigation settlements. The resulting pastiche of proposed solutions is poorly integrated and has ill-served all parties.”

The full text of Muchnick’s letter can be viewed at http://muchnick.net/lettertodoj.pdf.

Google Books Fairness Hearing Almost Definitely Will Be Postponed

2009-09-22T12:14:00.000-07:00

In the non-surprise of the season, the parties in the Google Books settlement have filed a motion asking Judge Denny Chin to adjourn the October 7 fairness hearing. They have proposed a November 6 scheduling conference. Time to maneuver and incorporate the critiques of the Justice Department and others.

Plugola Central: CHRIS & NANCY Table of Contents And Complete Preview at Muchnick.net

2009-09-21T11:03:00.000-07:00

[cross-posted from http://wrestlingbabylon.wordpress.com]

Benoit Book Table of Contents

And Complete Preview at Muchnick.net

SEPTEMBER 21, 2009—Author Irvin Muchnick’s website has released the facsimile pages of the Table of Contents of the new book CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death.

This completes the preview of elements of CHRIS & NANCY, which will begin arriving in bookstores over the next several weeks. Here are all the online links:

TABLE OF CONTENTS

http://muchnick.net/benoitbooktoc.pdf

FOREWORD by Phil Mushnick (award-winning New York Post columnist; no relation to author Irvin Muchnick)

http://muchnick.net/benoitbookforeword.pdf

INTRODUCTION

http://muchnick.net/benoitbookintro.pdf

2-PAGE SAMPLE OF THE 16-PAGE COLOR PHOTO INSERT (low resolution version)

http://muchnick.net/benoitbookphotosamplelowres.pdf

2-PAGE SAMPLE OF THE 16-PAGE COLOR PHOTO INSERT (high resolution version – long download time)

http://muchnick.net/benoitbookphotosamplehighres.pdf

For complete pre-order information, including international links to Amazon.com, go to http://benoitbook.com.

To reserve an autographed copy of CHRIS & NANCY direct from the author, send $19.95 via PayPal to paypal@muchnick.net or via postal mail (U.S. funds only) to:

Benoit Book

P.O. Box 9629

Berkeley, CA 94709

All U.S. orders of autographed copies direct from the author are at the American retail price of $19.95, with free standard shipping to U.S. addresses. Prices for Canadian and other foreign orders will be published at a later date.

Irvin Muchnick is author of WRESTLING BABYLON: Piledriving Tales of Drugs, Sex, Death, and Scandal, and a widely published magazine journalist. He is lead respondent of the current landmark case for freelance writers’ rights, Reed Elsevier v. Muchnick, in which oral argument before the U.S. Supreme Court is set for October 7.

Media inquiries:

Irvin Muchnick

media@muchnick.net

Simon Ware

Publicity Director

ECW Press

416-694-3348

simon@ecwpress.com

Blog: http://wrestlingbabylon.wordpress.com

Twitter: http://twitter.com/irvmuch

YouTube: http://youtube.com/WrestlingBabylon

#####

‘Reed Elsevier v. Muchnick’ Is Related to Google -- But Not Because of Antitrust

2009-09-20T21:25:00.000-07:00

As noted in the previous post, the Justice Department really stepped up to the plate in its brief to Judge Denny Chin on the foundering Google Books settlement. The government’s lawyers produced a thorough overview of the deal’s problems in all three areas: antitrust, copyright, and class action law.

My one gentle correction would be that the brief’s reference to our Supreme Court case, Reed Elsevier v. Muchnick, did not pinpoint the most important links between the two cases, and drew attention to a not particularly relevant one.

The most important similarities are their sweeping scope, their dependence on a “license by default” mechanism for future rights, and their common named plaintiff: the Authors Guild.

The government’s brief focused here on something altogether different, the antitrust implications; and the citation of us was off-point. With accuracy, it was stated that the “risk of market foreclosure would be substantially ameliorated if the Proposed Settlement could be amended to provide some mechanism by which Google’s competitors could gain comparable access to orphan works.” Less clearly, the proposed settlement in the freelance case was said to be superior in the sense that "numerous companies beyond the named defendants [would be] allowed to obtain benefits of settlement."

First, the reason numerous companies would get the future benefits of the freelance settlement is that, unlike in the Google case, there is infringement not by a single company but a longstanding industry-wide problem – just about every major newspaper and magazine publisher and their electronic-database licensees have been stealing from writers, systematically and willfully, for decades.

Second, “numerous companies get the future benefits” because they are grabbing future rights without any ongoing compensation whatsoever. In this detail, the Google settlement is actually superior in that it at least calls for a royalty system, albeit not one inclusive enough or adequate.

There is much to be learned from combining the lessons of the doomed Google and freelance settlements. Both need to be opened up in different ways. As litigation, both need “opt in” rather than “opt out” provisions for absent class members.

Genuine ultimate solutions? True industry-wide negotiation with all stakeholders, concluding with royalty systems and compulsory licenses ratified by Congress, not the courts.

Oct. 7 Shapes Up As More Important for 'Reed Elsevier v. Muchnick' Than for Google Books

2009-09-20T03:43:00.001-07:00

"This Court should reject the Proposed Settlement in its current form and encourage the parties to continue negotiations to modify it so as to comply with Rule 23 and the copyright and antitrust laws."

With those words, the Department of Justice concluded a critique of the Google Books settlement that was a lot more comprehensive than has been reported. The government's antitrust division was expected to document serious concerns about that aspect of the
deal. However, I know of no one who reported in advance that DOJ's brief would be a three-pronged attack, also summarizing objections on grounds of copyright and Rule 23 (class action law).

I encourage everyone to read the document, which is viewable at http://muchnick.net/dojgooglebrief.pdf.

What happens next, of course, is up to Judge Denny Chin. But the Justice brief increases the speculation that the October 7 fairness hearing in Google will not be definitive. The government essentially reported that the settlement parties have talked with the attorney general's people in some depth and committed to going back to the drawing board. Whether these changes are spun as "tweaks" or a major overhaul is not important. What is important is that a bad settlement not achieve fast-track approval.

The Justice brief has references to Reed Elsevier v. Muchnick, which also has a hearing on October 7, at the Supreme Court. I will comment later on what those remarks mean and how, in my view, the two cases fit together.

Open Books Alliance Statement of Principles

2009-09-17T13:52:00.001-07:00

The Open Books Alliance statement of principles, I think, hits most of the right notes:

http://www.openbookalliance.org/2009/09/our-principles-for-the-mass-digitization-of-books-protecting-innovation-competition-and-the-public-interest/

'Reed Elsevier v. Muchnick Is About the Hijacking of Tasini v. Times' (full text)

2009-09-17T10:30:00.000-07:00

[originally published on September 14 at Beyond Chron, http://www.beyondchron.org/articles/_i_Reed_Elsevier_v_Muchnick_i_Is_About_the_Hijacking_of_i_Tasini_v_Times_i__7345.html]

Reed Elsevier v. Muchnick Is About the Hijacking of Tasini v. Times

by Irvin Muchnick

Editor’s note: Beyond Chron contributor Irvin Muchnick is the lead objector to the settlement of a major copyright class action. The case is now at the U.S. Supreme Court under the name Reed Elsevier v. Muchnick, and oral arguments are scheduled for October 7. Here is Muchnick’s preview.

Supreme Court cases turn on technicalities, but they also are driven by underlying policy narratives. Reed Elsevier v. Muchnick, the major freelance writers’ rights case of our era, is no exception. In addition to looking for the answer to the narrow question the justices accepted for review – “Does § 411(a) of the Copyright Act prevent federal jurisdiction for claims of unregistered copyrights?” – discerning observers will be paying close attention to how the justices get to their answer.

Don’t take it from me, but which way the Court rules matters a whole lot more to publishers than to writers and other independent creators.

If the justices decide, contrary to the Second Circuit Court of Appeals, that un-registereds can participate in court-sanctioned settlements, then this whole mess goes back to the lower court for review of the deal’s merits. Our attorney, Charles Chalmers, is well prepared to demonstrate to the Second Circuit that the class has been inadequately represented and the settlement’s “license by default” mechanism is illegal.

On the other hand, if the Justices decide that the courts should have no part of a settlement involving un-registereds, then this one is dead as a doornail, here and now. The registration conundrum is really the problem of those who have been stealing copyrighted material for decades: the print publishing corporations and their electronic-database partners. It is not the problem of the people they have been stealing from. The reason is that the holders of unregistered copyrights would remain potential holders of registered copyrights – they could always file their registration paperwork and sue later.

What is the history that has brought us to this pass? And what is the public-interest solution to the fair division between publishers and writers of revenues generated by the digital revolution?

In 1993, a group of freelance plaintiffs led by Jonathan Tasini, then president of the National Writers Union, sued the The New York Times and others over the illegal reuse, without the contributors’ permission or compensation, of their previously published newspaper and magazine articles on products such as LexisNexis. These practices, systematic and willful, violated the Copyright Act of 1976, which codified that a freelancer typically licensed to the first-print publisher only the right to print an article for the first time. Individual article delivery is not the same as republication of the entire collective work (an obvious example of the latter is microfilm).

In 1997, then-U.S. District Court Judge Sonia Sotomayor sided with the publishers. Two years later, the Second Circuit overturned Sotomayor. In 2001, the Supreme Court upheld the Second Circuit by a 7-2 vote, with liberal lioness Ruth Bader Ginsburg and arch-conservative Antonin Scalia both in the majority. (Sotomayor, now on the Supreme Court, has recused herself from Reed Elsevier v. Muchnick, perhaps because she participated in its procedural deliberations while on the Second Circuit.)

In her Tasini v. New York Times opinion, Ginsburg dismissed the publishers’ warning that a ruling adverse to them would have “devastating” consequences for the historical record. “The parties,” she wrote, “may enter into an agreement allowing continued electronic reproduction of the Authors’ works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution.”

In the immediate aftermath, as part of their campaign to shove all-rights contracts down the throats of almost all their freelance contributors – trumping the provisions of copyright law in their future practices – publishers promoted to librarians and information consumers a doomsday scenario in which all freelance articles might have to be expunged from databases, turning them into “Swiss cheese.” This line was malarkey. By stealth, publishers for years had been deleting from databases some works of some complaining writers – all without bothering to disclose to customers that the publishers were choosing degradation of their products over good-faith negotiation of new-tech revenue streams.

In 2000, anticipating the writers’ ultimate Tasini victory, several class actions were filed on behalf of freelancers. The Authors Guild (which has proven itself a classic “company union”) maneuvered to the helm of these consolidated cases, just as the Guild later would direct the equally controversial and more heavily covered Google Books settlement. (In a coincidence, the Google case has a fairness hearing in district court the same day as the Supreme Court hearing in the freelance case.) In the spring of 2005, other objectors and I intervened in the freelance case, leading us today to the steps of East Capitol and First Street NE.

Unless they’re stupid, the Google Books settlement parties are closely following our developments. In the opinion of many, both the Google and freelance cases abuse the class-action system and turn copyright law on its head by giving away to the infringers future rights of all writers who do not affirmatively opt out. Indeed, two of the partners of the settlement to which we are objecting – the National Writers Union and the American Society of Journalists and Authors – have turned around and formally objected to the Authors Guild’s Google settlement by using some of our exact arguments.

I believe that for book authors and freelance journalists alike – as well as for photographers, graphic artists, and videographers – the inexorable answer is a fully and fairly conceived royalty system. Such a system would include “compulsory licenses” freeing information consumers of the burden of chasing down rights holders. But, as Register of Copyrights Marybeth Peters noted in Congressional testimony last week, comprehensive royalty systems cannot be schemed for the private benefit of litigation parties and their lawyers, as the Google parties are trying. Like the public library system of the 19th and 20th centuries, they must emerge from larger negotiations guided by common-sense copyright reform and antitrust waivers at the direction of Congress.

The delicate interplay between narrow legal question and broad policy comes into play in the Supreme Court appeal via a deceptively complex issue: whether the federal courts are restricted from conferring “subject matter jurisdiction” over the claims of unregistered copyrights. The need to include un-registereds in order to give a final deal true closure is the one thing on which both the settlement parties (the defendants plus the plaintiffs) and we objectors agree. This matter is at the High Court only because of a monkey wrench in the form of a sua sponte (spontaneous and unprompted) ruling by the Second Circuit.

Because none of the parties directly involved in the case is defending the Second Circuit’s position (and even the solicitor general, who argues the government’s interests before the Supreme Court, has weighed in against it), the justices appointed an amicus curiae, or “friend of the court,” to argue on behalf of the lower court. Intriguingly, amicus Deborah Merritt, an Ohio State University law professor, is a former clerk for Justice Ginsburg. Merritt’s brief is effective – so, effective, in my view, that it raises the possibility that Ginsburg and her brethren have a larger agenda. Ginsburg’s Tasini opinion had clearly signaled a royalty system as the real-world solution. And I think the settlement proposed in the freelance case just as clearly perverts that intention – enriching the Tasini-losing publishers at the expense of the winning writers. Could the Supreme Court be reaching for the technical means to rectify that injustice?

If so, the objectors (represented by Chalmers with the support of the Stanford Law School Supreme Court Litigation Clinic, directed by Pamela Karlan and Jeffrey Fisher) have shown the justices a way. We point out that even if the courts do not have original jurisdiction over unregistered claims, a provision known as “supplemental jurisdiction” would make it appropriate to remand the matter to the Second Circuit for consideration of aspects of the settlement’s merits – before jurisdiction is even fully addressed.

Again, this is all speculation on the part of someone with a direct interest in a particular outcome. But whatever the specifics of the ultimate decision in Reed Elsevier v. Muchnick, the justices should do something to stop the hijacking of Tasini and hasten the arrival of a royalty system. That will be good for writers, less confusing for the public, and the fulfillment of the promise of new technologies to make our culture more accessible, diverse, and vibrant.

Irvin Muchnick’s Chris & Nancy: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death will be published in October by ECW Press. Pre-order information is at benoitbook.com. He blogs at http://freelancerights.blogspot.com and tweets at http://twitter.com/irvmuch.

Zoe Lofgren Backs Google -- Wow, What a Surprise

2009-09-17T08:56:00.000-07:00

As Andrew Albanese notes in his excellent summary of Google Books comments for Publishers Weekly, "Rep. Zoe Lofgren, a Democrat who represents Silicon Valley, suggested that Congress should stay away. 'At this point, we don’t have a role to play,' she said, adding that the settlement was 'the private sector achieving what we failed to achieve' in terms of legislation."

Eric Schmidt, the CEO of Google, is a major Lofgren campaign contributor (most recently, $2,000 on October 8, 2008).

"What we failed to achieve" at the legislative level -- indeed.

Google Books Resolution Should Await 'Reed Elsevier v. Muchnick' Supreme Court Ruling

2009-09-17T08:14:00.000-07:00

According to reports, Google is in discreet talks with the Justice Department to "tweak" the Google Books settllement, which is under fire on antitrust and other grounds. U.S. District Court Judge Denny Chin has received 400 submissions from objectors, opt-outers, and other commenters, and is said to be thinking about how to limit speakers at the scheduled October 7 fairness hearing.

Also on October 7, the Supreme Court will be hearing oral arguments in Reed Elsevier v. Muchnick.

The two cases are inextricably linked. Most pointedly, both involve the proposed use of a class action settlement to impose "compulsory licenses" on absent class members who do not affirmatively opt out. As new-tech legal expert and McArthur Fellow Pamela Samuelson, among others, has observed, this would be a breathtaking and unilateral change of law.

For Judge Chin to try to tie up Google Books in a neat bow on or shortly after October 7 would be a travesty of due process. The obvious interim solution would be to stay that case pending the Supreme Court decision in Reed Elsevier v. Muchnick. As I have said repeatedly, the underlying issue of our case -- which involves resolution of the illegal reuse on electronic databases of the works of freelance journalists -- is the way publishers have attempted to hijack the clear ruling and intent of the High Court in Tasini v. New York Times.

I also said, as long ago as this spring, that the Google Books deal had "bombed in New Haven" -- a reference to the pre-Broadway closing of a play that drew bad notices and attendance in previews. And you can't overhaul a bad script, score, and cast overnight.

Compulsory Licenses And Royalty Systems Are Congressional Matters

2009-09-17T08:04:00.000-07:00

Peter Jaszi, director of the Glushko-Samuelson Intellectual Property Clinic at American University Washington College of Law, has published a blog post, headlined "Reframing Google Books," in response to Register of Copyrights Marybeth Peters' Congressional testimony last week. See http://chaucer.umuc.edu/blogcip/collectanea/2009/09/reframing_google_books.html.

Here is the text of my email to Jaszi:

Professor Jaszi:

Your otherwise well-articulated counterpoint to Register of Copyrights Peters' Congressional testimony uses sharp and misleading rhetoric on the subject of compulsory licenses. Everything you say about the advantages of such licenses is true -- but the implication that Peters and other Google Books settlement critics oppose them is not. In my opinion, you have skirted the heart of the matter, which is the questionable legality and appropriateness of promulgating compulsory licenses by private litigation rather than by public legislation. As the lead respondent in the current Supreme Court case Reed Elsevier v. Muchnick, which involves similar issues, I have long advocated compulsory licenses -- reached by fully and fairly negotiated royalty systems -- as a solution to both making information accessible and allocating new-tech revenue streams.

Irvin Muchnick

Supreme Court's 'Muchnick' Case Is About the Hijacking of 'Tasini'

2009-09-14T08:04:00.001-07:00

Reed Elsevier v. Muchnick
Is About the Hijacking
of Tasini v. Times

by Irvin Muchnick

More Supreme Court Briefs

2009-09-13T20:21:00.000-07:00

Deborah Jones Merritt, the amicus appointed by the Supreme Court to defend the Second Circuit's ruling in Reed Elsevier v. Muchnick, filed her brief last month. It is viewable at http://muchnick.net/amicusfor2dcir.pdf.

The Muchnick Respondents filed a supplemental brief last Friday. See http://muchnick.net/scotussupplemental.pdf.

I have a preview of the October 7 oral arguments running shortly in Beyond Chron, and as usual will post here the link and then the full text of that piece.

Register of Copyrights Attacks Google Settlement

2009-09-10T10:34:00.000-07:00

Marybeth Peters, the Register of Copyrights -- a position in the Library of Congress -- has moved boldly forward in her criticism of the Google Books settlement. In previous public statements Peters had raised questions, but in testimony this morning before a House Judiciary subcommittee, she called the deal "fundamentally at odds with the law."

The report by Publishers Weekly's Andrew Albanese is up:

U.S. Register of Copyrights Slams Google Book Search Settlement

http://www.publishersweekly.com/article/CA6695829.html?nid=2286&rid=##CustomerId##&source=link

NWU, ASJA Make Our Argument in Google Objections

2009-09-09T07:09:00.000-07:00

Yesterday was the filing deadline for objection briefs in the Google Books settlement. Several blog readers have pointed out not only that the National Writers Union and the American Society of Journalists and Authors formally objected, as expected, but also that NWU and ASJA use one of the exact arguments of us objectors in the freelance case: that the "license-by-default" device for absent class members is illegal.

ASJA filed a brief in Google on behalf of itself and 57 authors, led by Harold Bloom. NWU joined as an amicus. "[A]fter approval," they argue sensibly, "Rightsholders will be deemed to have granted a license by virtue of doing nothing." Later they title one of the sections of the brief "The Forced-License Model in the Proposed Settlement Turns Copyright Law on Its Head."

Of course, this is what we have been saying for more than four years in the freelance journalists' case, now known at the Supreme Court as Reed Elsevier v. Muchnick. (The justices will hear oral arguments on October 7 -- the same day as the fairness hearing for the Google settlement in district court in New York, unless Judge Denny Chin shuffles the schedule again.) And ASJA and NWU, which have broken ranks with lead sellout Authors Guild in Google, are co-associational plaintiffs in the freelance case, defending the same untenable licensing structure they have just demolished.

Instant Analysis of Sotomayor Recusal: No Big Deal

2009-09-04T11:42:00.000-07:00

As noted in the previous post, Justice Sonia Sotomayor has recused herself from consideration of Reed Elsevier v. Muchnick. So far as I can immediately tell, it is not a big deal.

It's true that, with eight justices now voting instead of nine, there is the chance of a 4-4 tie -- and a tie would go in favor of upholding the Second Circuit of Appeals ruling now on appeal. But that is a mere function of the change from an odd to an even number. Sotomayor was part of the Second Circuit before her elevation to the Supreme Court, so there is at least an equal measure of speculation that she was inclined to rule in favor of her former court and against the petitioners and respondents arguing against it.

And that's about all I have to say on the Sotomayor recusal.

Justice Sotomayor Recuses Herself from 'Reed Elsevier v. Muchnick'

2009-09-04T10:28:00.000-07:00

The report on the SCOTUS Blog:

http://www.scotusblog.com/wp/eight-judge-court-for-copyright-case/#more-10585

Anita Bartholomew on Tomorrow's Google Books Opt-Out Deadline

2009-09-03T08:34:00.000-07:00

Before tomorrow’s opt-out deadline: What you need to know about the Google settlement

http://editorialconsultant.wordpress.com/2009/09/03/before-tomorrows-opt-out-deadline-what-you-need-to-know-about-the-google-settlement/