The case derived from the Tasini lawsuit (New York Times Co., Inc., et al. v. Tasini et al.) has been variously called The Copyright Class Action and In Re Literary Works in Electronic Databases Copyright Litigation (MDL No. 1379). It has been the subject of several ITI NewsBreaks, most recently on April 13, 2005, after the initial settlement was reached (http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=16234). There is a Web site (http://www.copyrightclassaction.com) by the defendants and a blog about it by objector Irvin Muchnick (http://www.freelancerights.blogspot.com)—each with a different perspective. Compare them with the several writers' organizations involved, such as the National Writers Union (http://www.nwu.org), American Society of Journalists and Authors (http://www.asja.org), and The Authors Guild (http://www.authorsguild.org), which have old information on their sites about the case. As of Friday, Oct. 7, 2005, none of the organizations or the copyright class action Web site have a press release or any mention of the final approval of the settlement by the court on Sept. 30!
Actually, none of the associations have even informed their members that the deadline to file has been extended 30 days for those freelance writers affected by the hurricanes, although NWU was able to confirm it by phone. I hope members affected by the hurricanes know to call the associations to ask, because the Web sites aren't telling them.
Muchnick says that this settlement will be appealed. I agree. Freelance authors, if they received word about making their claims at all, were apparently put off by the legal language and the complicated instructions. They didn't understand that, under the terms of the settlement, they were out of luck if they failed to opt out by Sept. 12 or make a claim by Sept. 30, 2005. If they were members of the lead plaintiff organizations and relied upon their Web sites, they were let down.
Going beyond the questionable notice measures taken, the issues are too important not to appeal: copyright issues, creator's rights, publishers' and database vendors' responsibilities—and, of course, money.
So who's who? The plaintiffs are freelance authors, and the association plaintiffs are the NWU, ASJA, and The Authors Guild. The defendants are databases vendors, such as Reed Elsevier (LexisNexis), The Thomson Corp. (Dialog, Gale Group, and West Group), publishers, and other defendants who have joined or been brought in, such as Amazon.com and HighBeam Research. The objectors are Muchnick, creator of the freelancerights.blogspot.com, and some other authors. (Muchnick was out of the country and thus unavailable for comment when this NewsBreak was written.) Muchnick has stated that the judge "is wrong and we are confident the Second Circuit Court of Appeals will agree with us."
According to Muchnick's previous statements, the following (taken from a brief filed Sept. 23) are "examples of objections the class members will, and do, make":
1. The damage analysis stops with data for 2001. Thus the settlement does not take into account the defendants' royalties and revenues for 2002 to 2005.
2. There is no time value of money component included in the damage analysis. Copyright law allows recovery of interest.
3. There is no consideration of the right of a portion of the class to recover statutory damages in the damage analysis upon which the settlement is based.
4. There is no justification presented for the category amounts. While the presentation argues that there is no justification for amounts actually provided for the different Categories. So far as the final presentation shows, these amounts are arbitrary.
5. The damage study reveals that it is substantially, if not totally based on information volunteered by defendants, through their counsel. Some information, such as defendant revenues, is estimated by the expert when it should have been obtained by discovery.
And the objectors also specified eight reasons for new discovery, necessitating at least a delay of the final approval of the settlement.
In even stronger language, Edward Hasbrouck penned "Lies from ‘my' lawyers" on his blog (http://www.hasbrouck.org/blog/archives/000812.html#more):
On the eve of the court hearing scheduled for this coming Tuesday to decide whether to approve a proposed settlement giving the New York Times and its co-defendant copyright infringers future rights in perpetuity to sell, license, and sublicense the electronic rights to freelance articles that they've been stealing for years, the Times this past Monday began charging new fees (a US$50 monthly subscription fee and/or a per-article fee, none of which goes to the authors) for online access to articles (including those to which the Times has never paid for, nor acquired, the electronic rights).
The Times has been gearing up for this for months. So it's odd that they launched the new subscription fee and services now, rather than waiting a week for the settlement granting them rights to be approved. But their greed is, apparently, impatient. Clearly this is their attempt to monetize, as quickly as possible and without even waiting to get the settlement approved, the value of the settlement's grant of future electronic rights to freelance work.
Hasbrouck points out, incredulously, that: "[T]he Times and its co-defendants in the copyright class action lawsuit are proposing a settlement that values rights in perpetuity to the freelance portion of the Times archives, and those of tens of thousands of other publishers, and the entirety of over 100,0000 [sic] books included in Amazon.com's "Search Inside the Book," at US$10-18 million? Given the value they place on electronic rights, I assume the reason the Times didn't start charging for electronic access sooner is that they didn't want to call attention—while the settlement negotiations were going on, and while authors still had the opportunity to demand more in the settlement, or to opt out of the settlement—to how much more valuable the rights they are getting will be to them than the amount they will pay in the settlement."
In the end, Hasbrouck sums up: "The settlement sucks, and the lawyers who purport to represent writers are lying to the Federal Court hearing the case, to try to justify the sell-out."
We have not seen the last of this lawsuit. Stay tuned for the imminent appeal.