Last Wednesday, at the Ceremonial Courtroom of the Second Circuit Court of Appeals in Lower Manhattan, the latest chapter played out in one of those important stories, involving the economic interests of major media companies, that you never seem to read or hear about.
This was the oral argument hearing in an appeal by a group of freelance writers, led by myself. We’re objecting to the approval two years ago, in U.S. District Court in New York, of a massively comprehensive settlement of a set of class action cases. The consolidated case bundled claims that just about every newspaper and magazine publisher in the land, along with their electronic database company partners and licensees, had been blatantly and systematically infringing freelancers’ copyrighted works for, oh, the last 20 years or so.
For their trouble, the writers were to receive, after the subtraction of attorneys’ fees and claims administration costs, a grand total of less than $12 million, divvied up in a multi-tiered claim structure with awards as low as $5. In return, class members would grant rights in perpetuity to the defendant publisher-infringers to reuse not only those articles with directly settled claims, but also the works of the tens or hundreds of thousands of other writers around the world who either didn’t get wind of the settlement or didn’t bother to study the settlement’s dense legalese and to complete its burdensome claims paperwork.
In short, it’s an unprecedented sellout both of independent creators and of the public -- one enabled, no less, by the brain surgeons at the Authors Guild, the American Society of Journalists and Authors, and the National Writers Union (where I served as assistant director from 1994 to 1997), the so-called “associational plaintiffs.”
If the Second Circuit, in the coming months; rules favorably on our appeal -- throwing out the settlement or sending it back to the district court -- I don’t advise straining your eyes in search of in-depth coverage in The New York Times.
The fundamental issue of the case is the repackaging of old journalism in new products: LexisNexis, Dialog, searchable website archives, FindArticles, HighBeam, and others. Appropriating the mantle of public librarians, the for-profit enterprises that built these products say that they are merely facilitating access to information in the brave new digital world. They add that they were shocked, when their actions were held to be illegal in a 2001 Supreme Court decision, Tasini v. Times. By a 7-to-2 majority (including both Antonin Scalia and Ruth Bader Ginsburg), the court held that the remarketing of individual articles was nothing like, say, microfilm preservation of entire back issues of newspapers and magazines, and that the Copyright Act of 1976 could in no way, shape, or form be construed to the contrary.
Half accurately, publishers also say that this problem is prospectively moot because, in the interim, their lawyers drafted new contract language, which has been shoved down the throats of almost all freelancers, trumping the defaults of copyright law that entitle authors to a fair share of the future secondary-rights revenues derived from the exploitation of their works.
These are scoundrels’ arguments and you shouldn’t buy them for a second. (While you’re at it, be sure to reserve a special suite in purgatory for Ken Burns, the foundation-pandering middlebrow PBS documentary maker who took the side of corporate publishers on the essential question of whether new technology should be used simply to consolidate their power and profits, or to intelligently redistribute them. Throw in some more reservations for literary luminaries like E.L. Doctorow; either clueless or corrupt, Doctorow lent his imprimatur to the authors’ organizations as a “named plaintiff,” and refused to do the right thing even after being handed chapter-and-verse evidence of how those groups were manipulated by their lawyers into throwing away their members’ leverage and accepting an atrocious deal.)
As anyone who has read my article “Crass Action: Confessions of an Internet Avenger” (http://crassaction.muchnick. net) or my ongoing blog Freelance Rights (http://freelancerights.blogspot.com) knows, I don’t regard as easy the technical questions of how best to open up newspaper and magazine archives to the masses via the marvelous new tools of the Internet. But I do know one thing: the parties ultimately on the side of consumers and citizens -- the ones fighting against price-gouging, the exacerbation of a two-tiered information society, and the doctoring of history -- aren’t the guys at Reed Elsevier, owner of LexisNexis. That company’s outside counsel is playing point for the defense group as it tries to prop up this shaky edifice of a settlement, and developments during our objections and appeal demonstrate that they’re not above airbrushing the very record of this case in their efforts to pull a fast one on the courts and the public.
In any event -- and for the benefit of those of you who are wondering if I’m averse to compromise -- a ready technical solution exists in the form of a reasonable mechanism to collect and disperse royalties to creators. They’ve been doing precisely that in the music industry for decades, since shortly after the advent of recording equipment, via ASCAP. Noting the commissar-like overkill of today’s ASCAP regime, the lack of marketplace power and cultural capital of freelance journalists in comparison with hit music composers, and the priority of maxing out on the democratizing potential of the cyberspace revolution, I believe the writers’ version of ASCAP should be kinder, gentler, and more flexible.
But trust me, the multinational media corporations that are just now learning how to flex their muscle on the web ain’t interested in kinder and gentler. They’re interested in all the traffic will bear. Otherwise they’d be putting resources into good-faith negotiated solutions instead of into creating ever-more-audacious new infringing facts on the ground, even as they devise ways to run out the clock on their slam-dunk liabilities. An honest back-of-the-envelope calculation of damages runs into the hundreds of millions, if not billions, of dollars.
The appellants’ attorney, Charles Chalmers, operates alone out of a tiny office in West Marin. For executing a brilliant legal assault on this and other outrages of the class-action system -- and because no good deed goes unpunished -- Chalmers has been vilified as a “professional objector.” In fact, he’s an ex-corporate law firm practitioner who has dedicated the last years of his career to correcting what no objective observer could deny has become a serious warp in American litigation. Chalmers’ business model is as straight-shooting as it is unsentimental: If he improves a settlement, he applies to the court for his fees (often jousting in the process with the original plaintiffs’ counsel who have overbilled for shoddy work); if he loses, he loses.
Even as I type, I can hear the bleats of protest from the self-styled good guys ricocheting through the ether. Bleat away. These are people who don’t understand; who think it’s better to be a professional doormat than a beneficial objector.