CRASS ACTION
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BY 1997 THERE WAS ONLY one thing wrong with Publication Rights Clearinghouse: it wasn’t working. We had
enrollees – more than 1,000 writers from outside as well as inside the union. Unfortunately we also had competition
from the Authors Registry, a copycat venture of the union’s friends at the Authors Guild and the American Society of
Journalists and Authors. You’d have to be an even bigger nerd than me to want to untangle all the petty rivalries of
the various alphabet-soup writers’ organizations. Let it suffice to say that the existence of both PRC and the Registry
sowed confusion.

To make matters worse, the PRC-UnCover relationship was going nowhere fast. The monthly royalty checks
amounted to a trickle, not a torrent. I’d struck up a friendship with Ward Shaw and Becky Lenzini, who on one trip
through town treated my wife and me to dinner at Chez Panisse (downstairs!). But when the writers union pressed for
the substantive expansion of our royalty system into products other than UnCover, Ward and Becky opted, instead,
to play footsies with me over a job opportunity. When we sought a “dialogue with Dialog,” Knight Ridder Information
did what every other potential second licensee did – it played us off against the Authors Registry.

The biggest obstacle to PRC’s progress, however, was the twin shadow of Tasini and Tasini. Originally, Jonathan
was not one of PRC’s biggest fans. In my view, he was foolishly threatened by the possibility that our organizing
success and our fledgling agency would steal some of the thunder from his lawsuit, when in fact they all reinforced
each other. But as the suit stalled in court for years, Jonathan came to embrace PRC enthusiastically. Too
enthusiastically, I thought. Writers, preoccupied with immediate issues like what they were being paid for primary
rights, mostly stood on the sidelines scratching their heads over what they saw as technical mumbo-jumbo. PRC
hype was veering dangerously close to what is known as “vaporware,” and everyone involved in e-rights was waiting
to see what the courts would say in Tasini.

Jonathan and I were switching positions. Just as he had at first praised PRC publicly but denigrated it privately, I felt
deep down that Tasini v. Times was a pig in a poke. Instead of surgically using investigative resources to establish
an open-and-shut record of willful infringement, Jonathan opted for a “kitchen sink” approach to naming defendants.
Causes of action were defined in the broadest and most theoretical terms; rather than driving a strategic wedge
between print and electronic publishers, Tasini joined them – and their return legal firepower – at the hip and played
to the grandstands. All of our litigation eggs were in a single basket. And we were being represented by a labor
lawyer with a small office, Emily Bass, up alone against the New York Times Company’s outside counsel, Debevoise
& Plimpton. That was like sending my ear into the ring for 15 rounds against Mike Tyson.

Above all I was puzzled by the failure to structure Tasini v. Times as a class action; Emily Bass was working on behalf
of only Jonathan and his handful of co-plaintiffs, not the thousands of similarly-situated writers. Class action, a staple
of product liability, securities fraud, and racial and sexual discrimination cases, had never been used in an American
court in a copyright case, but that didn’t mean it couldn’t be. Indeed, I thought the distribution of potential damages –
pennies in individual instances, millions in the aggregate – cried out for this technique. Moreover, class action held
the promise of enticing a large and powerful law firm to handle the matter on contingency in return for the opportunity
to score huge at the back end. All you had to do was get out there and hustle to find one. It was a vacuum waiting to
be filled, and UnCover, which was no longer executing our agreement in good faith, was a ripe target.

* * *

I CALLED AN OLD COLLEGE buddy from New Jersey, David Brooks. “Dave,” I said in one breath, “I want to test-
market something. I need you to front for a mail campaign in which a dozen well-known authors and authors’ estates
are asked if they’re interested in participating in a class-action copyright suit. You’ll sign the letters and they’ll get pre-
printed postcards for return to your home address and I don’t think there’s a problem with any of this though I
suppose there’s a small chance it could land you in jail.”

Dave, bless his heart, took about half a second to reply, “Make sure you have stamps on all the envelopes and
postcards and show me where to sign.”

The mailing got a good response. Well, Camille Paglia’s assistant did scrawl on her postcard that we should stick our
solicitations where the sun don’t shine. Another respondent, the literary executor for the late Nobel Prize-winning
poet Joseph Brodsky, left a string of messages on Dave’s answering machine pleading for more details. I coolly
instructed Dave that we weren’t animal-rights activists – guinea pigs didn’t get return calls.

Discreetly, I shopped the UnCover case to my contacts in the Bay Area legal community. No one was biting. My friend
Karl Olson, for example, was leaving Cooper, White & Cooper for his own start-up (now Levy, Ram, Olson & Rossi).
“The case is worthy,” Karl said. “But after the defendants’ law firm is finished denuding the Amazonian forest and
conducting on-the-job training for $100,000 first-year associates, is it a good business proposition?”

Thanks to Terry Francke of the California First Amendment Coalition in Sacramento, I got lucky. On Terry’s referral I
was called by a sole practitioner, Dan Reidy, who had an office near San Francisco’s South Park. Dan represented
clients in the restaurant, broadcasting, and music industries, and he was eager for a bust-out copyright case. He was
uniquely clear on the concept, picking my brain with interest and reciprocating the education.

Knowing he couldn’t finance such an expensive case himself, Dan arranged meetings with John Shuff, the managing
partner of the San Francisco office of the Minneapolis-based Robins, Kaplan, Miller & Ciresi. Dan had been working
on some matters with Robins, Kaplan through one of its associates, A.J. De Bartolomeo, who had been a classmate
of Dan’s at the University of San Francisco Law School. Robins, Kaplan’s extensive class- and mass-action
experience included cases involving the disastrous chemical plant fire in Bhopal, India, and the defective Dalkon
Shield intrauterine device, and most famously, litigation against the tobacco industry on behalf of the state of
Minnesota and Blue Cross, for which the firm pocketed fees of more than half a billion dollars.

Robins, Kaplan offered me a consultant agreement and I resigned from the writers union. I quickly hooked up the
attorneys with five plaintiffs who were being infringed by UnCover: Joan Ryan, San Francisco Chronicle columnist
and book author (based on an article she’d written years earlier for Women’s Sports and Fitness magazine); Arlie
Russell Hochschild, University of California sociologist (based on an excerpt of her book The Time Bind, which had
run in The Nation); Jim Tunney, former National Football League referee (based on an excerpt of his book Impartial
Judgment, which had run in Referee magazine); and Lyn Hejinian and Ron Silliman (poets and two of the co-authors
of a book, Leningrad, which was excerpted in Socialist Review).

On October 22, 1997, Dan Reidy and I wedged into my ’86 Toyota Tercel for a drive to the Philip Burton Federal
Building in San Francisco, where Dan filed the first papers for Ryan v. CARL.

* * *

A LAY EXPERT FACES A couple of fundamental laws of human physics when he works with attorneys armed to
translate his information and knowledge into results. I call the first law the Duck Dodgers Dilemma – named for the
Warner Brothers animated short, Duck Dodgers in the 24-1/2 Century. In that Chuck Jones classic, Daffy Duck’s
assistant, Porky Pig, is the first to recognize the easiest path to Planet X – you just follow Planets A, B, C et al. until
you get to X. “Why, that’th the thtupidetht idea I ever heard!” Daffy splutters before a light bulb goes off in his head
and he regurgitates the exact same solution – all the while, of course, claiming personal credit for it. “How do I think
of these things?” Daffy muses imperiously. Porky replies, “I-I-I-I-I don’t know, boss.”

And so it is in the hierarchy of a legal team, where all good ideas are equal but some are more equal than others. I
lived and breathed digital text piracy and formulated the theories and investigative practices for combating it in
painstaking memos and hands-on demonstrations. Most of my time as a consultant was spent restating what for me
were commonplaces. The unfocused Esquires sensed that I was onto something but didn’t quite get it and,
moreover, preferred to cover their lack of comprehension in mystification and power-tripping. At a typical strategy
meeting, lead counsel John Shuff would snap at me whenever I tried to contribute anything more substantial than
someone’s phone number. While the group sat around reviewing how UnCover didn’t have a leg to stand on and
why, Shuff noodled on a notepad. A short while later he interrupted us to display his graphic illustrating Section 201
(c)’s unbundling of the divisible secondary rights to contributions to collective works. Eureka!

At $50 an hour such nonsense beat listening to writers union conventions prattle on about uniting the workers of the
world behind resistance to kill-fee clauses. Though no intellectual, and for my taste an overly baroque strategist,
Shuff was a superb trial lawyer. His indispensable role (aside from signing off on my bills) was to parachute in for
court hearings at which he distilled the plaintiffs’ best arguments and calibrated his debating temperament to the
style of the judge, who in our case was Reagan appointee Fern M. Smith.

Judge Smith started every hearing with off-the-cuff observations from her painfully cursory first reading of the briefs.
Having a Republican judge wasn’t in and of itself terrible – after all, we were talking about intellectual property rights
– but for some reason this one didn’t like our case. In the courtroom one saw hints of undue deference to the
defendants’ lead counsel, Michael Traynor of Cooley Godward, the son of a late California Supreme Court justice.
She granted summary judgment for us on the key issue, interpretation of the relevant section of the Copyright Act,
but reading the opinion you could just see her holding her nose. At different times the judge blew off our preliminary
injunction and temporary restraining order motions, in which we proved, first, that the plaintiffs’ articles were still
available for delivery by UnCover despite having been putatively “blocked” and, second, that UnCover routinely
stored every article it ever delivered on a master disk despite explicit representations to the contrary.

“Where’s the harm?” Her Honor kept asking, as if this was about her personal assessment of how to balance the
“equities,” when the law clearly stated that a finding of infringement drove a presumption of “irreparable harm,” the
threshold for injunctive relief. Later, when the defendants got the Ninth Circuit Court of Appeals to hear an appeal of
the summary judgment ruling, Judge Smith seemed all too eager to grant a stay of the proceedings pending the
appeal.
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