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May 2, 2018
There is, literally, a new generation of my readers since 2005, when attorney Charles Chalmers and I launched the objections to the settlement in In re Literary Works in Electronic Databases Copyright Litigation, a.k.a. “Freelance.” Later in the week I’ll be publishing a comprehensive historical retrospective and links. Of course, that history includes the 2010 U.S. Supreme Court decision Reed Elsevier v. Muchnick.
Below is my full statement yesterday to Andrew Albanese of Publishers Weekly, which is partially quoted in the article linked above. Albanese and PW’s coverage of this case over the years has been thorough and supportive — uniquely so.
– Muchnick
*****
As a technical matter, the Freelance case is officially over and done. Period, end of paragraph. The checks are in the mail at last. The revised settlement had been approved in July 2014. The nearly four-year gap in between then and today’s fulfillment of claims has nothing to do with the objectors; it is just life in the end game of complex litigation.
Of course, the objectors do claim their role, and proudly so, in blocking the original 2005 settlement. We succeeded in getting proper representation for the super-majority of the class — holders of non-registered copyrights — without whom the defendant publishers and electronic databases could not have achieved “complete peace.” With this proper representation, the unnaturally extreme regressive claims structure got rectified. After the Supreme Court’s 2010 ruling in Reed Elsevier v. Muchnick, the Second Circuit Court of Appeals was directed to bless such a framework, and our brilliant objectors’ attorney, Charles Chalmers, became the “C class” attorney and worked with the counsel for the registered copyright holders, the “A-B class” attorneys, to bring home the final deal.
Though the freelance writer community has a way to go in terms of demonstrating the necessary organization, agility, and vision to become a force in the marketplace, there is not a doubt in my mind that the Freelance case outcome models important aspects of the future economy for independent creators. Even more than we realized when Tasini v. New York Times was launched by the National Writers Union a quarter of a century ago, or when the objections to Freelance were lodged 13 years ago, it is understood that the technology exists to track and properly route the revenues of even micro-transactions. In the aggregate, these become substantial pots of secondary-rights revenues when it comes to the electronic redistribution of articles first published by freelancers in traditional newspapers and magazines.
Moving forward, all the stakeholders need to have seats at the table to negotiate how these revenues get divided up: users, librarians, print publishers, and electronic publishers, as well as freelance journalists, photographers, and graphic artists. For my money, the sooner we can get there via some structured solution, similar to the music industry’s ASCAP and Congressional action, rather than via bruising and lengthy litigation, the better.