From the Archives: Complete Pre-History of the Finally Settled ‘Freelance’ Copyright Class Action — a.k.a., ‘In re Literary Works in Electronic Databases Copyright Litigation’

by Irvin Muchnick

As noted earlier this week, the settlement in the “Freelance” class action copyright case, 18 years in the making — also 13 years since a slate of objectors I led began forcing revision of the original settlement — is now on the books, with the mailing out of $9 million worth of checks to writers to settle claims.

Yes, you read that right: nine million, not billion. The first-ever class action copyright case in the history of American jurisprudence, launched by a team of lawyers with my support in 1997, against a dinky and soon defunct fax article delivery service called UnCover, had set aside $4.35 million for infringed writers after payment of $2.9 million in attorneys’ fees and costs.

Let’s see. That’s four mil and change for a few years of bad behavior by a company few people have ever heard of, and nine mil and change for the combined systematic and willful infringements across many years by every major entity in newspaper and periodical publishing, plus their illegal electronic database partners.

This is why I call the muffled denouement of In re Literary Works in Electronic Databases Copyright Litigation “the end of an error.” It is like something out of the warped brain of Dr. Evil in Austin Powers: International Man of Mystery, who emerged from a 1967 time machine with a doomsday device by which he would seek to blackmail the United Nations to the tune of “one million dollars.”

Some day in the distant future, Internet archaeologists may want to document all this micro-nonsense. Since I have a vanity stake in it, I’m helping out here. Let’s do this topically.

I – PUBLISHERS WEEKLY’S COVERAGE

Andrew Albanese of Publishers Weekly did something unique for Freelance: he covered it. That he was writing for an industry trade publication made his grasp of the importance of the case and of documenting it even more admirable.

Contrast this with the New York Times. The losing party in the root National Writers Union-backed 2001 Supreme Court decision Tasini v. Times, the Newspaper Of Record offered only sparse and slanted coverage. One of the many things you’ll never know by reading only the Gray Lady is that, though the Tasini majority justices sketched hypothetical and constructive win-win solutions that could emerge from their decision, such as a royalty system for writers for electronic reuse, the Times and other powerful publishers ignored this suggestion. Leveraging their marketplace power over a legal victory writers had won fair and square, the publishers turned the court decision on its head by simply shoving prospective all-rights contracts down the throats of their freelance contributors.

By what I consider its most plain and classic reading, the “doctrine of divisibility” in the Copyright Act of 1976 had set out to empower independent creators in new technologies, in the process making investigative journalism more viable at its roots, and culture more diverse and vital. Instead, even as the economy skews inexorably toward freelance and casual labor, freelance writers, photographers, graphic artists, and videographers are more strapped than they’ve ever been. Culture has not been democratized; it has been further consolidated in the hands of the few.

Back to PW. Here are a few links to the generous space it gave to the meaning of our “Freelance” settlement objection project, starting in 2005.

“The Objector,” April 5, 2010(interview of me),https://www.publishersweekly.com/pw/by-topic/digital/copyright/article/42701-rights-battle-the-objector.html

“Unsettled: Congressional action must pick up where class action has failed”(guest column), August 26, 2011,https://www.publishersweekly.com/pw/by-topic/columns-and-blogs/soapbox/article/48484-unsettled.html

“Twenty Years Later, Landmark Digital Lawsuit Lawsuit Concludes,” June 11, 2014,https://www.publishersweekly.com/pw/by-topic/digital/content-and-e-books/article/62825-20-years-later-landmark-digital-lawsuit-concludes.html

II – OCTOBER 7, 2009: SUPREMES ARGUE ‘REED ELSEVIER V. MUCHNICK’

October 7 is my birthday and a lot of good things have happened on it. For example, I’m a St. Louis Cardinals fan, and on October 7, 2011, Chris Carpenter outdueled his friend, the late Roy Halladay of the Philadelphia Phillies, 1-0, in the fifth and deciding game of the National League Division Series. (The Cardinals would go on to win the World Series.) On October 7, 2013, Michael Wacha rescued the season by no-hitting the Pittsburgh Pirates through seven innings in Game 4 of the division series. (The Cardinals would go on to lose the World Series.)

But neither matched October 7, 2009, when my son Jake — now a public defender in Brooklyn — and I squeezed through security and into the gallery at the Supreme Court in Washington to watch the oral arguments in a case that went by the exquisitely tasteful title of Reed Elsevier v. Muchnick.

Just how the case came to acquire this name is mysterious. A more accurate name would have been Reed Elsevier AND Muchnick vs. the Second Circuit Court of Appeals. In U.S. District Court for the Southern District of New York, the parties had come to a settlement that included the claims of holders of both registered and unregistered copyrights. Indeed, this was the one point on which both sides and the objectors agreed. However, the appellate court, in the course of dealing with the objections of our dissident group of class members — who were ably represented by Charles Chalmers — sort of ducked ruling on the merits before them by deciding without being asked (or “sua sponte“) that the settlement was invalid on the basis of including unregistereds.

What the Supreme Court would unanimously tell the Second Circuit in 2010 is that they were wrong, that a class action settlement can indeed be so structured: while unregistered copyright holders can’t bring a court action, they can participate in its resolution. This set the stage for the original settlement parties to bring Chalmers into the renegotiation of a settlement, which better and more directly represented the interests of the super-majority of class members who were unregistereds.

One last thing about October 7. That date in 2009 (civics class division) and 2011 and 2013 (baseball division) had nothing on 2005 (life division). For October 7, 2005, was the day I was united with my fourth and last child, Lia Fu Hao, then 11 months old, at the Jiangxi Province social services office in Nanchang, China. Lia was not yet six months old, nor more than a gleam in her mother’s and my eyes, when the objection project started.

III – FREELANCERIGHTS.BLOGSPOT.COM

From May 2005 until it dwindled to a vanishing point following the 2014 court approval of the revised settlement, the objection project was supported in a side blog I kept at http://freelancerights.blogspot.com. For those of you interested in historical curiosities, it’s still there. If any of the content today registers “cringe-worthy,” I don’t want to hear about it.

IV – HOW IT ALL STARTED

In my humble opinion, the whole mess traces to a volunteer campaign I organized at the National Writers Union’s Bay Area Local in 1994, just months after Jonathan Tasini, then president of the NWU, launched Tasini v. New York Times.

The campaign led to the creation of a visionary, but in the end ineffective, NWU agency called Publication Rights Clearinghouse. “PRC,” which I was directing, led to my decision to become a copyright litigation consultant. As I said earlier, “my” first case, Ryan v. CARL Corporation, against UnCover, settled for $7.25 million in 2000.

Shortly after the settlement, I was maneuvered out of consulting for additional cases when a slew of copycat actions got filed all at once, foiling my elaborate plan to go up the electronic database food chain to pick off targets one by one. Thinking I was done. I self-published a prolix memoir entitled “Crass Action: Confessions of an Internet Avenger.” Several years letter, looking at the hash the plaintiffs’ lawyers had made of the Freelance settlement, I would realize that I wasn’t done, after all, and I got back in the game as an objector and hired Charles Chalmers.

I’ve reformatted the text of “Crass Action: Confessions of an Internet Avenger” and put it up at http://muchnick.net/crassaction.pdf. The original version, somewhat typographically garbled in places because of the evolution of the web, is still up at the URL’s http://muchnick.net/crasshome.html, http://muchnick.net/crass2.html, et seq. Lame jokes and nearly incomprehensible period references abound.

Also republished are my sidebars to this piece:

“Arthur Andersen and Me,” http://muchnick.net/arthurandersenandme.pdf. The inside story of how the crooked and now dead Arthur Andersen accounting firm screwed up class notice and claims administration for Ryan v. CARL.

“Publish and Perish,” http://muchnick.net/publishandperish.pdf. An essay I was asked to write for an obscure librarians’ journal called the The Charleston Advisor.

“Infohighwaymen” by Nicholson Baker, http://muchnick.net/nicholsonbaker.pdf. In 1994 this bestselling author, then a member of the National Writers Union’s Bay Area Local, wrote an op-ed piece in the New York Times that essentially kicked off our Operation Magazine Index campaign. So we can blame it all on Nick.