Monday, 12 September 2005

Update on electronic copyright infringement

The largest-scale bootleggers of the written word on the Internet are attempting to extend their thieving through measures represented as a “concession” to writers’ and publishers rights by, and a proposed “settlement” of claims against by writers against publishers that includes a poorly-disclosed giveaway of rights to unlimited future use, in perpetuity, of work by authors most of whom would receive no compensation at all, or at most a nominal one-time fee.

Writers and authors have difficult decisions to make on the proposed settlement of the class action lawsuit against publishers and electronic databases, and a deadline today after which many of your rights as a writer will be forfeited by default if you take no action, even if there has not yet been any infringement of your work or you are unaware of any infringement, and even if you make no claim for damages under the settlement.

The settlement has been enlarged to include a potential default grant of future rights not just in newspaper and magazine articles but also books and Internet content. The scope of the class of works, writers, and copyright infringers (past, present, and future) affected by the settlement is unknown, and could be further enlarged even after tomorrow’s deadline for making claims or opting out.

If you’ve written anything you don’t want someone else to sell for their sole profit, read the extended entry in which I report on the conclusions I’ve come to after consultations in the past few days with some of the original plaintiff organizations who have proposed the settlement, and their attorneys, and with the attorney for a growing group of plaintiff writers who are objecting to the proposed settlement as an unconscionable sell-out of writers’ interests.

In August, announced that it was postponing the addition of any more scanned and digitized copyrighted books to “Google Print” until 1 November 2005, and allowing copyright holders to “opt out” of having their work appropriated and redistributed electronically by (for which, of course, had never obtained permission in the first place).

Not surprisingly, publishers and writers, who currently own the rights to electronic reproduction and distribution of these books, are unsatisfied by’s “generous” offer to postpone its plans to publish more works it doesn’t own, and to desist from further bootlegging of specific books — on request, book by book, by the copyright holder.

I’ve written previously about the infringement of writers’ copyrights by Google Print and Google News , and electronic publishing schemes like’s Search Inside The Book .

The Association of American Publishers (AAP), the Association of Learned and Professional Society Publishers (ALPSP) and the Text and Academic Authors Association (TAA) have joined the American Association of University Presses (AAUP) in criticizing the scheme as getting copyright law backwards, presuming a grant of electronic publication rights to in the absence of an explicit “opt out” in a form and manner of’s choosing.

Copyright law requires an explicit “opt in” license except in cases of “fair use”. claims that Google Print is permitted by fair use , but it doesn’t appear to satisfy any of the criteria for fair use. The same article that reported’s “fair use” claim also noted that, as with’s Search Inside the Book , the purported limits on display and downloading were inevitably ineffective. Anybody who’s clever enough can download the entire book. Sorry, That’s wholesale theft, not fair use.

Lawsuits seem inevitable. ought to lose, but they can probably afford a lot more lawyers, which is sometimes decisive no matter how poor the legal argument.

Meanwhile, the deadline is today for writers and authors to decide what to do about the proposed settlement of the class action lawsuits that followed the Supreme Court’s 2001 decision that publishers had violated freelance writers’ rights when they distributed their articles electronically, separately from the original publication, without the authors’ permission.

In 2001, in New York Times vs. Tasini , the U.S. Supreme Court upheld copyright infringement judgments against the New York Times, Time Warner AOL, Newsday, Mead Data Central (Lexis/Nexis), University Microfilms, and others, for making available comprehensive searchable electronic databases of content to which the rights to electronic publication were owned by the authors and photographers, not the publishers.

The New York Times vs. Tasini decision only directly affected a small group of named plaintiffs, but it set a clear precedent applicable to any other case in which a newspaper or other periodical licensed only the right to publish a article in print, but also published it electronically — downloadable or retrievable in standalone form, separately from the printed “collective work” in which it first appeared.

In fact, by the time of the Supreme Court decision such a copyright infringing practice had become the norm for most printed periodicals: Publishers were (and are) getting more and more money from “database publishers” for electronic copies of freelance articles they had published in their print editions, but freelance writers had never authorized this redistribution of their work in electronic form, and were (and are still, in most cases) receiving not a penny of what users pay for it.

So when, in the wake of the New York Times vs. Tasini decision, class action lawsuits were filed against the Times and other periodical and database publishers and copyright thieves, there was no question of the defendants’ legal liability. If they went to trial, they would lose. The only issue to be decided was the amount of the damages, and that has been the subject of prolonged negotiations.

While the negotiations were going on, the New York Times routinely used its pages to disparage the value of electronic rights (and thus the amount of damages it should have to pay for its systematic and ongoing infringement of freelancers copyrights) in a succession of articles like The Tyranny of Copyright — never disclosing, in these opinion and “news” articles, its own financial interest in persuading its readers — as potential members of the jury that might eventually determine damages owed by the Times — to minimize the value of electronic rights and amounts owed for them to writers.

In August, with the proposed settlement of the class action against the Times et al. pending final approval by a Federal judge, even the Times public editor (a sort of ombudsman), Byron Calame, got into the act with an opinion column mentioning the cost to the Times of paying for electronic rights (which they don’t yet do), but not mentioning the pending lawsuit, the Times liability, and the undisclosed conflict of interest that creates.

When I complained, Calame replied by e-mail that, “I didn’t know about any prospective court proceedings on electronic rights to the work of freelancers at The Times. So it didn’t affect my decision to do a column on freelancers — or what I wrote…. Had I known about the court proceedings, I think I would have tried to address the perception question you raise.” But he hasn’t yet done so, either in the pages of the paper or in his blog .

Anyway, what’s the story on the proposed settlement of the copyright class action? Why should writers care? What should they do?

When I first heard about the case, I assumed that it didn’t affect me: my writing appears in books and on the Internet, and only rarely in the magazines and newspapers that were the original focus of the class action lawsuit.

In August, however, I learned from the National Writers Union that had joined the case in late July as a (purported) “licensee” of one or more of the other defendants and/or participating publishers. (The whole point of the case, of course, was that none of the defendants or participating publishers actually owned the “rights” that they purported to license to and other electronic publishers .)

In 2003, scanned and digitized the entirety of at least one of my books into a database from which they gave away electronic copies had, without my permission. That prompted me to take a careful look at the proposed settlement to see if it would compensate authors like me for’s infringement of our copyrights in our books.

The settlement includes any (purported) licensee of any of the defendants or participating publishers, and any work “licensed” by them or included in one of the defendants’ databases as of the final effective date of the settlement, which won’t be until sometime after 30 September 2005.

Despite my best efforts I’ve been unable to determine whether I or other authors whose work was infringed by are even eligible to participate. I don’t know what sort of “license” claims to have, or with whom, for its use of my book.

And a new (purported) license could be granted to by one of the defendants, or new material (including content from my books or my writings on the Internet) added to the defendants’ databases from today until the effective date of the settlement — after it’s too late for writers to opt out of the settlement.

Having decided, tentatively, to opt out of the settlement, I contacted the attorneys for the class of writers proposing the settlement (my attorneys, if I’m a member of the class) to see if they could suggest any way that I could figure out whether I was eligible to make a claim, or eligible to object to the settlement, and what I should do.

Their response to my query came in a curt e-mail message: “It is the author’s responsibility to establish which works he believes are eligible under the settlement and to include each of them in his claim form. We unfortunately have no easy way to do this or help you with this.” Very helpful.

Somewhat to my surprise, I also got a phone call Friday from one of the attorneys proposing the settlement, Michael J. Boni . Boni seemed to be making a serious attempt to answer my questions as a possible client member of the class he represents. But he was unable to suggest any way I could determine whether I am a member of the class, eligible to participate in the settlement, or to object to it. He couldn’t point to any specific language in the settlement supporting his claims about what it does and doesn’t mean. And he seemed unwilling to consider the possibility that the settlement agreement might be potentially subject to abuse to indemnify infringements beyond those that were the cause of the original complaints.

I also spoke Sunday with Charles D. Chalmers , the attorney for a group of writers including former NWU staffer Irvin Muchnick who are objecting to the proposed settlement.

Boni and Chalmers agreed on only one thing: both of them advised that, if I wasn’t going to make a claim, or if my primary concern was possible infringement of my copyrighted books or writings on the Internet (rather than newspaper or magazine articles), I should probably opt out of the settlement class to protect my rights. I got essentially the same advice from the Grievance and Contract Division of the National Writers Union:

If you’ve published non-fiction articles or books since 1977 you should either file a claim by Sept. 30 or opt out today. If you do neither, the defendants are free to keep on selling your intellectual property with no payment to you, and you can never file suit against them for infringements that are already
going on.

So the one thing everyone agrees on, whether they are proposing or opposing the settlement, is that the default terms that apply to writers who take no action are probably not in those writers’ interests. Why, then, is anyone proposing those default terms? That’s a good question, which Irv Muchnick has tried to answer in his blog and in his correspondence with the named plaintiffs. It’s with good reason that Muchnick and the other objectors call the proposed settlement “unconscionable”.

But for the writers who may get stuck with this settlement, the reasons don’t matter so much as the fact that (1) today is the deadline, and (2) the worst possible thing you can do is to do nothing.

If you do nothing, you are bound by the settlement. And unless you “opt out”, any of the defendants, and any of their “licensees” (as of the final effective date of the settlement sometime in the future), acquires rights under the settlement to unlimited use, licensing, and sub-licensing, in perpetuity, for their sole profit, of any of your work subject to the settlement — even works you didn’t know had been infringed, and for which you made no claim for damages!

The more writings they can find a way to infringe and add to their databases between now and the effective date of the settlement, the more rights they acquire — for no additional compensation, since the deadlines for opting out or making claims might already have ended before the infringement, and the settlement is capped at US$18 million, a pittance compared to the statutory damages for infringement of copyright in more than 100,000 books by alone.

If you don’t file a claim, you won’t get any money from the settlement, even of your copyrights were infringed. You have nothing to gain from the settlement, and rights to all your work, in perpetuity, to lose. So if you aren’t going to file a claim, opt out of the settlement today to protect your rights.

You can out through the form on the settlement Web site , but you don’t get any confirmation that you can later use to prove you opted out. So it would be a good idea, as the NWU also recommends, also to send your request in writing (certified mail, return receipt requested) to the settlement claims administrators: The Garden City Group, Inc., P.O. Box 9000 #6250, Merrick, NY 11566-9000. An easy way to generate an opt-out request would be simply to print the filled-in Web form. The deadline is today: midnight EDT today to opt out on the Web, or postmarked today for postal mailing of opt-out requests.

The same goes for works with respect to which you aren’t making a claim. You won’t get any money for those works from the settlement, but you may forfeit future rights in them unless you explicitly opt out of licensing them. Anyone who isn’t opting out of the settlement class entirely should still opt out of the default grant of future rights in all works except those for which you have made a claim. It isn’t obvious from the settlement notices that this is necessary, or possible, or how to do it, but Muchnick has provided forms and instructions on how to use them.

So if you aren’t making a claim, opt out of the settlement entirely by the end of the day today. If you are making a claim, opt out of giving away future rights in other works by 30 September 2005.

[Addendum, 16 September 2005: More here and here on the view of the proposed settlement from the UK, and its impact on writers outside the USA, from the London Freelance Branch of the National Union of Journalists. According to the Web site for the proposed settlement , “Claimants who live in southern Louisiana or Mississippi, or those authors who can otherwise demonstrate that Katrina precluded their timely filing of claims, will have an extension [from September 30, 2005] until October 31,2005 to file such claims.” Oddly, there’s no mention of a similar extension of the 12 September 2005 deadline for opting out of the class. It remains unclear to me if the deadline for opting out of granting rights to future use of ones work, or opting out of granting rights in works with respect to whcih a writer does not make a claim for damages, is/was 12 September 2005, 30 September 2005, or (for those affected by Hurricane Katrina) 31 October 2005.]

Link | Posted by Edward on Monday, 12 September 2005, 12:14 (12:14 PM)

Authors who opt-in and who allow Google/Amazon to digitize their books should also demand copies of the digitized versions so they can use them / sell them for themselves.

Posted by: Keith Weinberger, 15 September 2005, 15:57 ( 3:57 PM)
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