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September 9, 2009

ASJA, NWU, argue against their own Reed Elsevier v. Muchnick settlement in Google objection

This is pretty amazing.

As some of you know, I am one of the objectors to the class action settlement reached by ASJA, NWU and the Authors Guild with Reed Elsevier and other databases and periodicals publishers. There, as in the Google case, large corporations had infringed the copyrights of a huge number of writers.

My objection in that earlier case was simple and mirrors the reasons I’ve protested the Google settlement. The writers’ organizations — ASJA, the Authors Guild and NWU — agreed to hand over, to the Defendants, the future rights of anyone who didn’t file a claim or opt out.

(See the Tasini case for the genesis and a bit of background; also see Irv Muchnick’s blog, which outlines every move since,  in excruciating detail).

Defendants also got the only thing they should have been given, what Defendants normally get in a settlement: release of the claims of past wrongdoing.

I objected to the theft of the rights of absent class members, first to the leadership of ASJA and then, when I could not get them to budge, to the court.

Fast forward to yesterday, and ASJA as well as NWU (as part of a group called the Bloom objectors) have filed an objection to the Google settlement.

Their key argument?

“… after approval, Rightsholders will be deemed to have granted a license by virtue of doing nothing.”

In other words, ASJA and NWU, both of which once agreed to give away, to Defendants in the earlier class action, the future rights of periodicals writers who fail to opt out or file claims, now object to giving away the future rights of book authors who fail to opt out or file claims.

ASJA’s aggressive support for what I saw as theft in the Freelance settlement is the primary reason I resigned from that organization. That was no small thing for me. I’d been a very active volunteer on the First Amendment  and other committees, and had served on the board.

I’m glad to see that ASJA, under the new leadership of Salley Shannon, finally appears to understand that it’s unethical to bargain away the rights of some writers in exchange for better terms for the writers you represent.

Better late than never.

- Anita Bartholomew

September 8, 2009

How to understand the objections just filed in the Google settlement

The time has now passed for authors to opt out of the settlement. However, we can still hope that Judge Chin will decline to approve it in its current form.

Today was the last day to file objections and briefs, and those that were filed mostly focused on an issue originally raised by attorney-author Scott Gant: that most of the authors who will be bound by the settlement terms were illegally drawn into the class.

Let me, as a non-lawyer, explain my understanding of this, as simply as I can.

On the same day the settlement was announced, the Authors Guild amended the class action complaint to immensely expand the Plaintiff (allegedly wronged party) class from where it had been: all those with a copyright interest in a book in the U Mich library, where Google had scanned all the books.

The newly amended complaint, which coincided with the announced settlement,  included in the Plaintiff class EVERYONE with a U.S. copyright interest in a book, not just those whose books had been infringed.

Why do Gant and most of the current crop of objectors claim this is illegal?  Because a lawsuit’s Plaintiffs have to have a valid complaint against a Defendant. Those whose books were not scanned by Google have no valid legal complaint. They aren’t affected.

The effect when the Authors Guild amended its complaint to expand the Plaintiff class was to sweeten the deal for Google, the Defendant. It gave Google the future right to scan books it hadn’t yet scanned and to circumvent copyright law (and, apparently, privately negotiated book contracts), and gain significant future control of all books.

In exchange, the Authors Guild got whatever it negotiated from Google, which we don’t (and probably won’t) know.

That’s a commercial transaction, not a settlement of a legal claim. And that’s the theme running through objections filed earlier by Scott Gant and today by Microsoft, Yahoo, Consumer Watchdog,  and a group of authors called the Bloom objectors.

Shorter explanation of the objections’ basis: it’s as if Search Engine X infringed my copyright but not yours. But in settling the case, I made a deal with Search Engine X that it could have your future rights along with mine, in exchange for something else I wanted.

Do you think it would be fair for you to be forced into such a deal? I don’t either. And, aside from a dozen other arguments that could be made, I hope that Judge Chin recognizes the inherent injustice of such a deal and stops it right there.

- Anita Bartholomew

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