I'm Free, Freelancing
I read with interest Charlotte Allen's "Freelance Writers of the World, Unite!" (Aug. 1). As an attorney representing a group objecting to the settlement, I thought that generally she thoroughly reviewed the major points, but there is an aspect of the settlement she missed.
An author or the copyright owner owns the copyright, which is property, whether it is registered or not. As Allen correctly notes, most class members will not file claims. Those that do file a claim are given the choice to deny the right to future use of their works by the databases. They get more money if they permit it.
The notice to class members does not reveal another very troubling provision, though. Those who do not file claims must still affirmatively act to deny future use of their works, or they give the databases licenses in perpetuity to the work. While the notice and the settlement website provide forms for making claims, or even opting out, there is no form for a class member to say, "I'm not making a claim, but you don't have the right to continue infringing my work." In other words, the settlement gives away class members' property but does it by stealth.
Neither the notice nor the website mentions this. To my knowledge, and I toil in the field of class action abuse, this is an unheard of use of a class action settlement. It is fine if a class member is willing to pass on the compensation, but imagine that we must all now carefully read every class action notice, or go and read the settlement document itself (usually 35 to 50 pages of dense legalese), to find out if the settlement will take some of our property away from us.
And of course we know that not everyone will get his notice, or get it in time to act. Some authors are dead, sick, or aged, and their copyrights are now, or will soon be, in an estate, or owned by their heirs. (Copyrights last for the life of the author and 70 years.) The issue here is the principle involved. Most of us don't like others giving away rights to our property, especially without even telling us.
Charles D. Chalmers
Mill Valley, CA
As a managing partner of one of the law firms representing the plaintiffs in the Literary Works in Electronic Databases Copyright Litigation class action, I read Charlotte Allen's "Freelance Writers of the World, Unite!" closely. For those of your readers who care to season their lawyer-bashing with a dose of facts, allow me to share the following:
Allen accuses the lawyers of "cherry-picking" an easy case by filing when the Supreme Court was about to affirm the Second Circuit's decision in Tasini v. New York Times. In fact, the cases were filed before the Supreme Court even granted certiorari, at a time when publishers were claiming a perfect right to hand over the works of their freelance contributors to online databases. Lacking the benefit of 20/20 hindsight, none of us felt we had an easy win at the time.
Allen claims the lawyers stand to make out like bandits, with a potential fee award of $3.825 million and $500,000 in costs if the settlement is approved. Anyone who has given the court filings even a passing glance would know that the value of the time spent developing the case and negotiating a settlement over several years with dozens of corporate lawyers is greater than the fee we stand to receive if the settlement is approved. None of us have been paid a nickel since the case was filed five years ago. The $500,000 in costs we are seeking will simply repay (without interest) the money we advanced to litigate the case.
Allen sneers at her $400 recovery in relation to the $4 million the lawyers stand to receive if the settlement is approved, as if the entire proceeding had resulted in a modest payment to her and a multimillion-dollar payment to a group of lawyers. This is a cheap shot, of course, since the class stands to recover between $10 million and $18 million in cash, and the compensation paid to the lawyers is relatively modest in relation to the overall recovery. Is it not obvious that in a class action involving tens of thousands of people, the recovery of any individual will be small in relation to the money paid to the lawyers?
Allen expresses "unease" and "foreboding" at the thought that the class representatives include lefty authors. The class representatives are not required or expected to share Allen's worldview, however. If Allen finds the association with E.L. Doctorow so repugnant, she could exclude herself from the lawsuit, an option she fails to mention.
Allen suggests that freelancers will have to rummage through "decades-old boxes of clippings" to make a claim. Again, she has the facts wrong. To save the claimants the trouble of scrounging for clippings, the plaintiff's lawyers insisted on a streamlined, online claims process, with the settlement administrator searching the relevant databases electronically.
Satisfied with having her own works distributed electronically without permission or payment, Allen apparently believes other freelance writers should (or must) take the same view. That Allen welcomes publication of her work on electronic databases does not mean that other freelancers are wrong to assert their right to compensation for infringement, however. Our legal system should protect all property rights, even rights held by impoverished freelancers. The modest recoveries that holders of unregistered works stand to receive reflect the modest value of those works in the first place, not a dysfunctional legal system. Surely Allen is not espousing the Marxist view that the freelancers should accept an infringement of their property rights to serve the greater good.
I agree with Allen on one point. In retrospect, the case will probably look more like a "historical accident" than the shape of things to come. By settling the claims of all affected freelancers, the Literary Works in Electronic Databases settlement will put to rest the controversy over compensation for unauthorized electronic use of their works and ensure that these works remain available on online databases.
The world's largest online databases and publishers can take care of themselves. If they want to pay up to $18 million to nail down their right to carry freelancers' works, they probably have a good reason for doing so. The lawyers in this case did what lawyers do--advocate for their clients, ultimately catalyzing changes in legal rights that economists tell us promote efficiency.
Allen froths with contempt for what she portrays as a broken legal system that rewards trivial injuries and overpays lawyers. If anyone is getting rich here, however, it is not these plaintiff's lawyers. And if the legal system is broken, you would not know it from this case.
Daniel C. Girard
Hillsborough, CA
Charlotte Allen responds: I'm delighted to hear from Daniel C. Girard that an electronic serf is now available to relieve writers of the task of rummaging through their old clips in search of database-purloined material.
When I spoke a month ago with Kay Murray, a representative for the plaintiff class and general counsel for the Authors Guild, I joked that I could make more money using my time to write another article. The only solace she was able to offer was what sounded like an online worksheet that would make the task of documenting our claims a bit more bearable. "You could do two items every day," she suggested. If there is now a 'bot that can do the work for us, shouldn't our lawyers have informed us of this fact when they mailed out the notices of the proposed settlement? After all, we plaintiffs now have less than two months to get our proof-of-claim forms filled out and on file.
My point is not, as Girard suggests, that I believe freelancers "should accept an infringement of their property rights to serve the greater good." It is that those rights, valid as they may be (or might have been, since the standard-form contracts have changed), are worthless, practically speaking, to all but a handful of writers, which is why I'm betting that relatively few freelancers will bestir themselves to fill out the documents that might enable them to collect a few hundred bucks apiece. There is an old legal maxim: De minimis non curat lex--the law does not concern itself with trifles. A claim for $400 (or far less, if I had to prove as an unregistered copyright-holder that I was actually monetarily harmed) belongs in small-claims court, not under the august and expensive purview of a federal district judge in Manhattan.
I'll leave it to Girard to decide whether anyone at his law firm is "getting rich" from a three-way split (among three firms) of $3.825 million in legal fees in a case whose legal principles had already been decided in his clients' favor by a federal appeals court. I admit to a jaundiced view of class-action litigation, which diverts value from economically productive activity to lawyers and whose settlements often dispense with the traditional courtroom requirement of proof of actual injury. This case strikes me as an egregious example of both problems.
The Fourth Estate
P.J. O'Rourke's polemic against politicians who dispatch reporters to penitentiaries ("Sending Reporters to Jail?" July 18) sounds like peevish, adolescent pique, as do recent announcements by a couple of editors that they have suspended investigative projects to avoid putting their reporters at risk. Proposing immature threats of retaliation serves no constructive purpose in our public dialogue. Investigative reporting can, and should, be pursued ethically and legally.
If the editorial decision favors proceeding in the face of the risks, responsible editors and publishers, and their attorneys, should weigh the consequences. Then, if they do the crime, they should be prepared to serve the time. But spare us the martyr complex!
R.C. Adams
Clovis, CA
Hitting a Nerve
If a fraction of the mainstream U.S. media coverage of Iraq showed the same serious, informed, thoughtful, and (not least) beautifully written qualities as Austin Bay's "Nervous in Baghdad" (July 25), the public's understanding of, and patience for, the war would be considerably improved. As it is, given the media's steady diet of knee-jerk negativism coupled with Democratic hysteria, it's remarkable that we've stayed the course even thus far. It has been said before: If the war is to be lost, we will lose it in Washington and New York, not Baghdad.
Matthew L. Philbin
Fairfax, VA