US copyright abuse - back to the drawing-board?

THE PROPOSED settlement of writers' claims for infringement of their copyright by 13 database companies and up to 2000 magazines, journals and newspapers has been thrown out by a court - throwing US copyright into some confusion.

In September 2005 the Federal District Court in New York approved a settlement that would pay writers and forgive and forget the abuses. Now, on 29 November, the Second Circuit Court of Appeals in New York overrules that, on a technical issue. It ruled that the District Court did not have the power to approve any part dealing with thousands of writers who had not registered their works with the US Copyright Office.

Both the objectors and the defendants - which include writers' organisations - want to overturn this judgement. Gerard Colby, president of the National Writers Union, says the ruling means "unregistered writers can't sue for anything, even compensatory damages".

The judgement was not related to the objectors' substantive objections to the settlement, nor the defendants' case. It did not rule on these. It has sent the case back to the District Court.

Objector Anita Bartholomew advises anyone who entered a claim in "Class C" - for works not registered with the US Register of Copyrights - to register them now. She is quoted on the blog about the objection by wrestling writer Irv Muchnick: "Any 12- month-period's worth (of articles) can be registered on a single form for a single fee".

The proposed settlement would have paid out $11.8 million, after legal fees, in an attempt to clear up after the landmark 2001 US Supreme Court ruling in Tasini v Times that newspapers had no right to put works online without permission or payment. The objectors argued that this amount would be swallowed up by large payments to the relatively small number of writers who did register their works - almost all of them novelists and others who have agents. Few freelance journalists and almost none of the non-US writers affected will have paid $45 for the registration procedure - a feature unique to US law. The "forgive and forget" settlement would have meant, the objectors say, that freelance journalists got little or nothing - and the publishers stood to get a license to go on re-selling our work.

19 December 2007

Irv Muchnik writes on his blog: All of the parties to the appeal are now working, separately and together, to reverse this decision, which would prohibit not only this settlement but any comprehensive settlement. The next step in these efforts will take one of two forms: either a request for reconsideration by the three-judge panel or a motion for a hearing "en banc," by all the circuit judges. (There are 13 active judges and nine semi-retired senior judges.) If those efforts fail, an appeal to the U.S. Supreme Court is contemplated.

This development may take a year or more to play out.

If this decision is not ultimately reversed, class members with "C" claims could register their works and become part of new actions against the defendants - individual, mass action, or class action. For that reason, we strongly encourage all freelancers to register all of the works included in the now in-limbo settlement.

If this decision is reversed, the Second Circuit will go back to dealing with the issues of our appeal.

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