Reed Elsevier v. Muchnick Is About the Hijacking of Tasini v. Times

by Irvin Muchnick on September 14, 2009

Editor’s note: Beyond Chron contributor Irvin Muchnick is the lead objector to the settlement of a major copyright class action. The case is now at the U.S. Supreme Court under the name Reed Elsevier v. Muchnick, and oral arguments are scheduled for Oct. 7. Here is Muchnick’s preview.

Supreme Court cases turn on technicalities, but they also are driven by underlying policy narratives. Reed Elsevier v. Muchnick, the major freelance writers’ rights case of our era, is no exception. In addition to looking for the answer to the narrow question the justices accepted for review – “Does § 411(a) of the Copyright Act prevent federal jurisdiction for claims of unregistered copyrights?” – discerning observers will be paying close attention to how the Justices get to their answer.

Don’t take it from me, but which way the Court rules matters a whole lot more to publishers than to writers and other independent creators.

If the justices decide, contrary to the Second Circuit Court of Appeals, that un-registereds can participate in court-sanctioned settlements, then this whole mess goes back to the lower court for review of the deal’s merits. Our attorney, Charles Chalmers, is well prepared to demonstrate to the Second Circuit that the class has been inadequately represented and the settlement’s “license by default” mechanism is illegal.

On the other hand, if the Justices decide that the courts should have no part of a settlement involving un-registereds, then this one is dead as a doornail, here and now. The registration conundrum is really the problem of those who have been stealing copyrighted material for decades: the print publishing corporations and their electronic-database partners. It is not the problem of the people they have been stealing from. The reason is that the holders of unregistered copyrights would remain potential holders of registered copyrights – they could always file their registration paperwork and sue later.

What is the history that has brought us to this pass? And what is the public-interest solution to the fair division between publishers and writers of revenues generated by the digital revolution?

In 1993, a group of freelance plaintiffs led by Jonathan Tasini, then president of the National Writers Union, sued the New York Times and others over the illegal reuse, without the contributors’ permission or compensation, of their previously published newspaper and magazine articles on products such as LexisNexis. These practices, systematic and willful, violated the Copyright Act of 1976, which codified that a freelancer typically licensed to the first-print publisher only the right to print an article for the first time. Individual article delivery is not the same as republication of the entire collective work (an obvious example of the latter is microfilm).

In 1997, then-U.S. District Court Judge Sonia Sotomayor sided with the publishers. Two years later, the Second Circuit overturned Sotomayor. In 2001, the Supreme Court upheld the Second Circuit by a 7-2 vote, with liberal lioness Ruth Bader Ginsburg and arch-conservative Antonin Scalia both in the majority. (Sotomayor, now on the Supreme Court, has recused herself from Reed Elsevier v. Muchnick, perhaps because she participated in its procedural deliberations while on the Second Circuit.)

In her Tasini v. New York Times opinion, Ginsburg dismissed the publishers’ warning that a ruling adverse to them would have “devastating” consequences for the historical record. “The parties,” she wrote, “may enter into an agreement allowing continued electronic reproduction of the Authors’ works; they, and if necessary the courts and Congress, may draw on numerous models for distributing copyrighted works and remunerating authors for their distribution.”

In the immediate aftermath, as part of their campaign to shove all-rights contracts down the throats of almost all their freelance contributors – trumping the provisions of copyright law in their future practices – publishers promoted to librarians and information consumers a doomsday scenario in which all freelance articles might have to be expunged from databases, turning them into “Swiss cheese.” This line was malarkey. By stealth, publishers for years had been deleting from databases some works of some complaining writers – all without bothering to disclose to customers that the publishers were choosing degradation of their products over good-faith negotiation of new-tech revenue streams.

In 2000, anticipating the writers’ ultimate Tasini victory, several class actions were filed on behalf of freelancers. The Authors Guild (which has proven itself a classic “company union”) maneuvered to the helm of these consolidated cases, just as the Guild later would direct the equally controversial and more heavily covered Google Books settlement. (In a coincidence, the Google case has a fairness hearing in district court the same day as the Supreme Court hearing in the freelance case.) In the spring of 2005, other objectors and I intervened in the freelance case, leading us today to the steps of East Capitol and First Street NE.

Unless they’re stupid, the Google Books settlement parties are closely following our developments. In the opinion of many, both the Google and freelance cases abuse the class-action system and turn copyright law on its head by giving away to the infringers future rights of all writers who do not affirmatively opt out. Indeed, two of the partners of the settlement to which we are objecting – the National Writers Union and the American Society of Journalists and Authors – have turned around and formally objected to the Authors Guild’s Google settlement by using some of our exact arguments.

I believe that for book authors and freelance journalists alike – as well as for photographers, graphic artists, and videographers – the inexorable answer is a fully and fairly conceived royalty system. Such a system would include “compulsory licenses” freeing information consumers of the burden of chasing down rights holders. But, as Register of Copyrights Marybeth Peters noted in Congressional testimony last week, comprehensive royalty systems cannot be schemed for the private benefit of litigation parties and their lawyers, as the Google parties are trying. Like the public library system of the 19th and 20th centuries, they must emerge from larger negotiations guided by common-sense copyright reform and antitrust waivers at the direction of Congress.

The delicate interplay between narrow legal question and broad policy comes into play in the Supreme Court appeal via a deceptively complex issue: whether the federal courts are restricted from conferring “subject matter jurisdiction” over the claims of unregistered copyrights. The need to include un-registereds in order to give a final deal true closure is the one thing on which both the settlement parties (the defendants plus the plaintiffs) and we objectors agree. This matter is at the High Court only because of a monkey wrench in the form of a sua sponte (spontaneous and unprompted) ruling by the Second Circuit.

Because none of the parties directly involved in the case is defending the Second Circuit’s position (and even the solicitor general, who argues the government’s interests before the Supreme Court, has weighed in against it), the justices appointed an amicus curiae, or “friend of the court,” to argue on behalf of the lower court. Intriguingly, amicus Deborah Merritt, an Ohio State University law professor, is a former clerk for Justice Ginsburg. Merritt’s brief is effective – so, effective, in my view, that it raises the possibility that Ginsburg and her brethren have a larger agenda. Ginsburg’s Tasini opinion had clearly signaled a royalty system as the real-world solution. And I think the settlement proposed in the freelance case just as clearly perverts that intention – enriching the Tasini-losing publishers at the expense of the winning writers. Could the Supreme Court be reaching for the technical means to rectify that injustice?

If so, the objectors (represented by Chalmers with the support of the Stanford Law School Supreme Court Litigation Clinic, directed by Pamela Karlan and Jeffrey Fisher) have shown the justices a way. We point out that even if the courts do not have original jurisdiction over unregistered claims, a provision known as “supplemental jurisdiction” would make it appropriate to remand the matter to the Second Circuit for consideration of aspects of the settlement’s merits – before jurisdiction is even fully addressed.

Again, this is all speculation on the part of someone with a direct interest in a particular outcome. But whatever the specifics of the ultimate decision in Reed Elsevier v. Muchnick, the justices should do something to stop the hijacking of Tasini and hasten the arrival of a royalty system. That will be good for writers, less confusing for the public, and the fulfillment of the promise of new technologies to make our culture more accessible, diverse, and vibrant.

Irvin Muchnick’s Chris & Nancy: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death` will be published in October by ECW Press. Pre-order information is at He blogs at and tweets at

Filed under: Archive

Translate »