Who Needs a Court Record When There’s the ASJA Newsletter?

by Irvin Muchnick on May 13, 2005

ASJA stands for the American Society of Journalists and Authors. ASJA’s central role in the $10-to-$18-million preliminary settlement of the copyright class action suggests that a better name might be LTECR — for “Let Them Eat Copyright Registrations.”

In the upcoming series of posts to this blog, we’ll explore in depth the frightening implications of the ASJA weltanschauung. We’ll discuss how the preliminary settlement misleads ASJA members (as well as members of the other “associational plaintiffs,” the National Writers Union and the Authors Guild — not to mention the untold thousands of freelance writers who belong to none of these organizations) on the meaning of “statutory damages and attorneys’ fees”: the heart of the matter. We’ll further discuss how the settlement, as currently written, mysteriously lowballs the concept of “actual damages”: the other heart of the matter.

Finally, we’ll explain why all this affects the fate of independent creators in the brave new digital world, along with the future vitality and diversity of American journalism and culture. And in due course we’ll provide a one-link resource guide to copyright registration — costs, procedures, and how it applies to this case — in an effort to cut through the ASJA fog machine.

When all is said and done, what we have over here is a position from which more than a decade of blatant infringement by the publishing industry is fully leveraged; sure, damages can be ameliorated or discounted, but only in return for future concessions. Over there you have ASJA/LTECR Land, apparently driven by the view that the trampling of our rights should be sold out for pennies on the dollar even as our future rights are simply given away in perpetuity.

I say “apparently” because these all must remain ridiculously open questions for now. What we can say with certainty at this point is the guts of the current post. ASJA/LTECR Land is run like a Stalinist state, with carefully parceled out dribs and drabs substituting for comprehensive and useful information for freelance writers. Anyone who dares to challenge the party line is censured or drummed out of the club. (Even as we speak one of the three ASJA Forum participants who had the temerity to keep me apprised of the false statements — about my motion to vacate the preliminary settlement, about my lawyer, and about me — on that “private” listserv is no doubt being lashed 40 times with a wet noodle.)

In order to understand this in full, let’s go back to the court record of In re Literary Works in Electronic Databases Copyright Litigation. Basically, there’s no record. In March, with great fanfare and little substance, the three authors’ groups announced that the litigation without end was finally coming to an end. For the vast majority of the class, this would amount to $5 to $60 per claim. That is, unless there’s nothing left in this suspiciously small settlement fund (which in turn would be “syndicated,” or paid off in shares, by many of the largest players in the industry) after the “pre-registered” claimants finished collecting their own whopping claims of up to $1,500.

By no court record, I mean that the docket shows nothing — nada, zilch — other than an original complaint filed in 2001. The defendants never formally answered it. The plaintiffs never filed for an injunction. Thus, they “jawboned” for years while infringement continued unabated and while brand-new infringing products and models even sprang up, like FindArticles and HighBeam. And in support of this highly dubious preliminary settlement — from which we hope Judge George M. Daniels ultimately decides to take a step back — the parties offer nothing but conclusory statements — no expert reports, no economic models, no investigative methodologies.

But wait! I spoke too soon. For yesterday I did discover the barest hint of such a document. It’s the ASJA newsletter article, “Copyright Infringement Suit Settled,” which can be accessed at http://www.asja.org/newspub/x0505a.php. (Program note: I hope to get this blogging thing right in the near future with serviceable links to my web citations. But that step probably has to wait until my 16-year-old son finishes this week’s late production nights at the Berkeley High School student newspaper, the Jacket.)

The ASJA piece cheerfully assures us that the settlement is “a windfall” for “those of you who registered your stories regularly” and will likely earn “tens of thousands of dollars.” For most of the rest, it’s “found money.”

“What I have not been able to discuss until now,” former ASJA president Jim Morrison hush-hushes, “is how important — vital — the information supplied by ASJA was throughout the negotiations.” According to Morrison, the claims category breakdowns were based largely on ASJA-supplied PayCheck data and an accompanying analysis by a team of economists.

Why is that report not filed with the preliminary settlement and published at the authors organizations’ settlement information website? Enquiring minds want to know.

While we’re at it, we also want to know why that website — http://www.freelancerights.com — invites queries, then lets those queries, some of which are excellent, just sit there, stacked and unanswered, like a rugby scrum over a fumbled ball. Ah, one blog topic at a time …

My website, with our motion to vacate and supporting documents, is http://freelancerights.muchnick.net. Eventually I hope to get all of the basic court docs at the authors organizations’ site up at my site, too.



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