Judge Asked to Halt Copyright Class Action Settlement Approval

FREELANCE WRITER AND ACTIVIST ASKS JUDGE TO HALT $10-TO-$18-MILLION COPYRIGHT CLASS ACTION SETTLEMENT NEW YORK, April 27, 2005 -- A freelance writer, who is a former National Writers Union official and an architect of class-action copyright litigation on behalf of authors, today asked a federal judge to vacate the preliminary approval of a $10-to-$18-million settlement in a landmark lawsuit over unauthorized reuse of authors’ previously published newspaper and magazine articles.

In a motion filed with United States District Court Judge George M. Daniels, Irvin Muchnick asserted that it was far too soon to approve the settlement announced last month by three authors’ organizations, 13 electronic database companies and 36 participating publishers.

Muchnick’s attorney, Charles D. Chalmers of Mill Valley, California, argued that the settlement should be set aside because there is good reason to believe that the size of the authors’ restitution fund is too small, the provisions for notifying affected writers are inadequate, and the release of future claims against publishers is both vague and too broad. Chalmers told the court that a requirement for any potential settlement objectors to appear at a July hearing in New York would deny them due process in view of the fact that settlement claims are set as low as $5 and involve unknown thousands of writers throughout the world. It is also possible, under the preliminarily approved settlement, that a substantial segment of the class would receive nothing in return for giving up all rights for future uses of their works.

The motion labeled the preliminary settlement “fatally flawed” in these and perhaps additional respects that have yet to be scrutinized. Muchnick called for the adoption of a new approval schedule, and for the parties to provide information prior to approval.

Muchnick, an assistant director of the National Writers Union, one of the authors’ organizations participating in the settlement, from 1994 to 1997, was the founding administrator of the union’s Publication Rights Clearinghouse, a collective-licensing agency loosely modeled after the music industry’s American Society of Composers, Authors and Publishers. Many advocates of freelancers’ rights believe that such a system is the only way to ensure that independent creators will be paid their fair share from revenues generated by new digital technologies such as the Internet.

>From 1997 to 2001, Muchnick was a litigation consultant. He
helped initiate Ryan v. CARL Corp., the first successful use of the class-action vehicle on behalf of writers. That case, against the now-defunct UnCover document-delivery service, settled in 2000 for $7.25 million. Later that year Muchnick was instrumental in launching the first of the several lawsuits currently consolidated before Judge Daniels. Muchnick himself is a member of the plaintiff class as a result of alleged infringements of his copyrighted works by several defendants. His articles have appeared in many national publications, including The New York Times Magazine, Sports Illustrated and The Washington Monthly.

“Negotiation is a fine thing, and I continue to believe that publishers should work in good faith with the author community on a comprehensive and equitable royalty system,” Muchnick said. “But until that day, they should not be given what amounts here to a virtual free pass on years of blatant and systematic piracy. Nor is it acceptable for the National Writers Union, the Authors Guild and the American Society of Journalists and Authors to be locking arms with this outlaw industry by telling their members, in effect, ‘Let them eat copyright registrations.’ We hope Judge Daniels will agree that the parties need to step back, explain more clearly the reasoning behind their settlement terms, and revisit them.”

Muchnick added: “I am grateful -- as freelancers everywhere should be -- to Charles Chalmers for going where angels fear to tread and helping us make these points to the court. Mr. Chalmers is experienced with presenting class members’ objections to deficient settlements or excessive attorneys’ fees and is committed to a class action system that works for class members.”

Chalmers’ brief in support of the motion to vacate the preliminary settlement, and Muchnick’s accompanying declaration to the court, with exhibits, can be viewed online at http://freelancerights.muchnick.net.

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Motion to Halt $10-to-$18-Million Copyright Class Action Settlement" (freelancerights.muchnick.net) Received on Thu Apr 28 2005 - 00:00:19 GMT