What's wrong with the proposed settlement in the Copyright Class Action: "In Re Literary Works In Electronic Databases Copyright Litigation"

If, like me, you are a writer who has freelanced articles to newspapers and magazines, you probably were thrilled to hear that three writers' organizations -- The American Society of Journalists and Authors (ASJA), The Authors Guild, and The National Writers Union (NWU) -- had negotiated an agreement in a class action lawsuit. This lawsuit, against databases that allegedly have used writers' works without their knowledge or consent, may result in payments to a great many writers.

But, after reading the proposed settlement agreement, and thinking about the potential consequences to writers, I realized that this settlement might do writers more harm than good. That's because of a "Trojan Horse" provision in the proposed agreement. It looks great when you first see it. Maybe you embrace it without question or maybe you just ignore it, figuring it has nothing to do with you. Either response may be dangerous. Because, hidden inside, is something you never anticipated. This provision appears, to this layperson's eye, to give the Defendants future rights to your work by default -- FOREVER -- if you don't affirmatively demand that your work be removed from their databases. This appears to be true even if you had no idea your work ever was in the databases.

I am not a lawyer but I consulted with one. He acknowledged that what I perceived about the settlement provision was accurate. I also contacted one of the people who has been negotiating on the writers' behalf. That person did not dispute the accuracy of my reading of the provision. But this negotiator has stated a belief that this is the best writers can do. I do not agree. I believe this is worse than no agreement. And I have filed an Objection with the court. Please see below for the text of that Objection. I hope that all freelance magazine and newspaper writers will read and think carefully about the following. And please, spread the word to other writers who may be affected.

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
__________________________________________

IN RE LITERARY WORKS IN ELECTRONIC MDL 1379
DATABASES COPYRIGHT LITIGATION
__________________________________________


AMENDED OBJECTION TO TERMS OF PROPOSED CLASS SETTLEMENT AGREEMENT
BY CLASS MEMBER ANITA BARTHOLOMEW

TO: The Honorable George Daniels


Dear Judge Daniels:

I am a member of the class in this action. I object to the provision in the settlement agreement that involuntarily transfers future rights to the subject property of this litigation by default, from class members to the Defendants. I am amending my original objection to make as clear as possible my primary objection: That this provision damages class members by taking their property rights from them without their knowledge or consent. This, ironically, is the very type of damage that this class action was brought to remedy, i.e., past and current taking of property rights without class members’ knowledge or consent. The damage done by this provision is in many and possibly most instances greater than the damage caused by the infringements that this class action is intended to remedy.

Further, the attorneys representing the class have failed to notify class members that they will lose, by default, future property rights (which are not the subject of this class action), unless they act affirmatively to preserve those future rights. The failure to notify class members of this potential loss of property rights is equivalent to an action by the class members’ attorneys against class members’ interests. As such, it appears to be a breach of fiduciary duty owed to class members by the attorneys representing the class. The provision also may violate 17 U.S.C. § 201(e) and § 204(a).

I believe, but am not certain, that I have claims in Classes A, B and C. I learned of the class action through the American Society of Journalists and Authors (ASJA), of which I have been a member for approximately 11 years. I am also a former officer of ASJA. Absent information I received through my ASJA membership, it is unlikely that I would have learned of this class action or the proposed settlement, although I have written dozens of articles for a number of the publishers listed on the class action website. I did not receive a notice of any kind in the mail.

Class members who do not know that they are members of the class, or who do not know they have claims, will not file claims. It is almost impossible to determine with certainty if one has a claim by reading the information available on the website http://www.copyrightclassaction.com/. The settlement agreement itself is not available on the website. It is impossible to search the Defendants’ databases for evidence of both past and current infringement.

I have received email from, and read the online messages of, writers who, unable to find evidence of infringement due to the lack of such search capability, have stated that they do not intend to file claims. Perhaps the majority of class members do not know that the class action relates to their intellectual property. Moreover, they have no way of discovering that, in this class action, it is imperative to file claims even absent evidence. Those who are being entrusted with our representation have made no attempt to inform class members that, for any article on which a writer fails to file a claim, that writer risks involuntary transfer of future property rights.

The writings that are the subject of this class action are intellectual property but for the sake of demonstrating the effect of this settlement provision, let me substitute tangible property.

It would be as if each class member owned parcels of undeveloped real estate scattered around the world. The Defendants, who are squatters, entered onto perhaps tens of thousands of these pieces of property and used the property as if it were the squatters’ own, without the owners’ knowledge or consent, collecting rents from transients to whom they sublet.

On many parcels, the squatters have been there and gone. No evidence of their squatting remains. Where the squatters continue to secretly use the property, they are hidden. A physical inspection will not turn up the evidence of their presence. An inspection of the public records will not necessarily turn up evidence either; the records of their squatting are not public.

Yet, because of the settlement structure that the named Plaintiffs have agreed to in a class action, on each piece of property that now, or at any time since 1997, has and/or had been squatted upon, the owners of the property who do not file claims are in danger of having rights to use their property involuntarily transferred to these squatters forever. Nobody has warned them this is so.

The named Plaintiffs have agreed to accept, on behalf of all property owners in the class, not only rent for the squatters’ past use. They have granted by default, for eternity, use of all property of all class members that squatters ever squatted on at any time since 1997, unless an owner specifically demands that the squatters leave. (But remember, most owners have no way to determine the squatters are or were ever there.) This further damages the very people the class action was brought to compensate.

Intellectual property is not that different from real estate in that we writers own it and have the right to “rent it,” and to hold on to our rights unless we transfer those rights to others in writing. Most of us have no way to determine whether “squatters” are using our property. Those of us who received a notice that there is a class action were not fully informed of the effects the proposed settlement will have on our future property rights. Many of us were not informed that there is a class action. If this settlement is approved as is, most risk the default forfeiture of some or all of our property rights. Many, if not most, will lose rights without our knowledge, for no compensation.

I request that Your Honor disapprove this aspect of the settlement. I request that you send the parties back to the table to draft an agreement that settles past infringement only by default. If the negotiators want future rights, which are not a part of this suit, to be part of the agreement, each member of the class must retain the right to voluntarily transfer that property. There should be no forfeiture by default by Plaintiffs who may not even know they are Plaintiffs.

Please also see: 17 U.S.C § 204(a):
“A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”

I am a writer, not a lawyer, and I have no doubt that competent lawyers can argue a way around almost any law. But no one can credibly argue that the authors of the Federal Copyright law intended for copyright owners to forfeit their property rights without their knowledge or consent.

In the interests of fairness to all owners of intellectual property who do not know they are affected by this settlement, or have not been informed how it affects their ownership, I respectfully request that you strike the default transfer of future rights from the settlement agreement.

Thank you.

Respectfully submitted, this 8th day of August 2005,
Anita Bartholomew ________________________________________
Objecting member of the class, acting Pro se