Court Voids Settlement in Tasini v. New York Times

By Calvin Reid -- Publishers Weekly, 11/30/2007 2:28:00 PM

The Second Circuit Court of Appeals has thown out a settlement between freelance writers and publishers reached after a 2001 Supreme Court ruling that publishers had violated the copyright of freelance writers by using their works in electronic databases without their permission. The 2001 Supreme Court decision was reached in Tasini v. The New York Times, a case involving Jonathan Tasini, then president of the National Writers Union, and five other plaintiffs. The appellate court ruling voids a settlement that created a pool of $18 million that was to be paid out to freelance writers in an associated class-action suit.

In the 2 to 1 decision, the appellate court ruled that only writers who had registered their works with the copyright office were eligible to file claims for damage. Since the overwhelming majority of freelance writers did not register their works, the appellate court reasoned that the courts did not have jurisdiction over the dispute and were wrong to approve the class action suit as well as the subsequent settlement. However, in a dissenting opinion, Chief Judge John M. Walker, argued that registering for a copyright was more of a “claim-processing rule,” rather than a “jurisdictional prerequisite.”

Gerard Colby, president of the National Writers Union, said the second circuit was “making new law.” Colby said the ruling essentially means that “unregistered writers can’t sue for anything, even compensatory damages.” Colby said the ruling “cuts off writers from all access to the Federal courts. The issue of unregistered writers had been agreed to by all parties to the settlement.” He cited Walker’s dissent and said, “he lays it all out. We think we can appeal it to Second Circuit and if not, we’ll appeal to the Supreme Court. This isn’t just about our settlement. This is about all writers.”