When Berkeley, Calif., author and journalist Irv Muchnick rolled into Connecticut recently to sign copies of his latest book, Chris & Nancy: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death (ECW Press), he was the lead story on the six o’clock news. Not because his book is a runaway bestseller, but because it has unexpectedly landed in the middle of a testy Republican primary, where Linda McMahon, wife of Connecticut-based World Wrestling Entertainment kingpin Vince McMahon, is using her personal fortune to bankroll a run for the retiring Chris Dodd’s Senate seat—a fortune Muchnick says is derived from an unregulated, billion-dollar business known to be unsafe, steroid-ridden, and tragically violent. So far, the McMahon campaign has chosen to ignore Muchnick. But the campaign might take note: Muchnick doesn’t mind fighting a long, unpopular fight.
Since 2005, Muchnick has been the lead objector to a proposed settlement stemming from the central rights dispute of the digital age—Tasini v. New York Times—the landmark case in which members of the National Writers’ Union sued the newspaper and some electronic aggregators for, well, piracy. For those who think the other major digital rights case of today—the Google settlement—is close to resolution, consider this: Muchnick joined the Tasini case in 1994. In 1997, as a district court judge, Sonia Sotomayor ruled in favor of the defendants. In 1999, an Appeals Court reversed Sotomayor. In 2001, the Supreme Court affirmed that reversal. Four years later, in 2005, a settlement was announced. It was quickly approved, but Muchnick, and a handful of other objectors, including Anita Bartholomew, represented by Charles Chalmers, appealed. The Second Circuit heard the appeal—but ignored the objections, and surprised everyone by rejecting the settlement on jurisdictional grounds, saying the court could not approve payments to writers with unregistered copyrights. Finally, on March 2, 2010, the Supreme Court reversed, paving the way for unregistered copyright holders to join the class, and sending the objectors’ appeal back to be heard on the merits, with a new name: Reed Elsevier v. Muchnick.
To be sure, class action is unwieldy. Muchnick, for example, has just spent years fighting to revive a settlement so he can sink it in a lower court. But after 16 years, he is being buoyed by the discussion surrounding the 2008 Google settlement. “We have to remember,” Muchnick told PW, reflecting on the saga, “neither Rome nor ASCAP was built in a day.” PW caught up with Muchnick to talk about his epic copyright case.
PW: For readers who may be unfamiliar with or forgotten this long-running case, can you briefly remind us what this is all about?
Irving Muchnick: Late in 1993, Jonathan Tasini, then president of the NWU, and several co-plaintiffs filed a copyright infringement suit against the New York Times Company, the owner of LexisNexis at the time (Mead Data Central, I believe), and other print and electronic publishers. The plaintiffs were all nonstaff writers for newspapers and magazines, whose articles had been resold in electronic databases without the writers’ permission or compensation. The issue was whether these practices violated Section 401(c) of the Copyright Act. The plaintiffs argued, and the Supreme Court ultimately agreed, that without an explicit agreement otherwise, writers retained copyright in their works and licensed to a first-print publisher rights to use their work one time, or in subsequent editions of the same “collective work.” Databases marketing individual articles could not be considered revisions of the collective work. Meanwhile, in August 2000, several similar class actions were filed. I consulted for the first of these, Posner et al. v. Gale Group et al. After the Supreme Court decided Tasini, these class actions were combined into an “MDL” (multi-district consolidation) now commonly called Freelance. In 2005 the Freelance parties settled, and that settlement is what I and other objectors are now arguing against.
PW: What are the merits on which your appeal now hinges?
IM: There are two main elements: the first is the “license by default.” The settlement cedes the intellectual property and rights of absent class members who didn’t participate in the settlement, in most cases because they didn’t even know about it, or didn’t grasp its scope and implications. The second element is the regressive distribution of the settlement fund. While holders of registered copyrights deserve to be compensated at higher levels, the disparities between the subclasses are ridiculous. And if the settlement fund is busted by claims from those with registered copyrights, those with unregistered claims will see their already puny compensation reduced—even eliminated. The defendants needed a comprehensive settlement for “complete peace,” but the plaintiff class representatives gave the game away by agreeing to treat those with unregistered copyrights as if they were insignificant, when, in truth, they are indispensable. Now that the Supreme Court has ruled with clarity that writers with unregistered copyrights can be in the settlement, I’d like to see those writers, who represent 99% of the class, get peanuts, at least, rather than peanut shells.
PW: You’ve been criticized by some as an “obstructionist” since 2005 for holding up the settlement. But with Google and the attention it has drawn, has that perception begun to change?
IM: I think it has, to some extent. But there are still a lot of writers who are very angry at me. I hear their frustration, and I understand it. Some of them say they are waiting on real money. I don’t feel great about that. But I would point out that this is a very, very small number of freelance writers, and in order to get that money, they are forcing others to forfeit their rights. You just can’t do that. There’s one guy who keeps pounding me on e-mail, saying he’s waiting on $120,000. But again, if there are 100 people like that, with $100,000 in claims, the settlement fund, which is capped at $18 million, is busted.
PW: Your “license by default” objection is identical to the one made by Google objectors. How much do these two settlements bear on each other, in your opinion?
IM: I believe that, from a practical standpoint, the root issues in the two cases are identical, and that they should be coordinated in some fashion. Before the Supreme Court hearing, I wrote a letter to that effect to Attorney General Eric Holder. As things stand, the Freelance settlement has comprehensiveness but not a royalty system, and the Google settlement has a royalty system but not comprehensiveness. A generation from now, when we access snippets online, we won’t be nearly as conscious of whether they originated in articles or in books. Already three of my old magazine pieces, including the very first article I ever sold, to Baseball Digest in 1970, when I was 15 years old, have popped up on Google Books.
PW: Even though it contains a license by default, you did not object to the Google settlement. But you did opt out. Why?
IM: First, I do not regard myself as an all-purpose objection vigilante. I have a direct personal history with the Freelance case and some very specific expert ideas on how it missed the mark. But also, and this isn’t popular with my Google objector friends, I have sympathy for what the Google settlement attempts to accomplish. The settlement is flawed, perhaps fatally so. But it does include a royalty system, and the ability of an author to pull out at any time.
PW: How do you now feel about your chances on appeal? I’ll note that when the Tasini suit was won in 2001, all kinds of ruin was predicted, and many publishers began insisting on odious “all rights” contracts.
IM: I think we’ll win the appeal, if it gets that far, but I’d much rather see the existing settlement structurally improved and our objections resolved. The second part of your question touches on why I had no choice other than to object when this settlement came down five years ago. The all-rights-contract regime and the rights giveaway provisions of the settlement are a perversion of the Supreme Court’s interpretation of the Copyright Act of 1976 as articulated in the Tasini case. Rather than negotiate, since 2001, publishers have used their marketplace power and legalistic angles to deny independent creators a victory they won fair and square.
PW: Certainly, some key digital rights questions are being addressed via class action and the courts—any thoughts on that trend?
IM: [Law professor] Pam Samuelson has said it, Register of Copyrights Marybeth Peters has said it, and I reiterate it: “Compulsory licenses” are the province of Congress, not private lawsuits. When I was a litigation consultant, I had the long-term policy goal of a royalty system, but the suits themselves were not designed to achieve such a thing. They were about redressing the infringement claims of the past. Over time, I hoped, class actions would move the chains, and eventually, that the top players would get the message that a negotiated, industrywide solution was in everyone’s interest. James Grimmelmann has a great line about the Google settlement: “This is no way to run a culture.” I agree, but the inability of Congress to wrap its mind around digital copyright solutions has created a vacuum.
PW: What do you hope your legacy will be with the Freelance settlement?
IM: That we were able to move the ball down the field toward an equitable and reasonable royalty system that gives independent creators a dignified share of the money and breaks down the barriers of our two-tiered information society. At this moment, we have a system I call “intellectual property for me but not for thee.” Either private corporations hoard rights and bully users into paying for every bit and byte, or futuristic gurus fantasize about everything being free. How about, as an alternative, fair and comprehensive negotiations among all the stakeholders? How about the basis of the public library system of the 19th century, but on a new platform? Whether Reed Elsevier v. Muchnick can help achieve that, or even lay the foundation, remains to be seen.