I haven’t had a chance to thoroughly digest the ruling, but many of the points Judge Denny Chin made in rejecting the settlement were taken from arguments made by objectors to the Google Books settlement, and by the Department of Justice.
Just as interesting, many if not most of Judge Chin’s reasons for rejecting the Google Books settlement are mirror images of the arguments made to the 2nd Circuit Court of Appeals by the Objectors to an earlier, uglier writers’ class action settlement, Reed Elsevier v. Muchnick, (aka “Freelance”). For more about that case, see Irv Muchnick’s excellent blog on the topic.
Here’s a snippet from Judge Chin’s ruling:
“While it is true that in virtually every class action many class members are never heard from, the difference is that in other class actions class members are merely releasing “claims” for damages for purported past aggrievements. In contrast, here class members would be giving up certain property rights in their creative works, and they would be deemed — by their silence — to have granted to Google a license to future use of their copyrighted works.”
If you were to substitute the names of the defendants in the Freelance case for the name Google, above, you’d have the identical situation. This is why, several years ago, I filed an objection to the Freelance settlement, and joined the other objectors in appealing its approval. I hope the same fate befalls Freelance as did Google. Writers’ future rights should not be taken from them and handed over to those who are accused of past infringement. That’s not a settlement. If approved, it would amount to legally sanctioned theft.
- Anita Bartholomew
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