LestÂ weÂ forgetÂ thatÂ citizensÂ are fighting a (so-far losing) battle with corporations,Â let this serve as a reminder.
In 2001, the National Writers UnionÂ filed a copyright infringement lawsuit againstÂ a host of publishers including the New York Times. The freelancersÂ argued that whenÂ they sold stories for print distribution, they did not agree nor were compensated for theÂ electronic re-distribution of that content through paid databases such asÂ Factiva.Â The so-called TasiniÂ case (named forÂ lead plaintiffÂ Jonathan Tasini) wentÂ to the U.S. Supreme Court, which ruled in favor of the freelancers. In 2005 theÂ freelancersÂ negotiated a financial settlementÂ that includedÂ “a compensation pool of $18 million, which has not yet been distributed,” according to a Wikipedia entry on the matterÂ (it hasÂ links to the court rulings).
But nowÂ that money may never be paid, because if you thought the Supreme Court was, well, supreme, think again.
DespiteÂ signing that 2005Â settlement,Â corporate publishersÂ challenged the award. A federal appeals courtÂ recently ruled 2-1 in their favor that the $18 million settlement is unenforceable.Â According to aÂ New York Times articleÂ the decision turned on the difference between registered and commonlaw copyrights.
Here’s the background. Under U.S. law all artistic worksÂ are copyrighted at the moment of creation. Authors used to doÂ things likeÂ mailing themselves copies of manuscripts, keepingÂ the envelopes unopened,Â to prove creation date.Â That’s a common law copyrightÂ The neater and legally-stronger way toÂ protect creations, however, is to file copyright forms and pay fees, something that newspaper and book publishers do routinely — but individuals doÂ rarely, if ever. (Are you a writer? Have you ever paid to register a copyright?)
With that in mind,Â it makes sense when theÂ Times story quotes the heart of the decision:
â€œThe overwhelming majority of claims within the certified class arise from the infringement of unregistered (i.e. common law) copyrights,â€ Judge Chester Straub wrote for the majority. â€œWe have held, albeit outside the class-action context, that district courts lack statutory subject matter jurisdiction over infringement claims arising from unregistered copyrights.â€Â (added)
In other words theÂ freelancersÂ who didn’t file the proper paperwork have theoretical copyrights, but those copyrights are unenforceable for purposes of recovering damages. And since those common law copyrights were mixed in with registered copyrights, the whole kit and kaboodle have to be thrown out. It’s the law!
Â To read theÂ legalese pleaseÂ visit Paid Content, where editor Rafat Ali thoughtfullyÂ links to the decision and the dissent.
But I prefer to think of this decision symbolically. Two federal judgesÂ have just flown over the upturned faces of freelance writers, liftedÂ their black robes and taken crap. Um. Yummy. Thanks, your Honors!