Lest we forget that citizens are fighting a (so-far losing) battle with corporations, let this serve as a reminder.

In 2001, the National Writers Union filed a copyright infringement lawsuit against a host of publishers including the New York Times. The freelancers argued that when they sold stories for print distribution, they did not agree nor were compensated for the electronic re-distribution of that content through paid databases such as Factiva. The so-called Tasini case (named for lead plaintiff Jonathan Tasini) went to the U.S. Supreme Court, which ruled in favor of the freelancers. In 2005 the freelancers negotiated a financial settlement that included “a compensation pool of $18 million, which has not yet been distributed,” according to a Wikipedia entry on the matter (it has links to the court rulings).

But now that money may never be paid, because if you thought the Supreme Court was, well, supreme, think again.

Despite signing that 2005 settlement, corporate publishers challenged the award. A federal appeals court recently ruled 2-1 in their favor that the $18 million settlement is unenforceable. According to a New York Times article the decision turned on the difference between registered and commonlaw copyrights.

Here’s the background. Under U.S. law all artistic works are copyrighted at the moment of creation. Authors used to do things like mailing themselves copies of manuscripts, keeping the envelopes unopened, to prove creation date. That’s a common law copyright The neater and legally-stronger way to protect creations, however, is to file copyright forms and pay fees, something that newspaper and book publishers do routinely — but individuals do rarely, if ever. (Are you a writer? Have you ever paid to register a copyright?)

With that in mind, it makes sense when the Times story quotes the heart of the decision:

“The overwhelming majority of claims within the certified class arise from the infringement of unregistered (i.e. common law) copyrights,” Judge Chester Straub wrote for the majority. “We have held, albeit outside the class-action context, that district courts lack statutory subject matter jurisdiction over infringement claims arising from unregistered copyrights.” (added)

In other words the freelancers 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!

 To read the legalese please visit Paid Content, where editor Rafat Ali thoughtfully links to the decision and the dissent.

But I prefer to think of this decision symbolically. Two federal judges have just flown over the upturned faces of freelance writers, lifted their black robes and taken crap. Um. Yummy. Thanks, your Honors!