Congress Considers Information Age Solutions in Copyright Laws

by Irvin Muchnick‚ Jul. 21‚ 2009

Last week brought one of those quirky stories, combining legal confusion and Big Brother overtones – the kind technology journalists love to bat around., whose Kindle appliance is taking the book industry by storm, discovered that it hadn’t acquired the electronic rights to George Orwell’s Animal Farm and 1984, which Amazon was already marketing on Kindle. Amazon immediately pulled the books out of its e-catalogue and remotely expunged them from the Kindle accounts of customers who had purchased them. The New York Times retailed the anecdote with a cheeky and predictable headline, highlighting the irony of invading privacy in the name of the master literary chronicler of totalitarianism.

As lead respondent in a writers’ rights dispute now before the U.S. Supreme Court, I have a dog in this fight. Some of the issues of Reed Elsevier v. Muchnick dovetail with questions about a proposed settlement in federal district court of a class action sparked by Google’s project to scan and market books online.

The first step in untangling all this legalese is to filter out the privacy alarms raised by the Amazon story. Without dismissing this element, I think other worthies, like San Francisco’s Electronic Frontier Foundation, can more competently address it.

What I ask you to focus on here is a different question, one that established for-profit media companies have spent more than a decade co-opting and manipulating: how to harness the marvelous tools of digital technology for the benefit of everyone.

One such entity, Thomson Gale (a division of the giant Thomson Corporation out of Toronto), once went by the very name “Information Access Company.” Like Lexis Nexis and others, it markets databases of articles originally published in newspapers and magazines. Apparently, the former IAC never cared that it was distributing and selling a significant subset of the database articles – those written by freelance writers, who by law retained copyright in them – without our permission and without compensation.

It was we writers who were the enemies of access. Not Thomson. They, after all, were Information Access Company.

A lot of librarians and consumer advocates fell for this legerdemain. For example, Stanford law professor Lawrence Lessig spearheaded the Copyright Commons, which I recognize as a positive innovation; the Commons concept makes it easier for reusers of copyrighted works to get permission and for rights holders to grant it. But so far as I know, Lessig didn’t lift a finger explaining to the public the difference between the Disney Corporation and independent writers, photographers, graphic artists, and videographers. In his gospel (spread by that well-known tribune of the people, Wired magazine), we are all greedy and short-sighted Mickey Mouses seeking to gouge good-faith reusers for “every bit and byte.”

Documentary filmmakers, whose stock-in-trade is cutting and pasting snippets, which involves permissions red tape, were especially susceptible to corporate info-speak. Going beyond Lessig, the celebrity PBS director Ken Burns even supported publishers and opposed writers in the landmark 2001 Supreme Court case, Tasini v. New York Times, brought by National Writers Union President Jonathan Tasini.

The Tasini plaintiffs won their point of law in a slam dunk. But the publishers didn’t care about no stinkin’ law. Encouraged by cyberspace gurus who failed to grasp the role of new tech in correcting the power imbalance between writers and publishers, the losers shrugged off their defeat like a flea. Their lawyers simply drafted new freelance contract language to trump copyright law, forcing non-staff contributors to sign over all rights in perpetuity to publishers as a condition of getting assignments.

Meanwhile, the infringements of the past became the subject of class action lawsuits. Reed Elsevier v. Muchnick is the Supreme Court’s handle for the federal courts’ consolidation of those cases. In October the Court will be hearing oral arguments on a technical sideshow, the jurisdiction of the federal courts over settlements involving works not registered with the Copyright Office. (By then, the justices likely will include Sonia Sotomayor, who as a district court judge ruled in favor of the publishers in Tasini v. Times and got resoundingly reversed on appeal.)

I lead a slate of objectors to the terms of the freelance settlement, which was engineered by three writers’ organizations. Playing point for the settlement plaintiffs was the Authors Guild, also one of the driving forces behind the Google Books settlement. The Google case is currently being held up by a combination of multi-faceted objections and a Justice Department antitrust investigation.

Is there is a better way? I believe there is, and I think Amazon’s difficulties with Orwell illustrate it. At this moment in American information history, what we need is a comprehensive and one-stop solution to these thorny rights problems. The solution would include the two features of music industry licensing that evolved more than half a century ago after the advent of recording equipment and radio: a “compulsory license” and a fair and equitable standard royalty system.

A compulsory license means that anyone reusing a copyrighted work – whether Amazon or you or I – is assumed to have permission without having to negotiate with the rights holder, who might be difficult to find, or even dead.

A fair and equitable royalty system means that, in gaining automatic permission, a licensee also automatically pays a fee to a central registry. These admittedly complex, but eminently doable, arrangements require comprehensive negotiations, bringing inside the tent all the stakeholders in the contemporary information revolution: creators, publishers, and consumers.

Of the two writers’ class action settlements now being litigated, one – Google Books – provides for a royalty system. But both settlements bungle the compulsory license part. Even the royalty system in Google is privately – not publicly – conceived, advantaging only the particular parties in that case.

In lieu of compulsory licenses, both settlements seek to ratify “licenses by default”; that is, unless members of the plaintiff class affirmatively step forward to block access to their works, they are assumed to be granting permission for the defendants to use them in perpetuity. But a class action lawsuit is about redressing damages. It is not about turning the settlement into the product-development and marketing arms of the same defendants who inflicted the damage in the first place.

The right setting for codifying compulsory licenses and royalty systems is not the courts. It is the United States Congress. The last copyright overhaul by legislators was in 1976, when the Internet wasn’t even a gleam in Al Gore’s eye.

On October 7, the Supreme Court will hear oral arguments in Reed Elsevier v. Muchnick. Coincidentally, the Google Books settlement fairness hearing will be held in U.S. District Court the same day. The judicial stars are aligning.

Now Congress needs to step up and do its job by ensuring that the information superhighway gets paved with a donkey trail of rights and dignity. Whenever good law does get written and followed, every stakeholder will have to give up something. Publishers will lose their stranglehold over freelancers. Consumers will have to trade a little bit of privacy for a lot of convenience and empowerment.

Some of my writer friends also will have to get their heads out of the 19th century and into the 21st. Compulsory licenses – real ones, transparent ones, derived fairly and openly rather than by fine-print lawyer tricks – will be good for all of us in an age when a photo, an article, or a book is just a mouse-click away.

Irvin Muchnick blogs at and tweets at, and is author of the forthcoming CHRIS & NANCY: The True Story of the Benoit Murder-Suicide and Pro Wrestling’s Cocktail of Death.


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