Digital copyright gets further complicated with "levels of rights"

How a freelancer ruling complicates copyright and affects the Google Books case.

Copyright symbol

The Second Circuit Court of Appeals recently ruled on a settlement case between freelance writers and publishers — a ruling that likely will have a direct affect on the Google Books Settlement case. The Wall Street Journal quoted from U.S. Circuit Judge John M. Walker Jr.’s opinion to sum up the ruling:

Although all class members share an interest in maximizing the collective recovery, their interests diverge as to the distribution of that recovery because each category of claim is of different strength and therefore commands a different settlement value.

For more on what the ruling means and how it might affect the Google Books Settlement, I reached out to attorney and literary agent Dana Newman (@DanaNewman). Our interview follows.

What exactly does this ruling mean?

Dana Newman

Dana Newman: The case — “In Re: Literary Works in Electronic Databases Copyright Litigation” — was a copyright infringement suit brought by freelance writers against various electronic databases, including Lexis/Nexis, West Publishing, Dow Jones, New York Times, Knight Ridder, and others. It alleged that freelancers’ works were used without permission.

It has been pending for more than 10 years, and this most recent ruling held that the proposed class action settlement couldn’t be approved because of the inherent conflicts between the different parts of the class, who had not each been represented by independent lawyers. The class was divided up into three categories based on the status of the articles’ copyright registration:

  • Articles that were registered early — before the infringement — and were eligible for larger payouts in a litigation.
  • Articles that were registered later — after the infringement — and therefore were eligible only for small payouts in a lawsuit.
  • Articles that haven’t yet been registered, and thus weren’t eligible for any payouts.

The ruling means that class actions involving large classes of authors with different levels of rights — creating multiple subclasses — aren’t going to be certified unless each group has its own lawyers representing its specific interests. It makes these types of lawsuits very complicated and expensive to pursue.

How will this ruling affect the Google Books case?

Dana Newman: The ruling could affect the Google Books case because the same issues are at play. The underlying legal questions are the same — copyright infringement based on the unauthorized use of written works in electronic databases, and the plaintiff class is also made up of a large group of authors with differing degrees of rights based on when the works were registered. In the Google case, there are also other differences within the class, including U.S. versus foreign works, commercial versus academic, and located authors versus orphan. And there is also a single group of lawyers representing all of the differently situated authors.

Is the Google Books settlement completely dead?

Dana Newman: The chances of the Google Books Settlement going through as currently proposed are pretty much nil at this point. The same objections about the conflicts within the class will be raised, which means to achieve a settlement they’d have to successfully renegotiate and separate out the different categories of works, ensuring adequate protection for each group.

The long, complicated and expensive journeys of these cases through the court system illustrate the difficulty of determining and protecting author copyrights in the digital age.

This interview was edited and condensed.

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