Tasini, Further Developments?

[Ann Okerson <ann.okerson@yale.edu>]

The clip below is reproduced from a recent issue of Library 
Journal's e-edition, the only place I'd seen reference to this 
new ruling about the Tasini settlement.  Anyone else surprised? 
Ann Okerson/Yale Library

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Freelance Writers "Outraged" as Appeals Court Voids Settlement in 
Tasini Case

The Second Circuit Court of Appeals last week voided a March 2005 
settlement agreement between freelance writers and publishers 
following the landmark 2001 New York Times v. Tasini Supreme 
Court decision, a ruling that found publishers had violated 
freelancer's copyrights by using their works in electronic 
databases without permission. The Second Circuit, in a 2 to 1 
decision, ruled that under U.S. copyright law, although no 
registration is necessary to secure copyright, registration is 
required to sue for damages. Because the overwhelming majority of 
freelance writers' works included in the settlement were not 
registered, the Second Circuit held that the District Court was 
wrong to approve payments under the negotiated settlement.

"The precise issue on appeal is whether the District Court had 
jurisdiction to certify a class consisting of claims arising from 
the infringement of unregistered copyrights and to approve a 
settlement with respect to those claims," the decision reads. "We 
hold that it did not. We therefore vacate its order and judgment 
and remand the case for proceedings consistent with this 
opinion." In a dissenting opinion, however, Chief Judge John M. 
Walker argued that the non-registration should not disqualify the 
agreement, holding that registering for a copyright was more like 
a "claim-processing rule" than a "jurisdictional prerequisite."

The ruling voids a deal in which publishers' agreed to pay a 
minimum of $10 million and a maximum of $18 million to writers. 
Notably, in an FAQ on the claims site for writers freelancers 
were explicitly told copyright registration was not needed, and 
both sides in the settlement had agreed to compensate writers for 
unregistered works. "Even if you did not register the copyright, 
you would still be eligible for cash compensation in the 
Settlement," the FAQ notes, citing a "Category C Compensation for 
unregistered Eligible Works." The modest settlement would've paid 
as much as $60 for unregistered works sold for $3000 or more and 
as little as $5 for works that were written for less than $300.

Gerard Colby, president of the National Writers Union, declared 
the second circuit decision "an outrage," saying the court 
essentially affirmed that "unregistered writers can't sue for 
anything, even compensatory damages." The Second Circuit's 
decision, meanwhile, does not affect the Supreme Court's ruling 
that freelance writers' copyrights were infringed. It could 
affect, however, how many writers benefit from that decision and 
will likely send attorneys back to the slow, costly drawing legal 
board for freelance writers.

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