In that 2001 decision, New York Times Company v. Tasini, the Supreme Court seemed to contemplate and even encourage a settlement of the case, saying that the parties “may enter into an agreement allowing continued electronic reproduction of the authors’ works.”
After the Tasini decision, many freelance works were removed from online databases. Most publishers these days require freelance writers to sign contracts granting both print and online rights.
In an effort to settle the original copyright infringement claims, authors, publishers and database companies undertook four years of what they said were intensive, complex and costly negotiations. In the end, the defendants agreed to pay $18 million for a global settlement of all claims in four class actions to two groups of authors — those who had registered copyrights in their works and those who had not.
The second group was by far the more numerous. But the federal copyright law allows suits claiming copyright infringement only after works are registered.
In November 2007, a divided three-judge panel of the United States Court of Appeals for the Second Circuit, in New York, declined to approve the settlement, saying it did not have jurisdiction over the claims of the second group of authors.
The question for the Supreme Court this time is whether courts may approve global class action settlements that include claims they would not have had jurisdiction to decide.
Many authors supported the settlement, but some objected. The objectors said that authors who had not registered their works were treated unfairly because their share would be reduced if there was not enough money to go around.
But all concerned urged the court to hear the case, Reed Elsevier v. Muchnick, No. 08-103.
A brief for one group of authors said that most freelance writers “will not spend $35 or $45 to register a year’s worth of works” to bring a lawsuit over “articles they sold years ago for $50 or $100.”
“With no comprehensive settlement in place,” the brief added, “the
publishers and databases will have no choice but to search for and delete
whole swaths of freelance works from their digital archives, or risk
repetitive litigation over the same dispute the parties sought to settle in
this case.”