Freelancer Litigation from 1990s Has No End in Sight

Front page of an old New York TimesAs Jonathan Tasini’s lawsuit against HuffPo and Arianna Huffington for unpaid blogging is still in its early stages, we have a story by Joe Mullin of PaidContent.org that reminds us how slow the wheels of justice turn: Court Rejects Freelancer Settlement: Still No Payment From Tasini Court Win

Ten years ago, Tasini won his landmark U.S. Supreme Court case against the New York Times for infringing the copyrights of freelance writers by putting material they had written in an online database. Huh? How could that happen? Well, when the NYT contracted with those freelancers back in the Stone Age (early 1990s), the geniuses at the NYT only bought rights to reproduce the stories in the printed newspaper. They had no clue they might want someday (i.e., just a few years later) to republish them electronically.

While Tasini himself has been paid, there’s still no settlement of the subsequently filed class action that sought to use Tasini as precedent to get recoveries for all the other freelancers against the New York Times and likes of Westlaw and Lexis/Nexis. The latest is that the Second Circuit Court of Appeals has just thrown out a settlement agreement that seemed like it might actually put everything at rest. Now its time for a fresh start back in district court.

The original Tasini lawsuit goes back at least to 1997, when some district court judge name Sonia Sotomayor granted summary judgment to the New York Times. She got the analysis wrong, by the way. That’s not only my opinion, it was also the opinion of the Second Circuit Court of Appeals in overruling her in 1999 and the U.S. Supreme Court upholding the appeals court in 2001. The good news is that Sotomayor may get a second chance to get it right, since, of course, she is sitting on the U.S. Supreme Court. That’s because Sotomayor has moved on in life, even if this litigation hasn’t.

This is how Mullin sums it up:

What looked like a solid and promising win for writers in 2001 may just be another indication of how copyright in the digital age is turning into an overcomplicated mess, to no one’s benefit but lawyers. It may still be years before the writers get paid.

That’s a rosy view. But as much as I would agree that copyright in the digital age is an overcomplicated mess, I don’t think this suit is an indication of that. The truth, in my view, is far worse: This suit’s another indication of how our entire civil litigation system is an overcomplicated mess.

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