Class Action Settlement in Electronic Databases Case–Should I Participate?

In re. Literary Works in Electronic Databases Copyright Litigation, M.D.L. No. 1379 (SDNY). This case involves the republication of print articles in electronic databases like Westlaw and Nexis without authorization (part of the fallout from Tasini and similar cases). The parties have proposed to settle the lawsuits by paying $10-18 million. This money pays the lawyers and creates a fund to compensate class members.

Unwittingly, I am a member of the class. I have written a number of articles that may be eligible for compensation under the settlement. So the question is…should I claim them?

I have mixed emotions about participating in the settlement. Principally, I don’t feel screwed by the publishers about having my articles included in the electronic databases. Invariably, I write to reach an audience and to be validated by the publisher. It is almost never about the money, which is a good thing because I almost never get paid for my articles. So I really can’t complain about the bargain–the publishers got free content, I got their audience and validation. To the extent that having my articles included in the electronic databases extended my article’s reach, this was an added bonus for me.

On the other hand, publishers routinely handle copyright agreements sloppily. In my career, I’ve signed only about a half-dozen author agreements in my dealings with over 50 different publishers. This is true even today.

Further, some publishers (not necessarily the defendants) handle other aspects of the copyright relationship sloppily. I won’t bore you with all of my stories about publisher sloppiness, so let me just offer three:

* one publisher ran an article I had merely submitted for consideration without letting me know (I found out when I got the hard copy with my article in it…surprise!). After the article appeared in print without my consent, that same publisher then sent me an author agreement and asked me to sign it. Nice.

* publishers have authorized third party print publishers to republish my articles without my consent or any agreement authorizing the republication

* publishers routinely attach controversial headlines to my article without my consent. Sometimes they edit the article without my consent.

I’ll stop there. I could go on. Given the general sloppiness in the industry, perhaps it’s appropriate that I contribute to publishers feeling a little pain for their sloppiness.

Plus, I have these nagging feeling that I am being a sucker by not getting some cash that I am legally entitled to. We’re not talking about a lot of money. I have never registered my copyrights in my articles and I got paid for very few, so I think I’m generally eligible for $5/article. I haven’t taken the time to figure out how many articles I have that are covered. My guess is that when it’s over, I could probably get enough to treat my family to dinner at Beans & Barley. Still, it’s low-hanging fruit (it would take me some time to fill out the forms, but not a lot), and my wife deserves a nice dinner (and much, much more).

So, what should I do? What are other people doing? I’d welcome your comments and suggestions.

UPDATE: A private reply reminded me of a third choice–I could opt out of the class altogether and pursue remedies directly against the publishers. Of course, because I have not registered any copyrights, my remedies in those cases will be pretty limited, and the transaction costs would increase astronomically. So I think my choices are within the class–do I tender my claims or not?

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