Second Circuit Deletes Freelance Writers' Deal for Online Publication

Posted by Eriq Gardner

The U.S. Court of Appeals for the Second Circuit in Manhattan has voided a deal between publishers and freelance writers that settled a class action suit over online reproduction of freelancer work. In 2001, the U.S. Supreme Court ruled in New York Times Co. v. Jonathan Tasini that newspapers, magazines, and others who published digital versions of freelancer work without permission violated the freelancer's copyright. Since then, most publishers have presented freelancers with amended contracts that explicitly grant such rights. But works completed before the new contracts were in place were not covered, and freelancers filed a class action suit to recover damages. In 2005, the two sides agreed to an $18 million settlement, but that didn't satisfy all constituents on the freelancer side. Several members of the class appealed.

Yesterday, the Second Circuit issued a tightrope-walking decision that centered on the court's jurisdiction over the matter since many freelancers didn't register their works with the U.S. Copyright Office. Without registration, the court said the freelancers didn't have appropriate standing in a federal domain to bring the case in the first place.

Sounds to us like those breakaway freelancer appellants shot themselves in the foot.

Interestingly, the Second Circuit judges had to grapple with the fact they too were, "(quite probably) members of the plaintiff class." With a touch of the Möbius strip, they issued a soul-searching second opinion that explained why they didn't have to recuse themselves before making the first one.