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Late Justice

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by Lee Foster, Author, An Author’s Perspective on Independent Publishing

Lee Foster

After almost 20 years, a writer receives compensation for copyright infringement.

A check for $2,935.66 appeared in my mailbox on April 30, 2018. The check was for a little late justice, about 20 years after the offense. Checks of varying amounts went to 2,494 of my fellow writers, who received portions of a $9,456,000 legal settlement funded by thousands of offending publishers.

This has been the most dramatic example in my lifetime of writers standing up for their infringed rights and receiving some compensation, suing publishers who knew they were in the wrong but went ahead anyway for their profit. The case was called the Copyright Class Action Lawsuit. Some of the public announcements since 2011 about it can be seen from the Claims Administrator at copyrightclassaction.com. The more precise name of the case is Literary Works in Electronic Databases Copyright Litigation.

The issue goes back to the 1980s and1990s. Copyright law and custom at the time dictated that freelancers selling content to magazines and newspapers were selling one-time print rights. I sold content in that period to almost every major travel magazine and newspaper in the US. With the birth of the internet, however, publishers had a potential new income stream. They could put the print articles into electronic databases and sell them there. Publishers did not have the legal right to do this, but they did have an opportunity to profit.

Publishers could have gone back to their writers and secured a license for the new electronic rights they wished to exploit. I encouraged publishers in my circles to do that. But most believed that would have been too messy. Besides, writers would have wanted, of course, compensation. Most publishers went ahead with the advice of their attorneys, which was: Just do it; publish your print content in online databases, make money, and wait to see if the writers sue you.

The US Supreme Court stepped in in 2001 (New York Times Co. v. Tasini) to affirm that owners of online databases and print publishers had indeed infringed the copyrights of writers by reproducing their work electronically without first getting their permission. A settlement would need to occur, but writers would have to band together to achieve it.

The class action to force a settlement started in 2001. Advocacy organizations, such as The Authors Guild and the American Society of Journalists and Authors, led the way. Many individual writers, including myself, joined the movement.

Getting writers organized is not easy. It is difficult to get writers to agree to pursue any cause. Getting writers on board for a political effort of this magnitude is sometimes compared to herding cats. But, in this situation, enough writers did get mobilized by 2002 to mount a credible case. The case wound its way through mediation and then the courts in an especially tortured path. Publishers fought it every step of the way, with considerable legal assets.

The process for filing a claim was extremely tedious and had to be completed by September 2005. It took many hours of my time and that of my editorial assistant. I had published in almost all the leading travel magazines and newspapers in the 1980s and 1990s, and the custom was they would often send me clips of the publication. I had boxes upon boxes of these clips. I had to get them all organized and photocopied to substantiate my claims. My costs in my time and the salary of my assistant were substantial. I ended up with 146 documented claims of infringement.

The Supreme Court stepped in again in 2010 to clarify that the case could go forward for both “registered” and “unregistered” published writings. Registration with the Copyright Office was the secure route for writers to protect copyright, but most writers had not done this for most of the articles in question. This entire struggle occurred within a context-the gradual electronification of media, the transition from print to print-plus-electronic-publishing.

I had been watching and participating in this electronic publishing revolution with acute interest from roughly 1980. It was disappointing to me that in the 1990s the publishers just went ahead illegally, rather than spend money to acquire rights. Writers would have welcomed a small additional payment for the right to use their content in electronic databases. But most publishers determined that would be too difficult. I was not a Luddite wishing to smash the machinery. I delighted in the new machinery. I encouraged publishers to do the right thing, but few took my advice.

That revolutionary period of the 1980s and1990s in many aspects of electronic/internet publishing was an exciting and dramatic time. I had put all my travel writing on CompuServe in 1983 in return for a 10 percent royalty on their premium content fees, and they sent me a check each month between 1983 and 2001. I published a travel guidebook in that era, ironically about Silicon Valley, that was one of the first printed books ever laid out from the author’s computer disks. I had a CD-ROM product published in 1993 about my California travel content, called California Travel, which had 750 photos in it, something no physical printed guidebook had ever achieved. I had one of the first viable travel websites (still up today as fostertravel.com) when the internet broke in roughly 1995. Because of my expertise, the New York Times asked me for three years in the 1990s to write an annual eight-page special section for them on travel and the internet.

I’ve also prided myself over the years on having good relationships with all my publishers. Publishing is a complicated process. For it to be profitable, successful, and sustainable for all parties, good things must happen for all. I’ve had travel photos is more than 300 Lonely Planet books and have recently done a third of a big travel book on California, titled Back Roads California, for the current leading worldwide travel publisher of books, Dorling Kindersley. I’ve had good relationships with all the magazines and newspapers that I’ve worked with over the years.

But on this infringement issue, I could not say to my friends in publishing at the Los Angeles Times or Travel + Leisure that this was OK. They did not have the right to use my content and the content of their other contributors in this new electronic opportunity without an agreement and compensation. But they went ahead anyway.

I cheered on writer Jonathan Tasini as he pushed forward his landmark case, arguing that electronic rights remained with the creator unless purchased by the publisher. He was eventually victorious for all writers in the landmark 2001 Supreme Court case, referenced above, that bears his name. After that 2001 Supreme Court decision, publishers tightened up all of their contracts for the future, requiring writers to give them print and electronic rights. Whether writers succeeded in negotiating a better price for their work in the new contracts is a debatable question.

So now, 17 years later, I and the other writers finally got a little cash compensation, after all these years. How much did the offending publications earn from content they sold illegally in electronic databases? I wish I knew. What would perhaps 10 percent of those many sales be worth, even rejecting the call from many of my writer colleagues for 50 percent of the revenue? I wish I knew. 2018 dollars are not worth as much as 1990s dollars. That is another reality.

The public can glimpse a bit of this seemingly eternal struggle by following the tortured reports of the Claims Administrator from 2011-2018 at copyrightclassaction.com. There is even an alphabetical List of Publications, A-Z, from the offending publishers. The numbers are staggering. For the letter T, for example, as in travel, there are 2,309 offending publications. Publishers fought the final resolution and payout on the case every step of the way. At one point, publishers challenged 41,000 claims of infringement. Each and every one had to be resolved, delaying the final payout.

In what may be the irony of all ironies, I received a press release recently indicating that April 26, the day the checks were sent, is also, coincidentally, in a calendar of annual events, a celebration called World Intellectual Property Day.

Lee Foster is a successful travel and literary book author who has 18 books on his Amazon Author Page, including four indie books. He has more than 250 worldwide travel writing/photo articles on his website at fostertravel.com and has published in all the major US travel magazines/newspapers.

For more information about copyright, check out this IBPA Independent article, “A Few Lessons in Publishing and Copyright from 2017.”

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