Robertson v. Thomson - January 18, 2010 Class Action deadline likely to be extended

The deadline of January 18, 2010 for potential claimants in the Robertson v. Thomson class action has now come and gone. Apparently, and not altogether surprisingly, most of the potential claimants missed it.

This case, which went to the Supreme Court of Canada, involved a class action claim for the unauthorized inclusion of articles in certain databases that were written by freelance writers for a host of publications including the Globe and Mail, the National Post and, as recently realized, the Toronto Star, not to mention numerous academic journals.

I understand that only a few hundred people filed timely claims, out of an estimated potential pool of five to ten thousand freelance contributors to the many publications referred to in the law suit, including, as was only realized a few days before the deadline, the Toronto Star and Hamilton Spectator.

Under normal principles, since the settlement had been approved by the Court and notices had been published in accordance with the Court's requirements, the relatively small number of claimants would share settlement proceeds of $11 million less amounts parable to the class action lawyers ($4,000,000), notice and administration costs, 10% of net proceeds of the case to the Law Foundation of Ontario for financial support of the case, etc. A sizable chunk would still be left for the actual writers. The estimated amount available to writers in the settlement fund is about $5.5 million. The maximum payout to any writer is about $55,000.

More here and here and here.

I've been told by a lawyer involved in this process that the class action counsel have asked the Court to extend the deadline for filing a claim, and that this shortly will be announced and is likely be an extension of at least 60 days.

This makes sense and is the responsible thing to do. This apparently takes into account of the very late realization that the Toronto Star freelancers should have included, the timing of the final approval of the settlement and the notice period for filing, much of which took place over the Christmas season, and other factors that may have prevented or discouraged hundreds or thousands of potential claimants to file. The newspaper notices for those that read them were published on October 3, 2009 with an Opt Out deadline of November 2, 2009 and a claim deadline of January 18, 2010. Since a lot of people read their newspapers online today (how ironic), many writers may never have seen these notices.

One of the difficulties for many potential claimants will be the provision of required details of past publications, since freelance writers do not always keep meticulous records and, rather ironically, do not have access because of the high cost to the very databases that are the very subject of the litigation. I understand that many public libraries do have access to these databases, which may help. Moreover, the Class Action claim form itself is not for the faint of heart.

Details of the litigation, the settlement and the claims process, along with a list of the relevant publications can be found here for class counsel (Koskie and Minsky) and the settlement administrator (Cole and Partners).

This is the first concluded major class action in Canada involving copyright. It won't be the last. While there are many ways in which the notification mechanism for the settlement might have been improved, class counsel and the administrator did the right thing by seeking an extension in order that those entitled can put in their claims.

It is important that these class actions get off on the right foot by actually benefiting those who have bee wronged and that such persons are given all reasonable notice, information, material and assistance to facilitate their claims.

So - writers of all kinds take note. There's about $5.5 million dollars out there to be shared by a few thousand writers based on a formula approved by the Court. If you do your homework, that may amount to a few beers or even more. Maybe enough to cure some cases of writer's block.

HK

Tasini Redux

The Tasini case is back in the US Supreme Court. It will be recalled that the authors won a victory of sorts several years ago and the US Supremes rendered a judgment that strongly encouraged a settlement so that important databases could remain intact.

The trouble is that the Second Circuit Court of Appeals refused to approve the resulting $18 million settlement on the basis that it had no jurisdiction to deal with unregistered copyrights in a class action where the "overwhelming majority of claims within the certified class" were, not surprisingly, unregistered:

...we first ask whether the Copyright Act’s registration requirement is jurisdictional and 15 then ask whether each claim within the class must satisfy that requirement. We answer both 16 questions affirmatively

The Court will hear this case on the narrow point of " “Does 17 USC 411 (a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions?” Note that the section applies to US works and not foreign works.

Actually, this point is potentially not that narrow because it may require deeper scrutiny of the the rather confusing registration provisions of the US legislation, which are far less important though by no means irrelevant to foreign copyright owners. The issue of the Berne Convention came up en passant in the Circuit Court.

Here's a good discussion by a new blogger on US Law (at least new to me), Ben Sheffner, whose blog is avowedly "from a pro-copyright-owner perspective." I've added his blog to my blog roll. He makes a valiant but doubtlessly futile effort to draw Bill Patry back into the blogosphere on this issue.

HK