Last week, I received a cash settlement in a copyright-infringement complaint. A unit of Reed Elsevier, the dangerously-overlarge scientific and technical publisher, twice admitted infringement of materials whose rights I owned that were published in one of its books. And not only did they admit infringement, I got them to pay up.
(A pronunciation note: “Elsevier” is a Dutch word, not a French one. It’s pronounced “Elsaveer” in English.)
This is actually quite an achievement. In my verbal shorthand (you know how much I love my catchphrases), I describe Elsevier as “notorious copyright arseholes.” The primary complaints involve the so-called Big Deal, in which Elsevier forces libraries to pay through the nose for bundles of journals. Moreover, for nearly all of its technical journals, authors must turn over copyright of their own work to Elsevier just to get it published (except on “rare occasions”).
I am a self-described copyright zealot. I allow people to read and enjoy a lot of my work on the Web, because I have the right to do that. But I retain all other rights – and boy, do I guard and exercise them. I’ve had a supremely competent copyright lawyer for more than eight years. Another of his recent settlements involved a famous hiphop star, and the first instalment of the settlement was US$125,000 (with a $250,000 floor and no ceiling). We’ve turned down atrocious contracts – even though that meant the project never went anywhere.
Above all things, you must own your own work.
You may not be aware that I fought a battle in the mid-’90s concerning copyright. I was apparently the very first freelance writer to receive the Globe and Mail’s contract, which demanded I sign over past and present rights. The same demands were made by other publishers, including the Economist. I turned them all down flat. I stood up for myself and for all the losers who thought “exposure” was somehow more important than owning their own work. As the saying goes, people die of exposure.
I nearly did, too, but of the opposite. Because of the immediate gutting of my freelance business, and despite support from others, I ran out of money and couch-surfed for a year. (If you read enough of the archives on my various sites, you will have read the diary of that Year of Living Dangerously.)
To this very day (to the very day I deposited the settlement cheque!), enemies and detractors have attempted to use this Year against me. Just try it now. Remember, I’ve got great legal counsel.
I have suffered for copyright. Because, pace Clive Barker, if you are an artist without children, your artworks are your children. I’m not about to sell them off to a virtual database.
In any event, we won, eventually: Tasini v. New York Times permanently outlawed forced contracts that attempt to extort all rights from freelancers. (Yes, it was a U.S. case, but the principles are nearly identical here. Secondary rights must be negotiated. That doesn’t mean publishers don’t keep trying to extort rights from freelancers; what’s changed is that you now have superb precedent to tell them to go fuck themselves. And yes, I am part of the class involved in the class-action suit against Thomson, publishers of the Globe in the 1990s. We’ll prevail there, too.)
So: Whenever you get tired of well-funded Cory Doctorow yammering much too loudly and forcefully about copyright, think of me. “EuroCory” simply annoys; I simply win.
In the current case, I discovered that a book published by an Elsevier imprint used four of my works without permission. I gave the author a chance to explain; it later turned out that the author had nil to do with it and knew nothing of it until I brought it up. For that reason, I’m providing no identifying details. (Speculate if you wish, but I will not respond.) It’s Elsevier’s fault, not the author’s.
The author contacted the publisher, who replied that they were looking into it. A short while later, another response came through in which the publisher admitted infringement (calling it “inadvertent”) and offered a pittance in compensation.
Little did they suspect that I know my shit cold and have high-powered counsel. We wrote back, pointing out some interesting facts (including their admission of infringement), and offered to settle for a $X. The publisher responded with a second admission of infringement and noted that $X was twice the market value of the works even considering double or treble billing for unauthorized and uncredited use. Based on my experience, the publisher’s claims were correct, so we were all satisfied to settle for $½X. The publisher also paid my legal expenses.
We adjudged that this outcome was better than being greedy and suing the bastards. Even though we would have won and emerged with a larger settlement, the counteroffer was fine and represented reduced aggravation. It was a fair settlement, not the most lucrative one. Copyright is about the fair balance of creators’ and users’ rights. Our settlement honoured that principle.
But it gets better: There is no gag order, so I am free to tell you that, if you’ve ever had to fight the notorious copyright arseholes at Elsevier, it is entirely possible to beat them. In fact, my lawyer gets quite a good repeat business out of me and my friends, so if you ever need help, let me know and I’ll hook you up.