Late Justice — the $2,935 Check I Received for Content I Wrote Twenty Years Ago

The check for $2,935.66 appeared in my mailbox on April 30, 2018. The payment 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 finally receiving compensation by suing publishers who knew they were in the wrong, but went ahead anyway.

The case was called the Copyright Class Action Lawsuit. Some of the public announcements written about it since 2011 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-1990s. Copyright law, and custom, at that time declared that freelancers selling content to magazines and newspapers were selling one-time print rights. During that period, in fact, I sold content to almost every major travel magazine and newspaper in the U.S.

With the birth of the Internet, however, publishers had a new potential income stream. Although they did not have the legal right to do so, publishers sold print articles from electronic databases without compensating the writers.

Publishers could have gone back to the writers about securing a license for the new electronic rights they wished to exploit, as I encouraged publishers in my circles to do. But most of them believed that would have been too messy. Besides, most writers would have asked for compensation.

Attorneys for the publishers advised: Publish your print content in online databases, make money, then wait to see if the writers sue you.

In 2001, the U.S. Supreme Court stepped in (New York Times Co. vs. 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. Writers would have to band together and fight to achieve the necessary settlement.

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, such as myself, joined the movement. 

Getting writers organized to pursue any cause is not easy. To ask writers on board to participate in a political effort of this magnitude would often be compared to herding cats. But in this instance, enough writers did get mobilized by 2002 to mount a credible case. The case wound its way through mediation and the courts on a tortured path. Publishers fought it every step of the way, with their considerable legal assets.

The process for filing a claim, which was extremely tedious, 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. I had many boxes of clips, and had to organize and photo-copy them all to substantiate my claims. 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 their articles’ copyrights, but most writers had not done this.

This entire struggle occurred within a context—the gradual electronification of media, i.e., the transition from print to print-plus-electronic-publishing.

I had been watching and participating in this electronic publishing revolution with acute interest, roughly from 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 who wished to smash the machinery. On the contrary, I delighted in the new machinery.

That revolutionary period of the 1980s-1990s was an exciting and dramatic time in electronic/Internet publishing. I had put all my travel writing on CompuServe in 1983, in return for a 10 percent royalty on their Premium Content fees. Each month from 1983-2001,  they sent me a check. In that era, I published a travel guidebook, ironically about Silicon Valley; it was one of the first printed books created from the author’s computer disks. I had a CD-ROM product published in 1993, California Travel, which had 750 photos, an amount 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, roughly in 1995. Because of my expertise, the New York Times asked me to write an annual eight-page Special Section on Travel and the Internet for three years during the 1990s.

Over the years, I’ve prided myself on having good relationships with all my publishers. Publishing is a complicated process; all parties want it to be profitable, successful, and sustainable. My travel photos have been published in more than 300 Lonely Planet books, and recently I’ve written one-third of Back Roads California, for the leading worldwide publisher of travel books, Dorling Kindersley.

But on this infringement issue, I could not say to my friends at the Los Angeles Times or Travel + Leisure that they had the right to publish my content and other writers’ content, through this new electronic opportunity, without a formal agreement and compensation. The newspapers and magazines I contributed to went ahead anyway.

I cheered on writer Jonathan Tasini as he pushed forward his landmark case and argued that electronic rights belonged to the creator, unless purchased from him or her by the publisher. Eventually, Tasini was victorious for all writers, in the landmark 2001 Supreme Court case that bears his name.

After that 2001 Supreme Court decision, publishers tightened up their contracts, requiring writers to give them both print and electronic rights. Whether writers succeeded in negotiating a better price for their work in the new contracts is debatable.

So now, 17 years later, the other writers and I finally got a little cash compensation.

How much did the offending publications earn from content they sold illegally through electronic databases?  I wish I knew.

What would 10 percent of those sales be worth, even after rejecting my writer colleagues’ demands for 50 percent of the revenue?  I wish I knew. Another reality is that 2018 dollars are not worth as much as 1990s dollars.

 The public can glimpse a little 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; the numbers are staggering. For the letter T, as in travel, there are 2,309 offending publications. Publishers fought the final resolution every step of the way, at one point challenging 41,000 claims of infringement. Each case had to be resolved, which of course, delayed 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, World Intellectual Property Day. Google this event to confirm that I am not making this up.