- It's relatively easy to dispose of the "representativeness" of the publisher subclass: It's not even close to acceptable. The publisher representatives designated in the proposed settlement (§ 1.125) are McGraw-Hill, Pearson Education, Penguin USA, Simon & Schuster, and Wiley. This isn't even close to representative of any of the following:
- Specialty publishers, such as Ten Speed Press
- Christian publishers, such as Tyndale
- Publishers that are not yet in business
- Publishers that have gone out of business without entering bankruptcy
- Publishers that have gone out of business through bankruptcy
- Publishers not operating in the State of New York
- Publishers focusing on reprint materials
- Publishers of works primarily distributed through non-bookstore channels
I won't belabor the point. The real problem is that all of the designated class representatives are publishing arms of multinational media conglomerates, and this is entirely unacceptable... and a big hint of the other problems with this settlement.
- It takes a little bit more work to dispose of the "representativeness" of the author subclass (also designated in § 1.125).
- Paul Dickson has written "more than 50 non-fiction books and countless articles on a wide variety of subjects from toasting to ice cream to baseball to slang to Sputnik."
- Joseph [C.] Goulden has written several works of serious nonfiction on twentieth-century American topics.
- Daniel Hoffman has published eleven books of poetry, seven books of criticism, and a memoir.
- Betty Miles "has written more than thirty books for children, including easy readers, picture books, non-fiction books and nine novels for pre-adolescent readers."
- Herbert Mitgang is a historian strongly associated with the conservative Nation magazine.
Once one looks at this list, though, some gaping holes in representation become extraordinarily obvious. Among the obviously missing are trade fiction, Christian publishing, educational publishing, textbooks, coauthors, drama, self-help and instructional, craft and trade, reference works, writers of derivative works, the anthologized, and so on. Put another way, this list of five authors has considerable overlap among the thirteen distinct economic niches occupied by authors... and only covers four of them (children's, poetry and criticism, contemporary affairs, and nonspecialized trade nonfiction). That is by no means "adequate representation," because it means that the authors fail both typicality and commonality of interests.
On this basis alone, this settlement cannot be accepted as appropriate. These problems could be fixed by changing the named plaintiffs, but then that would tend to upset the control of the suit desired by those running it... and might well lead to an unwieldy decision system. That, however, is my ultimate point: This settlement is an attempt to impose a one-size-fits-all uniform on interests that aren't even of the same species.