Saturday, February 18, 2012

Open Road Update: ePubber Tells HarperCollins to Hit the Road

By Lloyd J. Jassin


 Below is Open Road's answer to HarperCollins' recently filed lawsuit against them. Nothing surprising here. Open Road refutes HarperCollins’ legal position that the term “in book form” in a pre-Internet age contract includes eBook rights.

As you may recall, in its complaint for copyright infringement, HarperCollins argued that its contract for Julie of the Wolves, a book first published in 1972, gave it the sole right to publish Jean Craighead George’s YA classic in eBook form.

The big issue, hiding in plain sight, is the issue of competitive books. Most see the case through the lens of "who should control eBook rights?," but there's little doubt in my mind that the novel issue is not one of property but of equity or fairness. And, as they say, fairness is in eye of the beholder.

By way of background, most "standard" author-publisher contracts (actually there's no such thing as a standard contract in the publishing industry) prohibit the author from publishing a "competitive" book without first receiving the publisher's permission.

In its recently filed answer,Open Road neither denies nor admits that its digital version of Wolves competes directly with the sale of the book in paper form. As I wrote previously, while the grant of primary rights did not mention eBook rights, a court might find it unfair for Ms. George to collect royalties from HarperCollins, while, at the same, time enjoying a royalty stream for the same work from Open Road. There is, however, scant law on the enforceability of non-compete clauses found in publishing contracts -- and even less law on liability for deliberate or tortious interference with such contractual relationships.

Next Stop on the Long Litigation Road

What's next?  Briefs will be prepared and a parade of industry experts will be asked to submit expert affidavits in support of either HarperCollins or Open Road, stating under "penalty of perjury," that the ability to read text on a screen [did] [didn't] date back to 1971 (or earlier).

Side Bar 

If you have a sense that we've been down this road before, you are correct.  Open Road and HarperCollins' lead attorneys duked it out in 2001-2002 in the Rosetta Books case.  Yup, they've even taken the same sides of the issue.  In 2002, Rosetta, won an appeal affirming a trial judge's decision not to enjoin Rosetta from selling eBook editions of Random House's Slaughterhouse Five, Sophie's Choice and other  bestselling backlist titles.

Summation

The Rosetta Books decision reminds us that eBooks have been poised to cannibalize books in print for over decade.  This time, however, traditional publishers such as HarperCollins and Random House are in a more vulnerable position, as today it is clear that you cannot remain profitable on the sale of bound books alone.

Open Road Response to HarperCollins complaint



Resources

Author Joins Fight Over eBook Rights -- Wall Street Journal (Article)
Random House v. Rosetta Books -- (2d Cir. 2002) (Court Doc)
How Controls eBook Rights? -- Copylaw (Legal Analysis)

5 comments:

  1. To your last point, profit is not a right a company has, a company has to earn its profit through its business acumen. It's been 10 years since the summary judgment about RosettaBooks. Publishing companies changed very little. The world is moving on. The author is entitled to maximize every commercial opportunity possible. If book publishers are not the most lucrative platform, that's not the author's issue or the issue for the digital publisher who signed the author.

    Litigation is often a last resort when people are short on imagination.

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  2. Please give an extra 'b' to that electronic puber!

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  3. Melissa, well stated. This would be a good place to add / synch Bob Dylan singing 'the old road is rapidly agin' to the soundtrack for HarperCollins v Open Road.

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  4. This is going to be a long litigation fight because of the financial and lingering impacts the verdict will have on Harper Collins as a company and industry. On the surface it looks like a fight about digital rights but the decision in either direction will determine how contracts pre-internet age can be interpreted.

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