[LINK] The new eRights battle

[Jan Whitaker]

This is an interesting twist: do publishers of backlist books have 
the rights to ebook publishing? Evidently not unless it's in the 
contract. And that makes sense to me.

from: Fwd: Publishers Lunch
>The New eRights Battle
>As many readers know by now, last Friday Random House ceo Markus 
>Dohle wrote to agents with the twofold purpose of summarizing some 
>of the publisher's ebook and electronic marketing initiatives, and 
>reasserting their view that "the vast majority of [their] backlist 
>contracts grant us the exclusive right to publish books in 
>electronic format." Since many agents disagree with that view, the 
>letter was quickly interpreted as a warning shot to Jane Friedman's 
>start-up Open Road and any others who would aspire to electronic 
>rights to legacy titles still active in the marketplace. And some 
>saw the possibility that Random House might return to court, to 
>fully litigate the issues left not fully resolved when they sued 
>Rosetta Books in 2001.
>
>But Random House spokesman Stuart Applebaum tells us the letter "was 
>written and is put forward in the spirit of collaboration, not 
>confrontation, with the agent community." Regarding backlist titles 
>by William Styron (whose works were part of Random's electronic 
>rights dispute with Rosetta as well), Applebaum says "Random House 
>is having ongoing discussions with the Styron estate representatives 
>and we are confident we will will have a mutually agreeable 
>publishing arrangement for Mr. Styron's backlist e-book titles and 
>that our promotion of them will benefit his Random House print 
>editions as well." Applebaum underscores the publisher's intention 
>to publish ebooks of authors' classic titles "with as great 
>creativity, vigor, and care as we devote to their print editions." 
>(Open Road has emphasized the marketing plans and platform they 
>intend to bring to ebooks. But they also offer a 50/50 split of 
>proceeds, rather than 25 percent of net that most major publishers 
>seek to pay now as ebook royalties. In Styron's case, Open Road is 
>developing a film version of Lie Down In Darkness in addition to 
>their announced ebook plans.)
>
>The NYT reported that there is "resistance" from Simon & Schuster to 
>the announced electronic license of Joseph Heller's Catch-22 to Open 
>Road. Amanda Urban at ICM "believes the e-book rights reside with 
>the author," the Times writes, but she indicates "discussions were 
>continuing" with Open Road and a deal has not been signed yet. S&S 
>spokesperson Adam Rothberg declined to elaborate on their position.
>
>Agent and owner of E-Reads (which only licenses fully reverted 
>works) Richard Curtis opines to the WSJ, "Someone would have to have 
>a lot at stake to be willing to spend hundreds of thousands of 
>dollars to go up against Random House in court. I don't know whether 
>anybody will feel they want those rights so badly they are willing 
>to spend like that to prosecute a claim right up to what could be 
>the Supreme Court."
>
>The arguments Dohle makes in his letter are similar to those 
>asserted by Random House in court in 2001. "Random House considers 
>contracts that grant the exclusive right to 'publish in book form' 
>or 'in any and all editions' to include the exclusive right to 
>publish in electronic book publishing formats. Our agreements also 
>contain broad non-competition provisions, so that the author is 
>precluded from granting publishing rights to third parties that 
>would compromise the rights for which Random House has bargained."
>
>When Judge Sidney Stein ruled on these arguments in 2001, he found 
>"that the most reasonable interpretation of the grant in the 
>contracts at issue to 'print, publish and sell the work in book 
>form' does not include the right to publish the work as an ebook." 
>He did not "opine" on the non-competition argument since he 
>concluded "the remedy is a breach of contract action against the 
>authors, not a copyright infringement action." But Stein was not 
>deciding the case itself; he only ruled against Random's request for 
>a preliminary injunction blocking Rosetta from issuing eight 
>disputed works as ebooks.
>
>Stein wrote in his conclusion--later supported by the Court of 
>Appeals--that "employing the most important tool in the 
>armamentarium of contract interpretation - the language of the 
>contract itself - this Court has concluded that Random House is not 
>the beneficial owner of the right to publish the eight works at 
>issue as ebooks. This is neither a victory for technophiles nor a 
>defeat for Luddites. It is merely a determination, relying on 
>neutral principles of contract interpretation, that because Random 
>House is not likely to succeed on the merits of its copyright 
>infringement claim and cannot demonstrate irreparable harm, its 
>motion for a preliminary injunction should be denied."
>
>Michael Boni, attorney for the Authors Guild in the Google Books 
>case, represent Rosetta as lead counsel. At the time, Penguin, Simon 
>& Schuster, Time Warner Trade Publishing, and Perseus filed a joint 
>brief in support of Random House, and when Random House appealed, it 
>was supported by a brief from the AAP. The Authors Guild and the AAP 
>filed a brief with the Court of Appeals on behalf of Rosetta. Random 
>House and Rosetta settled the case rather than litigating it to its 
>conclusion, and Rosetta got licenses for a number of books--but from 
>Random House, rather than the authors.
>
>Members can view the full letter from Random House 
><http://click.publisherslunchdaily.com/cp/redirect.php?u=NTAwNnwzNDQ4OXxqd2hpdEBqYW53aGl0YWtlci5jb218Mzc3MjQ4fDc2MDIyMjM2fDU3MDQyOQ==&id=2766249>here. 
>


Melbourne, Victoria, Australia
jwhit at janwhitaker.com
blog: http://janwhitaker.com/jansblog/
business: http://www.janwhitaker.com

Our truest response to the irrationality of the world is to paint or 
sing or write, for only in such response do we find truth.
~Madeline L'Engle, writer

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