A couple of days ago I mentioned the lawsuit HarperCollins filed against Open Road for e-publishing the backlist title Julie of the Wolves by Jean C. George. I’ve just come across entertainment lawyer Lloyd J. Jassin’s analysis of the issues on his blog, Copylaw.

Bringing up previous precedents that relate to similar matters (such as whether the rights to screen a movie also include the rights to screen it on TV), Jassin discusses the legal basis that courts will sort out in their decision. He also mentions that courts will usually decide cases of ambiguous contracts that seem equally valid in either interpretation in favor of the party with less bargaining power, which is usually the author.

He also goes into detail concerning the important points of the case. At the heart of the matter are paragraphs 20 and 21 of HarperCollins’s complaint (which I have retrieved from PACER and embedded below). In paragraph 20, HarperCollins says its contract includes the rights to exploit it “through computer, computer-stored, mechanical, or other electronic means now known or hereafter invented”. (Italics theirs.) In 21, they note that the contract requires HarperCollins to seek George’s consent to license those rights to someone else, but explain that is only to cover themselves in case they should want to license a third party to make the e-book for them.

HarperCollins’s complaint makes the matter seem like an open and shut case from its perspective, though of course that’s the whole point of such a filing. It even goes back to the founding of Project Gutenberg in 1971 to claim that e-books were already known to exist prior to the contract!

However, we haven’t yet seen any response from Open Road, or the actual contract itself from which we can extract more context. (The PACER documents did include a copy of the copyright filing for Julie of the Wolves, but it doesn’t really seem germane to this matter so I didn’t bother uploading it to Scribd.) Without that, all we have is one side of the argument.

The RosettaBooks ruling has a few interesting tidbits concerning how the judge came to the conclusion that Rosetta had a better position than Random House, but they tend to be related to matters specific to those contracts—for instance, the fact that the Random House contracts explicitly break out Braille editions as requiring separate rights. “This language would not be necessary if the phrase ‘in book form’ encompassed all types of books,” the judge wrote.

Random House contends that the phrase "in book form" means to faithfully reproduce the author’s text in its complete form as a reading experience and that, since ebooks concededly contain the complete text of the work, Rosetta cannot also possess those rights. (Hrg. at 39; Green Aff. ¶ 5; Miller Aff. ¶ 15.) While Random House’s definition distinguishes "book form" from other formats that require separate contractual language—such as audio books and serialization rights—it does not distinguish other formats specifically mentioned in paragraph # 1 of the contracts, such as book club editions and reprint editions. Because the Court must, if possible, give effect to all contractual language in order to "safeguard against adopting an interpretation that would render any individual provision superfluous," Sayers, 7 F.3d at 1095, Random House’s definition cannot be adopted.

That being said, a ruling on a preliminary injunction in a case that was subsequently settled (with contracts that will not necessarily even include the same terms as the HarperCollins one!) might be interesting for showing the thought process of that particular judge, and perhaps suggesting avenues of argument to Open Road’s lawyers, but it hardly counts as precedent even in its own district, let alone this current case. I look forward to seeing what comes out next.



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