HarperCollins Sues Open Road Over E-Book Rights

[ATDrake]

Originally Posted by Kali Yuga

Gottlieb saying "I've seen the Open Road agreement" doesn't prove anything in either direction.

Either Open Road did its due diligence and has a valid defense; or didn't and acted in a high-handed fashion.

Eh, the Gottlieb statement was just provided as an illustrative example of someone in the actual profession having some experience in dealing with both Open Road and Harper providing relevant-ish information.

For better context, here's the full text of the actual complaint (either Flash online read or site registration for download required), which openly states in 20. that the contract was for "exclusive English-language rights in the United States, its territories and possessions, and Canada to publish Julie of the Wolves in 'book form'".

So it looks like Open Road would indeed have a valid defense for distribution through the rest of the world, even if they tripped up on the US/Canada part of the deal.

And the complaint states that her literary agent contacted HC about Open Media's offer to the author in order to inquire about the e-book situation.

Originally Posted by Kali Yuga

Contracts these days are pretty extensive, and it's up to the author, the author's agent and the author's lawyer(s) to watch their backs. Seriously, there is nothing new about this, and anyone who is going to consider the implications of a contract from a news article rather than from a lawyer needs to hire a better lawyer.

No argument there. Even I can tell this looks like a rather bad contract to have signed, which apparently gives almost everything in every possible book-distributing medium that might ever be invented over to HC for the full term of the copyright, which it seems they own and control instead of the author (??). Which basically seems to work out to locked-in exclusivity in perpetuity (in the US, territories, and Canada, at least) with no possibility of renegotiation.

Hopefully publicity about this will result in more aspiring authors hiring real lawyers who know what they're doing in this particular field instead of thinking they can get by with their sister-in-law's third cousin who'll do it for a discount, or that they can act as their own lawyers when reading the contract.

[rhadin]

Originally Posted by Kali Yuga

Yes, writers should beware... that contracts might obligate them to actually do what they agreed in the contract.

Yes they should be aware of what the terms of a contract means, but I think Amazon's KDP program is demonstrating how short-term writers think and how quickly they do they things without contacting outside experts or analyzing the terms of an agreement. It is like a chess game; the better players can think several moves ahead and strategize whereas average players think either no or one move ahead.

Karl Marx said "Religion is the opiate of the masses." Today, he would have said "Short-term thinking is the opiate of the writer."

[fjtorres]

And, of course, Amazon is sooo relevant to this discussion of a fight between two of their competitors...

A contract that apparently served the author for 40 years an example of short-term thinking? Oh-kayyy...

I'm just not sure I quite buy that those clauses existed in the original 1971 contract. Don't contracts get updated and terms added/adjusted over time?
And I seem to remember that some of the BPHs in recent times were bypassing agents to get their authors to sign away digital rights in "routine" contract mods.

This one bears watching; something smells of month-old dead fish...

[Kali Yuga]

The complaint claims that the contract explicitly references computer and electronic means, including ones invented after the contract was written.

I have no idea whether that clause was standard in their contracts circa 1971, though they are routine now. I believe many older contracts did not have any references to electronic distribution.

Though this may seem like a lock for HarperCollins, I'd still say that the entire contract will need to be thoroughly reviewed in court to determine who holds the ebook rights. E.g. a court may find some other language in the contract which gives the author the right to reassign the electronic rights... or not.

Originally Posted by fjtorres

Don't contracts get updated and terms added/adjusted over time?

They can, but in that type of instance both parties would need to explicitly agree to the changes. This is not like a service agreement with a website that can be updated any time.

[pdurrant]

Reading the complaint, it seems that the contract granted exclusive rights to publish the book "in book form".

Another paragraph, paragraph 20 of the contract, restricts Harper Collins' rights to sub-license the work without George's consent, and that this restriction extends to "computer, computer-stored, mechanical or other electronic means now known or hereafter invented"

Harper Collins are bringing this case to try to make case law that old contracts made well before electronic books that include the words "in book form" should now be interpreted to include ebooks, meaning that they won't have to negotiate new contracts with any of their old authors.

They are trying to support this argument by drawing attention to a clause that limits their ability to sub-license the work in other forms.

I very much hope that they lose the case. I don't see any way in which you could interpret the words of a 1971 contract "in book form" to include ebooks.

[howyoudoin]

If the court rules that "book form" includes ebooks, could Amazon (as an example) then argue that they have the right to treat ebooks as the same as physical books, and therefore discount them like they do with physical books? Pardon me if this seems like a silly question.

[HarryT]

Originally Posted by howyoudoin

If the court rules that "book form" includes ebooks, could Amazon (as an example) then argue that they have the right to treat ebooks as the same as physical books, and therefore discount them like they do with physical books? Pardon me if this seems like a silly question.

No, that would not be relevant. A publisher is under no obligation to supply Amazon with eBooks, and some of them have chosen to do so only on the condition that Amazon act as their agent, and not as a retailer. They are entirely free to do that. Heck, they could do it with paper books if they wanted to.

[pdurrant]

Originally Posted by howyoudoin

If the court rules that "book form" includes ebooks, could Amazon (as an example) then argue that they have the right to treat ebooks as the same as physical books, and therefore discount them like they do with physical books? Pardon me if this seems like a silly question.

It's not silly at all. There a great big can of worms yet to be opened in this area.

Publishers argue that customers aren't buying ebooks, just licensing them

But most publishing contracts state that the author's cut of any licensing fee is 50%.

So if ebooks really are licensed, not sold, then authors ought to be getting 50% of the publisher's cut of the sale price.

There's already a case on this exact point in the music industry. And the music industry lost. Of course, the exact wording of the contracts is important.

[murraypaul]

Originally Posted by pdurrant

I very much hope that they lose the case. I don't see any way in which you could interpret the words of a 1971 contract "in book form" to include ebooks.

Perhaps I'm being simplistic, but doesn't 'in book form' mean not radio plays or audiobooks, not film/tv adaptations, and so on? I doesn't seem at all unreasonable to say that an ebook is a book.

[anamardoll]

Originally Posted by rhadin

Yes they should be aware of what the terms of a contract means, but I think Amazon's KDP program is demonstrating how short-term writers think and how quickly they do they things without contacting outside experts or analyzing the terms of an agreement. It is like a chess game; the better players can think several moves ahead and strategize whereas average players think either no or one move ahead.

Yes, how many people have we seen say, "oh, I could possibly get screwed on the vaguely-worded non-compete portion of the clause, but it's an EXPERIMENT! If this is the great regret of my life" (note: goalpost moving. Why does an idea have to be the WORST IDEA in order to be a bad idea?) "then my life will be a good one". It worries me.

A problem with book contracts, in my opinion, is that they're essentially a contract between a powerful party and a powerless one. I recently spoke with an author who got picked up for an ebook and she has only just now realized that her contract says that her publisher gets dibs on all future books she writes. This is greatly limiting her ability to churn out new books at the pace she is comfortable with, and on the subjects she wants to write about.

This isn't something that can be easily fixed by getting a lawyer. Just FINDING a good contracts/IP lawyer is a struggle. (I'd like one in my area, but haven't had luck looking.) And -- pardon me for pointing out the obvious -- they cost money. A lot of money. Not all aspiring authors have day jobs as software engineers like me.

[HarryT]

Originally Posted by anamardoll

A problem with book contracts, in my opinion, is that they're essentially a contract between a powerful party and a powerless one. I recently spoke with an author who got picked up for an ebook and she has only just now realized that her contract says that her publisher gets dibs on all future books she writes. This is greatly limiting her ability to churn out new books at the pace she is comfortable with, and on the subjects she wants to write about.

This isn't something that can be easily fixed by getting a lawyer. Just FINDING a good contracts/IP lawyer is a struggle. (I'd like one in my area, but haven't had luck looking.) And -- pardon me for pointing out the obvious -- they cost money. A lot of money. Not all aspiring authors have day jobs as software engineers like me.

This is why it's important, as a writer, to have a good agent. It's the agent's job to sort out the contractual stuff, and to make sure that you aren't signing away things that you aren't aware of.

[Elfwreck]

Originally Posted by murraypaul

Perhaps I'm being simplistic, but doesn't 'in book form' mean not radio plays or audiobooks, not film/tv adaptations, and so on? I doesn't seem at all unreasonable to say that an ebook is a book.

It does to me--I can resell books I own. If ebooks are legally "books," I should be able to loan, transfer or resell them. I should be able to make notes in it, as many as I want. I should be able to copy a few pages to letter-sized paper to do a reading for my literature class. I should be able to leave it on a shelf for fifty years and will it to my children.

The problem isn't with the claim that "ebooks are books." It's with the claim "ebooks are books, except with a lot less durability and fewer rights."

[HarryT]

Originally Posted by Elfwreck

The problem isn't with the claim that "ebooks are books." It's with the claim "ebooks are books, except with a lot less durability and fewer rights."

Less in some ways, more in others. You can read your eBook 100 times, and it won't fall apart. I've had several of my favourite paperbacks fall to pieces through frequent re-reading.

[stonetools]

Looks to me that the case will finally sort out such burning issues as whether an ebook is a book or whether an ebook is licensed , or actually sold.
Or, as is most likely, HC and Open Read will settle "out of court" .

[vaughnmr]

Wasn't this the same issue Random House had last year, when they claimed all old contracts included ebooks?