HarperCollins Sues Open Road Over E-Book Rights

[pdurrant]

Yes, exactly so. They seem to want to make it a test case. I think they'll only settle out of court on this one if it looks like they're going to lose.

[Phogg]

Originally Posted by stonetools

Well, we don't know the contract language for sure, but the quoted portion seems quite inclusive:



I doubt HC's claim is going to be dismissed outright- and I'm not a fan of HC's position on this matter. Still, HC has every right to pursue its legal remedies. Best case scenario, the book gets published, and everyone gets to share the proceeds.


Lesson # 1,231,456 in why authors need a good lawyer or agent at the table in negotiations with publishers

She very likely had a top notch lawyer present, as she grew up in DC and her father and mentor was a very bright guy. But nobody in 1971 was anticipating either the ebook market or publishers too stupid to navigate it.

[Andrew H.]

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.

That's true, but it's also true of mortgages, leases (usually), employment contracts (often), contracts for the provision of internet services...and many other contracts. It's pretty much par for the course when you deal with any large corporation - which is unavoidable, as they tend to have money, property, or services that people want.

(I am really surprised that the contract included some sort of reference to computers - that seems very far-sighted for the punch card days of 1971. )

[Kali Yuga]

Originally Posted by pdurrant

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

Re-read the complaint.

"Paragraph 20 of the agreement further makes clear that the scope of HarperCollins publishing rights extends to exploitation of the work 'through computer, computer-stored, mechanical or other electronic means now known or hereafter invented.' "

It is an additional stipulation (in the same paragraph) that HC needs the author's permission prior to releasing an electronic version.

Again this is fairly unusual for a 1971 contract, so it's still unclear who really has what rights.

Originally Posted by pdurrant

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...

They may eventually do something like that, but that is not their argument in this particular case.

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.

I can see plenty of ways, and at least some of them will depend on the specific wording of the contract. An explicit contract, of course, is always preferable.


By the way, let's keep in mind that Open Road is hardly a scrappy outsider; it's a startup from a former CEO of HarperCollins.

In fact, I really can't see any particular reason to side with one over the other in this case. The real question -- in fact, the only question -- is what is in the contracts.

[Kali Yuga]

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.

Welcome to life.

There are never any guarantees that both parties in a contract will be on equal footing. If you're in a weak negotiating position and don't know how to turn the situation to your advantage, it's still your choice to sign the contract.

Originally Posted by anamardoll

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....

Your author should've gotten a better lawyer. Or a lawyer, period.

Or read the contract before she signed it.

Originally Posted by anamardoll

This isn't something that can be easily fixed by getting a lawyer.

Yes, it can.

Seriously, if it is a surprise to her that she signed a contract that gives the publisher dibs on "all" future books, then she and/or her lawyer screwed up royally.

I might add that such a clause is highly unusual for book contracts. Normally book contracts are for a limited number of books. If it's a work-for-hire situation, it's for a limited period of time. I.e. she may not have accurately explained her situation, or still doesn't know what she signed.

Originally Posted by anamardoll

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.

True, but that's part of the cost of being an author.

Good real estate lawyers are hard to find, and are not cheap; but you still need one if you're buying a home.

[ATDrake]

Originally Posted by Kali Yuga

By the way, let's keep in mind that Open Road is hardly a scrappy outsider; it's a startup from a former CEO of HarperCollins.

Huh. That should make things more interesting, as one would think that said former CEO would know how HC would be likely to react and what sort of stuff they had in the old contracts in general.

And as a poster mentioned above, HC is now a Murdoch-owned company, and the entire Murdoch-owned group has been getting a well-deserved reputation over the years for some seriously skeevy and exploitative and outright illegal practices*.

Originally Posted by Kali Yuga

In fact, I really can't see any particular reason to side with one over the other in this case. The real question -- in fact, the only question -- is what is in the contracts.

Myself, and I admit this is emotionally-based, I'd side with whichever side the author herself picked, as she seems reasonably enthusiastic about having this particular book published by this particular company, given that she went and recorded a new video message talking about the writing the story in the book for said company's website.

It's really rather unfortunate that she appears to have signed a contract that turned over all control for either publishing or blocking publication of her book in any textual format that might ever be invented to HC for the duration of the copyright (), which seems especially ill-advised, as IIRC that was after the US no longer had its 28+28 renewal thing going and thus they'd basically control the copyright for her entire lifetime.

For the author's sake, I hope that her other non-disputed Open Road e-books do well, and it seems like no matter how the court rules regarding the HC contract, OR can still distribute Julie of the Wolves throughout the rest of the world, since the 1971 agreement is only for US/territories/Canada.

* And finally being brought to court for some of them, at least in the UK as regarding the quote-unquote "journalism" end of things.

[gweeks]

Originally Posted by ATDrake

It's really rather unfortunate that she appears to have signed a contract that turned over all control for either publishing or blocking publication of her book in any textual format that might ever be invented to HC for the duration of the copyright (), which seems especially ill-advised, as IIRC that was after the US no longer had its 28+28 renewal thing going and thus they'd basically control the copyright for her entire lifetime.

1972 was while the US was still using the 1909 Copyright act with 28+something copyrights.

Greg Weeks

[ATDrake]

Originally Posted by gweeks

1972 was while the US was still using the 1909 Copyright act with 28+something copyrights.

That makes more sense, I'd been thinking 1964 was the cutoff since that's when the PD stuff seems to end at the US Project Gutenberg; thanks for the info.

It looks like the author got screwed not so much by any negligence on her or her agent/lawyers' part when looking over and signing the original contract, but just by the US copyright laws changing around her and the passage of unexpected end-reader technological advances over time.

[pdurrant]

Originally Posted by Kali Yuga

Re-read the complaint.

"Paragraph 20 of the agreement further makes clear that the scope of HarperCollins publishing rights extends to exploitation of the work 'through computer, computer-stored, mechanical or other electronic means now known or hereafter invented.' "

It is an additional stipulation (in the same paragraph) that HC needs the author's permission prior to releasing an electronic version.

No, it's not.

Paragraph 1 contains the main grant of rights, as stated on page 8 of the complaint:

the Agreement (in paragraph 1) grants to HarperCollins, for the term of copyright, the exclusive English-language rights in the United States, its territories and possessions, and Canada to publish Julie of the Wolves "in book form." This grant is itself encompassing of the right to publish the Work as an e-book.

It's paragraph 20 that mentions computers and electronics means, and that's in relation to the rights Harper Collins has to sublicense the work, and explicitly excludes those rights:

The stated limitation of paragraph 20 — that HarperCollins must seek George's consent to license rights in the Work enumerated in that paragraph

Harper Collins is trying to argue that by specifically excluding the right to sublicense the work "through computer, computer-stored, mechanical or other electronic means now known or hereafter invented", the contract therefore gives them the right to publish (not sub-license) in ebook form.

Since the contract explicitly excluded the right to sublicense some formats, in my opinion, Harper Collins can't then argue that right to publish in those formats is implicitly granted in the first paragraph with the phrase "in book form".

Clearly (IMO) the intent of the contract was to grant Harper Collins limited rights to publish in existing (as of the contract date) book forms, and not to grant the right to publish in any future forms.


Essentially, as I read things, the contract looked like this:

1. I grant HC the right to do A
...
20. HC may not sublicense rights B, C, D, E or anything that might be invented in the future.

And now HC are arguing that para 1 implicitly includes the rights to directly exploit all the things that they were forbidden to sublicense in para 20, because they were not explicitly excluded from A.

I don't this argument will work.

[anamardoll]

Originally Posted by HarryT

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.

Sure, but if the agent falls down on the job, they don't get blamed.

HOW long did it take before someone here said, "Well, the author shouldn't have signed..." I don't see anyone saying "Man, that author must have had a &*^% agent."

Nor does the agent suffer from these problematic contracts in the same way the author does.

What we really need isn't better agents, but better contract law to protect the less powerful party in a contract from abuse.

And flying pigs. We need those too.

[anamardoll]

Originally Posted by Andrew H.

That's true, but it's also true of mortgages, leases (usually), employment contracts (often), contracts for the provision of internet services...and many other contracts. It's pretty much par for the course when you deal with any large corporation - which is unavoidable, as they tend to have money, property, or services that people want.

(I am really surprised that the contract included some sort of reference to computers - that seems very far-sighted for the punch card days of 1971. )

Sure! Which is why we need to stop blaming the powerless party for entering into an abusive contract and start mandating better laws from our governments and better behavior from our companies.

I'm willing to do my part by telling HarperCollins they can bugger off.

[MaggieScratch]

*runs off to buy ebook before the price is jacked up by HC*



This is an awesome book. Read the library copy multiple times as a child.

ETA: Wondering if Tasini v. NY Times applies here at all? IANAL.

[ATDrake]

Originally Posted by anamardoll

Sure, but if the agent falls down on the job, they don't get blamed.

HOW long did it take before someone here said, "Well, the author shouldn't have signed..." I don't see anyone saying "Man, that author must have had a &*^% agent."

I think part of that is that sometimes authors cut out the middleman, as it were, and do more-or-less direct negotiations, especially in newbie small-press/self-pub situations or with a publisher they've come to trust.

We did blame her lawyers for possibly being incompetent, too.

Originally Posted by anamardoll

Nor does the agent suffer from these problematic contracts in the same way the author does.

What we really need isn't better agents, but better contract law to protect the less powerful party in a contract from abuse.

Including those signed on the advice of agents, because I've read some old-school Hollywood horror tales about agents who basically sold their clients out to the big studios for a pittance and virtual indentured servitude, for the agent's own profit.

Agents who do that should be also held liable in some way.

Originally Posted by anamardoll

And flying pigs. We need those too.

Well, we've got flying piggy banks*. Is that close enough†?

* I personally own a plush one which is awesome, from a company that has apparently gone out of business judging from its MIA website.

† I am not willing to google for "inflatable flying pig" even with the SafeSearch filtering on. But I know that Pink Floyd‡ used a few during their "Animals" album tour.

‡ My pink plush flying piggy bank is indeed named "Floyd".

[anamardoll]

Originally Posted by ATDrake

Including those signed on the advice of agents, because I've read some old-school Hollywood horror tales about agents who basically sold their clients out to the big studios for a pittance and virtual indentured servitude, for the agent's own profit.

Agents who do that should be also held liable in some way.

Heck, just look at the lawyer in "The Jungle" who -- when consulted on a question of contract on an abusive housing agreement -- turned out to be quite chummy with the selling agent.

So, yeah, BETTER AGENTS! isn't the answer. Especially when the agents can still mess up, or do the wrong thing, or make a mistake, or have a bad day, or be fraudulent or stupid or evil or Cthullu. I mean, the whole idea that "well, YOU shouldn't have signed an abusive contract", is so wrapped up in victim-blaming that it makes me weary just thinking about it.

[ATDrake]

Originally Posted by anamardoll

So, yeah, BETTER AGENTS! isn't the answer. Especially when the agents can still mess up, or do the wrong thing, or make a mistake, or have a bad day, or be fraudulent or stupid or evil or Cthullu.

Personally, I think Cthulhu would make an awesome agent.

Your publisher tries to screw you? Your agent drives him to gibbering madness and then EATS HIS SOUL.

And then the rest of the publishers will be afraid to mess with you, and possibly offer propitiating advances and a greater royalty percentage to make sure the rats in the walls don't come after them at night.

This is, of course, assuming that Cthulhu is on your side. But either way, why sign up with a lesser evil?