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Open Road Responds to HarperCollins Lawsuit

Earlier this week Open Road Media filed a response to a recent HarperCollins lawsuit.

They’re being sued by HC over the ebook rights to Julie of the Wolves, the classic 1972 novel. Each side claims that they have the ebook rights.

If you’ve never seen the paperwork filed by parties in a lawsuit then the filing is worth a read. The original complaint filed by HC is interspersed with responses from Open Road. I learned a couple different procedural details.

But I’m not sure the case itself is worth paying attention to; this won’t be some precedent setting decision.

It seems to be an open and shut case because HC does indeed appear to have the ebook rights. The original contract is written rather broadly, but it is also specific. HarperCollins' book rights cover “computer, computer-stored, mechanical or other electronic means now known or hereafter invented.”

Whoever wrote that contract was unusually prescient, I must say. Looking at it now, wouldn’t you agree that it covers ebook rights?


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fjtorres February 18, 2012 um 12:44 pm

Maybe not.
Some think the that overly-broad language may be so broad as to be meaningless.

There are precedents from the movie business that argue that future-proofing contracts needs to be specific about the rights being negotiated.

Nate Hoffelder February 18, 2012 um 1:14 pm

Huh. I read The Passive Voice and yet I missed that one. Thanks!

But the contract still says electronic and computer. I would think that that pretty clearly indicates ebook rights.

Paul Durrant February 18, 2012 um 2:18 pm

Nate, we haven’t actually seen the contract.

Now, HC claims it gives them the right to publish "in book form" including explicitly via "computer, computer-stored, mechanical or other electronic means now known or hereafter invented"

But note that the two quoted bits of text from the contract aren’t given in context.

And specifically, that bit about "in book form" occurs in clause 1 of the publishing contract (see item 20 of the claim), but the but about "computer, computer-stored, mechanical or other electronic means now known or hereafter invented" occurs in clause 20 of the original contract.

And then note that in item 21 of the claim, it is revealed that clause 20 of the original contract is a statement limiting HC’s rights to the work – that HC must seek consent to license rights as enumerated.

It seems to me that a requirement to seek consent clearly implies that those rights enumerated are NOT granted to HC by the contract.

It would be very interesting to have the full text of the contract.

Nate Hoffelder February 18, 2012 um 3:15 pm

True, and if ORM wants to argue the context of the contract, they won’t do it here. That won’t happen until the trial.

fjtorres February 18, 2012 um 3:24 pm

Exactly. They can argue that in the context of 1971, publishing on/for computer display would’ve been punch cards or tape; not a digital file transmitted electronically.
The key point being the whole "meeting of the minds" aspect.
Not open-and-shut.

karen wester newton February 18, 2012 um 2:00 pm

It’s going to be an interesting case, that’s for sure. Clearly, HC was trying to cover any future formats books might eventually come out in without being specific about what those were, but the question for the court may be can you do that in a contract. It may come down to how good the lawyers are. I know in IP law, a guiding principle of trademark rights is, the trademark can’t be generic (which is why the Sci-Fi Channel became the SyFy Channel). And yet, the Honey Baked Ham folks successfully argued that a ham baked in honey was not in fact generic.

the rodent February 18, 2012 um 4:31 pm

The only question I have, really, is: will the author derive any benefit from all of this, no matter which way it goes?

fjtorres February 18, 2012 um 5:21 pm

Depends on how long the case runs.
If Open Road wins, the novel gets released as an ebook, generating new revenue.
If Open Road loses, the company that claims to have forseen ebooks 40 years ago but hasn’t seen fit to release the novel in ebook form probably won’t release it now, just to twist the dagger in her back.

Name (required) February 20, 2012 um 6:04 am

There seems to be typo in the post
I think that:
"If you’ve never the paperwork filed by parties"
Was supposed to be
"If you’ve never seen the paperwork filed by parties"

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