Book People Archive

David v Goliath - Or do authors have eRights ????

Our Company, RosettaBooks has contractually acquired and paid for the
electronic-publishing rights to nearly 100 titles, including several works
by William Styron, Kurt Vonnegut and Robert Parker.  On February 27, 2001,
Random House, Inc., a wholly owned subsidiary of Bertelsmann, filed suit
against RosettaBooks. The suit alleges that Random House owns exclusive
electronic rights to the titles by William Styron, Kurt Vonnegut and Robert
Parker and that Rosetta is infringing Random House's rights by publishing
these titles electronically.  Fundamentally, Random House argues that the
limited grants it received 20 to 40 years ago to "print, publish and sell in
book form" should now be interpreted to include e-books.

Random House has sought injunctive relief including an order which would
prevent Rosetta from approaching the authors of the nearly 21,000 Random
House backlist titles. Random House claims to own the electronic rights to
its entire backlist whether there is a specific electronic rights grant in
the contract or not.

On April 6, 2001, Rosetta filed its answer, brief and fifteen supporting
affidavits in opposition to Random House's preliminary injunction motion.  

Because of the gravity of Random House's suit over authors' rights, an
amicus brief was filed by The Authors Guild (7,800 author members) and
joined by the Association of Authors Representatives (representing over 350
literary agencies).  This is the first time that these two organizations
have joined in an amicus brief.

Rosetta's responsive papers make clear that:

1.      Publishing-contract interpretation and trade custom have long
established that rights grants are limited, and rights not specifically
granted are withheld by authors.  Also, e-book rights could not have been
contemplated as part of the rights granted by backlist authors to publishers
decades ago.  

2.      Random House has known since the early 1990's that it does not have
electronic rights and therefore amended in 1994 its standard publishing
contracts to include express electronic rights clauses in order to acquire
the rights it did not otherwise have.  

3.      Technology developments have only made the e-book a foreseeable and
viable product in recent years, certainly much later than the agreements
Random House relies upon.  This fact is supported by an affidavit by a
pre-eminent expert in telecommunications who was one of the government's
experts in the Microsoft case, and confirmed by depositions from Random
House's own employees and experts.
             
4.      E-book platforms have a range of features that provide the consumer
a totally different experience for the consumer than print books do.
E-books can adjust the font size of a book, permit searches throughout the
text, permit the reader to look up a word in the dictionary, add notes or
underlinings, with many more features to come in the near and medium term.

The litigation has been described by organizations from Microsoft to BN.com
as seminal for the future of e-reading.  The outcome will affect the
electronic rights to hundreds of thousands of books industry-wide.

I post this message here to promote a discourse about the subject in a
community that has a lot at stake. I encourage you to take a look at the
papers filed by Random House along with our response both of which are
posted at www.RosettaBooks.com <http://www.RosettaBooks.com>  (See
Litigation Update Random House v RosettaBooks.) You might also look at the
recent inside.com article posted at
http://www.inside.com/jcs/Story?article_id=28237&pod_id=8
<http://www.inside.com/jcs/Story?article_id=28237&pod_id=8>  (That is where
I picked up the David v Goliath tag)

Regards
             
Leo Dwyer
COO RosettaBooks, LLC
845 Third Aveneu, 15th Floor
New York, NY 10022