Open Road and HarperCollins battle over ebook rights to Julie of the Wolves

The lawsuit over the ebook rights to Jean Craighead George’s Julie of the Wolves is moving forward in court, with Open Road Media and HarperCollins filing motions on March 18. HarperCollins filed its lawsuit against Open Road in December 2011.
In the case, HarperCollins says that its 1971 contract with George gives it the right to publish Julie of the Wolves in any format, including as an ebook. Open Road argues that HarperCollins never had ebook rights. George, who was 92 when HarperCollins first filed its lawsuit, said that she was “with Open Road all the way,” but she died in May 2012 and never gave a deposition.
HarperCollins argues that its contract included future types of works, and  that print books and ebooks are the same. Open Road contends that it did have the right to publish Julie of the Wolves because ebooks didn’t exist in the 1970s, and because HarperCollins’ 1971 contract with George didn’t specify a royalty rate on electronic works.
Both of the motions filed last week refer to a 2001 case in which Random House sued Rosetta for publishing ebook editions of Random House works. A federal judge ruled that ebooks and books weren’t the same thing and that Random House couldn’t block RosettaBooks from selling the titles. Random House appealed, but the decision was upheld, and Random House and RosettaBooks ultimately settled. Because of the outcome of that case, HarperCollins specifies in its motion how different the Julie of the Wolves case is from Random House v. Rosetta, and Open Road stresses the cases’ similarities.

HarperCollins: Ebooks weren’t around in 1971, but we knew they were coming

HarperCollins notes (here’s the PDF of the motion) that its 1971 contract grants it the right to publish Julie “in book form,” and says that the grant “encompasses ebook publishing rights of the type Open Road has unlawfully appropriated, particularly given the virtually identical reading experience afforded by its offering to the hardcover and paperback offerings of HarperCollins, with which it directly competes.”
HarperCollins and Open Road both focus closely on the “storage and retrieval and information systems” clause in the original contract. The contract had stated:

“the publisher shall grant no license without the prior written constant of the Author with respect to the following rights in the work: use thereof in storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means now known or hereafter invented…”

HarperCollins argues that it’s “no stretch to recognize that ‘storage and retrieval information systems’ fully encompass the display of an ebook via an ebook reading device.” In a section of its motion on “the antecedents to ebooks,” it mentions, for instance, a 1968 article “envisioning the Dynabook, a new storage and retrieval device the size of a three-ring binder that would have a multipurpose screen that could be used for both reading and writing.” HarperCollins concludes that “without doubt, as of 1971, when the Agreement was executed, ebooks of the type offered by entities such as Open Road were foreseeable…Electronic delivery of books and other textual works was further anticipated as early as the 1950s and 1960s, when computer scientists envisioned and experimented with devices that could store books, documents and even entire libraries electronically.”

Open Road: “Information, storage and retrieval systems” don’t mean “ebooks”

In its motion (PDF), Open Road says that while HarperCollins takes the phrase “in book form” to include the right to publish an ebook as well, the judge in Random House  vs. Rosetta “found that this term excluded ebooks…It has been for decades the standard grant language that trade usage in the publishing industry has been understood to mean paper forms of the work.” Open Road cites HarperCollins’ own online dictionary, for instance, which defines “book” as “a number of sheets of paper, parchment, etc. with writing or printing on them” and has a separate entry for ebooks: “Hence, ‘book form’ and ‘digital form’ are clearly distinguished as separate forms of publication.”
Open Road also looks at HarperCollins’ later contracts and finds that, unlike the 1971 contract with George, they referred more explicitly to ebooks and didn’t use “information, storage and retrieval systems” to mean ebook rights. Open Road adds, “ebooks and information storage and retrieval systems are apples and oranges…Harper cannot reasonably argue it now believes there is no difference between ebooks and information storage and retrieval systems, in light of its own differentiation of the two technologies in its earlier contracts.”
Open Road focuses on the fact that digital royalties were absent from the 1971 contract. It says it

“offered to pay Ms. George a 50% royalty to publish her work as an ebook. Ms. George was intrigued by Open Road’s offer and the prospect of bringing her work to a new medium. Still, she wanted to keep her works ‘in-house’ with her print publisher. So she asked Harper to publish Julie of the Wolves as an ebook for the same royalty. Harper flatly refused. It told her it would publish the ebook, but only for a 25% royalty … even though … (1) the contract is silent as to ebook publishing rights and lacks a royalty provision in exchange for those rights, (2) Ms. George expressly reserved all rights not specifically granted, and (3) the technology for such a product did not exist until many years later and a commercially viable ebook publishing market did not take hold until just a few years ago.”

The publisher argues that there was no nascent ebook market in 1971 “or 1981 or 1991,” saying, “the issue is not whether a few isolated academic visionaries could dream of a day when the words of an author’s work could be digitally transmitted through space.”
HarperCollins and Open Road both declined to comment, and a court date has not yet been set.
HarperCollins motion
Open Road motion