RH Trying Another e-Book Rights Grab

The Wall Street Journal had an interesting article by Jeffrey A. Trachtenberg yesterday.

Random House's CEO Markus Dohle sent a letter to literary agents on Friday, laying claim to digital rights on its backlist books contracted "before the emergence of an active marketplace for electronic books."

[Dohle] wrote that the "vast majority of our backlist contracts grant us the exclusive right to publish books in electronic formats." He added that many of Random House's older agreements granted it the exclusive right to publish a work "in book form" or "in any and all editions."

Nat Sobel, a literary agent, responded in the article:

"I don't accept Random House's position, and I don't think anybody else will either," Mr. Sobel said. "You are entitled to the rights stated in your contract. Contracts 20 years ago didn't cover electronic rights. And the courts have already agreed with this position."

This isn't Random House's first time at bat on this issue. Back on February 27, 2001, Random House sought a preliminary injunction to prevent RosettaBooks from e-publishing RH backlist titles. RosettaBooks had obtained contracts covering e-book rights to titles by Kurt Vonnegut, William Styron, Robert Parker and other RH authors. At that time EContent quoted Stuart Applebaum, RH's publicist: "Random House owns the rights of all of the works in electronic format, even if its not specified in the clause of the contract."

The U.S. District Court for the Southern District of New York didn't agree with Random House. In reporting on the July, 2001 decision, the Associated Press indicated that, in denying the injunction, "U.S. District Judge Sidney H. Stein ruled that the publisher was 'not likely to succeed on the merits of its copyright infringement claim and cannot demonstrate irreparable harm'."

Random House appealed, and RosettaBooks reported on the outcome of that legal action:

On March 8, 2002, Judges Newman, Kearse and Rakoff, writing for the Second Circuit, rendered a unanimous decision in favor of RosettaBooks denying Random House´s request that the Appelate Court overturn Judge Stein´s July 11, 2001 ruling which had denied Random House´s request for an injunction. The three judge panel concluded that contrary to Random House´s assertions, ".....the district court did not abuse its discretion in denying Random House´s motion for a preliminary injunction, and consequently the judgment is affirmed."

In December, 2002, the Associated Press reported that Random House and RosettaBooks had reached an agreement:

Under the agreement, Random House will grant Rosetta exclusive e-book rights to "mutually agreed-upon titles," both old and recently published. Random House authors include Nobel laureate Toni Morrison, John Grisham, Anne Rice and Donna Tartt.

Despite its loss in court, Random House has proven surprisingly aggressive in pursuing its agenda. Regular readers of this blog may remember my quoting from an article in the UK's The Bookseller in July, 2008:

The controversy hinges on the definition of "out of print" in the digital environment, with one agent saying RHG was "trying to power through enormous changes to the contractual precedent". . .

Society of Authors deputy general secretary Kate Pool said her major concern with RHG's new boilerplate was an out-of-print clause allowing rights reversion only if the publisher cannot supply a physical or electronic copy of a book within a month, or if there have been no royalty earnings for a year. The author body plans to raise the issue with RHG.

Pool said: ". . . this is a way that publishers can sit on rights for years on end."

Go here to read The Wall Street Journal article.

Stay tuned . . .