In a short reply brief filed on July 2, HarperCollins attorneys insisted that Open Road’s unauthorized edition of Jean Craighead George’s Julie of the Wolves caused the publisher harm, and urged the court to uphold their request for an injunction and more than $1.1 million in damages and attorneys fees.
The latest filing comes after Open Road assailed HarperCollins’ request as “extreme” and argued that the publisher did not suffer harm because it cannot publish or license a digital edition without the consent of the author. But Harper attorneys say Open Road’s argument misses the point. “As the Court found, Open Road arrogated to itself a market opportunity that belonged exclusively to HarperCollins,” the brief states. “Such conduct constitutes irreparable harm.”
In its June brief, Open Road argued that its actions were “objectively reasonable,” and that damages should be limited given that Harper was unable to conclude a deal for a digital edition with George, who had reportedly dubbed Harper’s digital royalty offer of 25% of net revenues “unfair.” Open Road also called the $1.1 million request for attorneys fees "shocking," and argued that it was wildly "disproportionate" to the just over $19,000 Open Road has netted from publication of its edition. Such an award, if granted, would universally deter authors from pursuing their rights, Open Road attorneys argued, counter to the goals of the Copyright Act.
In its reply, HarperCollins argued that because the court’s decision was based on "a plain reading of the contractual language,” that was “tantamount to a finding that Open Road’s defense was objectively unreasonable.” The brief also brushed aside the idea that the George estate would not come to terms with Harper at some point.
“Open Road’s speculation that HarperCollins’ licensing of the Work might be stymied by the George estate’s refusal to consent merits no weight,” its brief states. “For one thing, Open Road cannot credibly represent what the George estate, a third party, will do now that the Court has upheld HarperCollins’ rights in the Work. Further, this entire litigation is the result of George’s interest in having the Work published as an e-book; it is cynical–indeed irrational–to assume that that interest will dissipate where the legitimate licensor happens to be the very publisher that popularized and supported the Work through its many decades of publication.”
Harper attorneys also sought to turn around Open Road’s argument against a major fee award. “Fee awards are especially justified where the ‘financial amount at stake between the parties is quite small,’” the brief states, “because “without the prospect of a fee in such cases, the injured party might be forced into a nuisance settlement or deterred altogether from enforcing his rights.”
The filings come after HarperCollins won in its copyright suit against Open Road in March, and after the parties were unable to come to a voluntary settlement to resolve the case.
