In responding to a lawsuit filed by Random House that seeks to block Rosetta Books from distributing eight e-books by authors whose printed works were published by Random, attorneys for the e-publisher argued that Random's contracts prior to 1994 cover only the rights to the print edition. In its lawsuit filed in late February (News, Mar. 5), Random charged Rosetta with copyright infringement for releasing e-book editions of five Kurt Vonnegut novels, two William Styron novels and one by Robert Parker, claiming that its contracts give Random the right to publish those works in book form, including e-books.
The position taken by Rosetta's attorneys is that the phrase in Random's old contracts "to print, publish and sell in book form" "refers only to the first publication rights of the author's work in the form of a print edition." The filing cites various publishing industry members who said that for publishers to acquire additional rights, such as audio or foreign publication, separate contractual language is required. The papers note that for the eight works at issue in the suit, the authors or their agents reserved certain rights and in no case did they grant Random electronic rights.
Rosetta's lawyers repeatedly stressed that as the debate about who controlled electronic rights first emerged in connection to CD-ROMs in the early 1990s, Random, at the direction of then chairman Alberto Vitale, changed the wording of the company's standard contracts in 1994 to expressly include electronic rights. Vitale's directive was based in part on the decision reached by former Random executive Catherine Fowler and others in the Random electronic publishing division who determined that as of the early 1990s Random's standard contract did not include electronic rights.
Rosetta's position was supported by the Authors Guild and the Association of Authors' Representatives, who filed a joint amici curiae brief. In their brief, the associations argue that, by filing suit against Rosetta, Random "seeks retroactively to re-define the rights it has acquired from authors for generations," and adds that the contracts signed by the three authors "cannot be 'reasonably read' to have conveyed electronic rights to Random House or its predecessors."
If the court grants Random's request for an injunction, the ruling would prevent authors from benefiting from electronic publishing by permitting only Random to exploit electronic rights, and would also "chill" the growth of the e-book industry by preventing entrepreneurial companies from acquiring the rights to "tens of thousands of works," the associations' lawyers contend. The brief notes that even if Random were to publish 2,000 backlist titles in e-book form, over 90% of its backlist titles may "never reach the eBook market," if the court backs Random's position.
The trial judge has given Random an extension until April 30 to file its reply to Rosetta's filing; oral arguments will be heard May 7.
