District Judge Sydney H. Stein leveled the playing field
between RosettaBooks and Random House Publishing
with one simple sentence.
This decision has huge implications for all writers and authors.
Judge Stein defined a new format, entitling authors to separate compensation for the sale, publication, and use (archival or not) of their work in the electronic marketplace!
When Random House filed their Amicus brief, they were supported by more of their equals: Penguin Putnam, Inc., Simon &Schuster, Time Warner, Trade Publishing and The Perseus Group.
The publishing giants argued presumptions, most notably contracts inked long before the existence of new technology. They voiced their complaints and concerns about backlist titles that were the financial backbone of their companies.Yet they reamined unable to satisfy the Judge's simple request, which was, in light of their suit, that they prove to him: why an e-book is a Book
RosettaBooks negotiated in good faith with authors to electronically publish their work.This was a contractual arrangement previously non-existent with the authors' original publishers.The crux of the decision cited the e-books medium as a "new use". The books were distributed via an electrical, digital signal sent over the Internet, and was therefore a separate medium from the original use- printed words on paper.This, ironically, was defined in part by the "experts" called on behalf of the Publishers.
| e-Book | Print Book |
|---|---|
| Digital information that can be manipulated | Analog information that cannot be manipulated |
| User Options include choices in Fonts, Styles | Fixed Format: No Options |
| User Can Search Electronically for Specific Words, Phrases | Not An Option |
| Users Can Organize, Bookmark and Highlight Electronically | Possibly, Manually, should they opt to do so. |
| Users Can Hyperlink to Related Material Outside of the Work | Not An Option |
| Software is required to make data interaction useable | Nothing required to Read |
| Hardware is required to view text | Eyes only |
The Publishers continued to press their point, specifically that the language contained in their Contracts (referring to "the books") precluded any format, developed or not at the time of signing.
The Judge, however, clearly disagreed.
And while other, petty, "splitting hair" type arguments were made, the irrefutable fact remained:
An e-Book is NOT the same as a traditional paper-formatted, print Book. This decision enforces and interprets simple contract law (the real issue).
RosettaBooks, gained the support of the 7800 member strong Author's Guild, as well as the Association of Authors Representatives (representing more than 350 literary agencies) and made a very worthwhile point; they succeeded in having the electronic market defined as a new and separate medium.
While the decision is remarkable in terms of an extra bargaining point, the Publishers erred only in overlooking this aspect in the rewriting and/or renegotiating of their existing contracts. Electronic books have been on the horizon for some time; the idea and format are known to all concerned. Most publishers have wasted little time in revamping new and existing contracts to include e-book rights in them.
RosettaBooks found a small opening and went for it, in much the same way good hockey player spots a tiny, unprotected opening in the coverage of the goalie's net. They should be congratulated equally for finding it, and for the resulting definition.
Sometimes that extra goal can force overtime or even win the game. This particular game is nowhere near being over.