The Ghost of Christmas Past

Perhaps someone at HarperCollins had just read 'A Christmas Carol' and wanted to be Scrouge and to be visited in the night by the ghosts of Authors Past, Present and Future.

As reported in Publishers Weekly, HarperCollins decided to dump a Christmas infringement present on Open Road in the form of a lawsuit on 23rd December. The suit is over Open Road’s publication of the e-book edition of Jean Craighead George’s bestselling and award-winning children’s book Julie of the Wolves which has sold some 3.8 million copies. The charge is that in 1971, George entered into a contract that gives HarperCollins exclusive publishing rights of the work “in book form,” and that this extends to ebooks by the inclusive clause “computer, computer-stored, mechanical or other electronic means now known or hereafter invented.”

HarperCollins also refer to “stated limitation of paragraph 20” of its contract, which refers to them having to seek George's consent to license rights in the work by stating that that does not permit the right for the work to be taken elsewhere. It is reported that Harpercollins is seeking an injunction against Open Road distributing any more copies and the destruction of copies.

Sometimes one has to take a firm stand to protect one’s rights and ensure that your investment is also protected. Other times one has to recognise that time has moved on and the intent you entered into in an old contract has long changed. The exercise can become more about flexing muscles and posturing to influencing others than about the individual case.

It is interesting to note that Jane Friedman, who set up Open Road, previously worked as CEO of HarperCollins.

The challenge could be that in 1971, some 40 years ago, the spirit of the contract that was entered into does not reflect the reality today’s today’s networked world. It was even before the PC, let alone the internet. However proving unworkable or unreasonable clauses, costs money and is not guaranteed an outcome.

The action could well win the battle for HarperCollins to retain their rights. There may be a out of court licence settlement, which effectively also may gag all parties, as like the earlier Random House versus Rosetta and also may act to stifle others looking to break free of the physical handcuffs. The declaration of war is however a far greater challenge for HarperCollins as it declares its stance not only on this one title by all those thinking about digitally moving on. It also sets an alarming precedent at a time when digital rights are being negotiated and warns all to avoid open 'catch all' clauses that may come back to haunt them in the future.

As we have seen News Corp is not adverse to bad publicity and this move is certainly not going to enamour them to many.