Random: 'Our digital rights are here, in black and white!'

Last Friday Random House Inc sent out this letter to agents about their digital publishing plans. Clearing up misunderstandings over ‘older agreements’, it states: ‘Random House considers contracts that grant the exclusive right to publish “in book form” or “in any and all editions” to include the exclusive right to publish in electronic book publishing formats.’ Unsuprisingly not everyone agrees – including the estate of William Styron.

Random’s assertion is particularly bold in view of Random House Inc v. Rosetta Books Inc. In 2001 Random sought an injunction to prevent Rosetta from publishing ebooks of eight titles. Random said the digital rights belonged to them under licences to publish in ‘book form’ dated 1961–82. The judge disagreed. His conclusion was based on a detailed analysis of other terms of the contracts, not the fact that the licences pre-dated ebooks – which suggests that US agent Nat Sobel isn’t necessarily right when he says that ‘contracts 20 years ago didn’t cover electronic rights’. The point is that Random may have some digital rights but it’s impossible to generalize.

Many American authors must now be resetting their junk email settings having received not just one but two emails about their digital rights in the last few days. Yesterday it was the notice of the Google Amended Settlement. Are the two linked? Certainly – Random can only claim Settlement revenues if it has digital rights. (Should a publisher with print rights – but not digital rights – claim print-on-demand revenues under the Settlement...?)

As I discussed in a paper to the CLT Copying Without Infringing conference a few weeks ago, the ownership of digital text rights is also a debatable issue in English law where ‘volume form’ rights are often granted. Lord Hoffmann’s rule in Investors Compensation Scheme v. West Bromwich Building Society looks on the face of it capable of slicing through any Gordian knot: ‘Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.’ However, not only can putting yourself in the shoes of that person prove difficult but ‘meaning’ is not necessarily restricted by what was technologically available at the time of the contract.