Today, while the e-book debate over copy-protection schemes and the law still simmers, an even larger legal obstacle has arisen. This time, the tension is not between untrusting authors and the public, but between traditional, hard-copy publishers and their New Economy counterparts.
At the center of the storm is a David-and-Goliath lawsuit filed earlier this year against RosettaBooks by Random House. Rosetta is an upstart e-book publisher that offers a modest collection of well-known titles in the new electronic format.
Many of its books are available in the Microsoft Reader, Adobe eBook and Adobe Reader formats. It promises to offer future titles in the Gemstar and Peanut formats, which allow people to read books on special e-book hardware devices and common PDAs such as Palm handhelds, respectively.
Random House is the well-known publisher that bills itself as "the world's largest English-language general trade book publisher." It was founded in 1925 and today is a division of the Bertelsmann Book Group. (Bertelsmann has gained attention in Internet circles in recent months for its "strategic alliance" with Napster through its music division, BMG.)
In its lawsuit, Random House has asked a federal district court in New York to stop Rosetta from publishing a number of titles in e-book format. The titles--including some by such well-known authors as William Styron ("The Confessions of Nat Turner"), Kurt Vonnegut ("Slaughterhouse Five") and Robert B. Parker ("Promised Land")--were previously published by Random House or its predecessors under contracts as many as 40 years ago.
Random House maintains that, under the contracts with Styron, Vonnegut and Parker, Random House has the exclusive right to publish the disputed titles "in book form." Those three words are the key to this lawsuit and, perhaps, to the future of the nascent e-book industry.
Thus, this lawsuit ultimately boils down to one perplexing question: Is an e-book a book?
In their first in-court meeting last week, Random House and Rosetta debated this question and the merits of the lawsuit in a preliminary hearing before the judge overseeing the case. While Random House maintained that e-books are nothing more than a faithful reproduction of the original work, Rosetta attempted to distinguish e-books from their hard-copy counterparts by pointing out the electronic features--such as searching, linking and highlighting--that make e-books something other than books as we've always known them.
This is not an easy case. On the one hand, despite some technological advantages of e-books, these products indeed contain at least the same content as the hard-copy counterparts previously published. And the name "e-book" was created (and is used repeatedly by Rosetta) for an obvious reason.
On the other hand, how could an author grant a publisher the right to publish his book in a format that did not exist at the time he signed a publishing contract? (Although people have been reading documents electronically for years, Rosetta reportedly asserts that e-books were essentially unknown until the mid-1980s--an assertion made all the more believable given that publishing contracts have not mentioned them until recently.)
Although Rosetta obviously has a lot at stake in this case, the outcome is being watched by many others and ultimately could have a significant effect on an entire industry. Until this lawsuit is resolved, many e-book publishers will be unlikely to publish titles previously published by others for fear of getting served with lawsuits of their own.
The issue of electronic publishing rights and the law is not confined to the new e-book industry. Though the Rosetta case is in its infancy, another important case--New York Times Co. v. Tasini--has reached the U.S. Supreme Court, which this summer is expected to rule whether online database and CD-ROM publishers have the right to include content from freelancers who originally wrote for hard-copy newspapers and magazines.
And recently, some freelance photographers stopped accepting new assignments from Forbes magazine because of a dispute over how their photos are used on the Internet.
Electronic publishing raises a host of legal issues that were not envisioned just a few years ago. How these issues are resolved could affect electronic publishing for years to come.
Biography
Doug Isenberg, a lawyer in Atlanta, is the editor and publisher of GigaLaw.com, an award-winning Web site that provides legal information to Internet professionals on topics including online copyright law, domain name disputes, privacy in cyberspace and Internet patents. Isenberg writes and speaks frequently about Internet law and is the author of the upcoming book "The GigaLaw Guide to Internet Law," to be published by Random House in fall 2002.
