Apropos of the HarperCollins v. Open Road lawsuit over the backlist e-book title Julie of the Wolves, legal blogger Passive Guy (aka contract lawyer David Vandagriff) has written a fairly lengthy post looking at the question of whether e-book rights are covered in pre-e-book contracts. Passive Guy writes:
A fundamental legal question involved in construing a contract is what the parties intended at the time the contract was made. The intent must be manifest in some form in the written agreement. A secret intent by one party that the word tomato also includes avocado won’t bring avocados into the contract.
The classic formulation is that there must be a “meeting of the minds” of the contracting parties or else there isn’t a contract or the contract is limited to only those subjects for which the minds met.
A big problem HC has with its case is even showing an intent by both parties to include what we recognize as ebooks today into the 1971 contract in the absence of any language that points to an ebook.
Passive Guy points out that later contracts still have the same problem. Some try to future-proof themselves by adding a “whether now known or hereafter discovered” clause, but the problem PG finds is that implies a meeting of the minds about something neither party knew anything about at the time they signed the contract.
And even though the Julie one wasn’t, a lot of these contracts were drafted after e-books or similar information-retrieval systems were known to exist. One such system, Lexis, was very big in the legal world in the mid to late 1970s, finding its way into law schools in the 1980s and eventually every lawyer’s office—the same lawyers who wrote contracts for the publishing industry. Yet none of the publishing contracts from this era bother to mention it or anything like it.
Absent any contractual mention of ebooks or electronic books or a reasonably detailed description of an ebook reading and distribution system resembling one the lawyers knew intimately, the only reasonable conclusion is there was no intent to include ebooks in publishing agreements of that era.
I look forward to finding out how the Julie case unfolds. It will be interesting to see if the judge’s preliminary ruling bears any resemblance to that from the RosettaBooks case so long ago—and whether HC similarly drops the case if it appears not to be going its way. I suppose we’ll just have to wait and see.