From: Sean Andrews <[log in to unmask]>:
Date: Tue, 31 Jan 2012 09:55:51 -0600
> From: Joseph Esposito <[log in to unmask]>
> Date: Fri, 27 Jan 2012 22:44:28 -0800
>
> Well, maybe so, but I would think (and hope) that the matter of
> copyright trumps the social concerns you appear to be alluding to.
> It's a hard thing to have your rights taken away because they are
> inconvenient to someone else.
>
> Joe Esposito
Copyright is not a natural right. It is granted to authors by society
on the assumption that doing so will encourage more people to follow
in their footsteps, thereby promoting, "the Progress of Science and
useful Arts." The social concerns, in other words, are the only
reason copyright exists and therefore trump any individual claims to
the material.
It's also worth noting that this is not necessarily a juridical
argument except in so far as we are speaking of the cultural
legitimacy of the law: the more rights holders (which are distinct
from "creators" as the present case illustrates) advocate the
extension of copyright terms and the mangling of licensing
arrangements to obfuscate the rights they hold so they can capture
every possible thimbleful of value from every possible technological
innovation in the delivery of content, the more they undermine the
process of culture, the legitimacy of the law, or both.
More to the point, in the present case, the rights being taken away
are not being taken away from the authors - i.e. people who did the
primary creating - but from the company who, long ago, distributed
their book and has since failed to publish them in e-format or clarify
the author's rights on the matter. I recognize that editing,
publicity, and typesetting take time, but this doesn't mean Harper
Collins alone is able to control all future iterations of the work.
Here's an interesting examination of the actual text of the lawsuit.
http://www.thepassivevoice.com/01/2012/harpercollins-vs-open-road-media-oddities-and-queries/
Two things stand out for me:
1. the original contract is not included in the suit and, in the words
of this writer, "Only 17 words from the contract are included in the
Complaint, none of them constituting a complete sentence." This
indicates that HC is trying to construct its rights to this work about
40 years after the fact.
2. the complaint states that HarperCollins said they controlled all
e-book sales and intended to put out an e-book, yet almost a year
later had not done so. The point he makes here about licensing is
interesting in that he compares it with the recent case in digital
music, which Eminem won based on the rights he is presumed to have
retained (again, as an artist who directly created the work). I made a
similar comparison (and recommended a compulsory licensing framework
for books which I'd be interested to hear your thoughts on) here:
http://breakingculture.tumblr.com/post/14222416997/despite-efforts-to-salvage-it-including-the
Whatever the merits of the suit, the books that this company is
creating are far more complex than any of the digital books HC is or
probably will put out. It joins (coincidentally) Melville house and
several other major publishers in creating enhanced or illuminated
e-books
http://online.wsj.com/article/SB10001424052970204468004577169001135659954.html?mod=googlenews_wsj
On the other hand, Open Road evidently has relationships with many
other publishers (as partners) on its website. Authors are even
divided into categories by these relationships (notably George is not
listed):
http://www.openroadmedia.com/authors.aspx
I can't imagine that Open Road didn't try to contact HarperCollins and
arrange for this relationship - again, at the request of the author.
George's book is obviously a big seller: WorldCat has over 170
different editions and Amazon lists a good many of them as well
(notably, if you'd like a print copy, you can pick up one of the
nearly 600 used copies of the book, starting at $0.01).
Like many of these cases, Harper Collins is using a lawsuit to either
undermine a disruptive business model or get a piece of the cut from
any success that business has, which may very well amount to the same
thing. If every digital publisher has to coordinate publication not
only with the author but with every past publisher who could claim the
vagaries of their contract allow for exclusive rights to any and every
derivative work, it will be virtually impossible for anyone but a
company with HC's legal muscle and budget to do anything new.
Open Road may have erred in some way, but like Google and Hathi, the
rights are so muddled the only reasonable way forward is to trailblaze
and hope you make it through the thicket in one piece. Or, rather,
it's completely irrational to do it this way, but it is only with
these kinds of animal spirits that anything will get done.
In the middle there are authors who apparently want to be able to make
the most of new technology to sell their works to people who want to
buy them. So far it looks like hundreds of books are included in Open
Road's list and who knows what kind of product they were trying to
create for this piece of literature. Their model could allow for a
completely new version which barely relies at all on the work HC did
four decades ago. I have a hard time seeing Harper Collins - News
Corporation property and infamous purveyor of evaporating library
e-books - as a victim in this case. They are acting like oversized
rentier bullies and I see no protection in the copyright clause for
that.
Sean Andrews
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