Have you tried to download the e-book version of Jean Craighead George’s Newbery Award-winning Julie of the Wolves recently?
Well, it hasn’t been available in the U.S. since last April, when I was lucky enough to download it to my Kindle.
Between October 2011 and April 2014, Open Road Integrated Media sold the e-book version after offering George a 50% royalty that HarperCollins, the publisher of the paper versions, refused to match. Instead of paying George a fair royalty for her work, HarperCollins decided to pay its lawyers a very large sum of money to fight for the right to control the e-book version of Julie of Wolves on its own terms.
In a dubious opinion last March, which I discussed in The HarperCollins Lawsuit: Keeping Authors Aboard as Traditional Publishing Sinks, the Southern District of New York proclaimed HarperCollins the winner. As I summarized in Julie of the Wolves: An E-Book My Children Won’t Read Until They’re Older:
I disagree with the district court’s analysis of the 1971 George–HarperCollins contract because the terms of the contract (1) gave HarperCollins the right to publish the novel in book form (as defined in 1971); and (2) reserved to George all other publishing rights. Plus, even if the 1971 contract included e-books (back when there was no such thing as even a household computer), HarperCollins breached the contract by insisting on a meager 25% royalty instead the 50% royalty referenced in the very same sentence of the 1971 contract they claim gives them the e-book rights.
Eight months later, on November 6, 2014, the Court gave HarperCollins injunctive relief that prohibits Open Road from publishing Julie of the Wolves, in addition to $30,000 in damages and a little over $7,000 in costs.
What the Court did not give HarperCollins, though, was even one dime of the more than $1 million it requested in attorneys fees (which was only 70% of the fees that outside counsel charged to HarperCollins in connection with this case!) because Open Road’s position, while unsuccessful, wasn’t “objectively unreasonable.”
As the Court explained:
[T]he mere fact that the Court was able to interpret the contract as a matter of law does not mean that the contrary argument was clearly unmeritorious or patently devoid of support. Our reticence to characterize the losing position as objectively unreasonable is informed by the fact that this dispute arose in the context of a developing, and still somewhat uncharted, area of copyright law.
I’d certainly say that Open Road’s position wasn’t “objectively unreasonable” because, as I’ve previously explained, I would’ve decided the case in their favor!
So, who are the winners and losers here?
Well, the losers include readers and traditionally-published authors, because the Court has allowed a publishing corporation to hold an e-book for ransom by refusing to honor the terms of its own agreement with the author and leaving the author powerless to take the work to other publishers. However, that control comes at a hefty price for the company: well over a million dollars in outside counsel fees.
In the end, it seems that the only real winners here are the lawyers who have everything to gain from litigious corporations willing to pay high attorney fees to ensure their “right” to nickle and dime authors.
Congratulations, HarperCollins, for spending a million dollars to throw one of your own authors to the wolves.* You suck.
*So to speak. This analogy might not hold up for those who have actually read Julie of the Wolves!
**For the Nov. 6, 2014 Memorandum and Order, see here (PDF).