In a court filing, Open Road attorneys last week assailed what it called HarperCollins' "extreme" proposal for an injunction and more than $1.1 million in legal fees and damages to settle claims stemming from Open Road's unauthorized e-book edition of Jean Craighead George's Julie of the Wolves.
Claiming that the Harper proposal is based on "a misleading portrayal" of the facts, Open Road attorneys argued that not only has Harper not suffered the kind of irreparable harm necessary to justify its proposed remedy, in fact it has not suffered any harm at all. "Harper cannot prove any present harm, let alone irreparable harm," Open Road attorneys argued, noting that despite its win in court, Harper does not have the right to sell Julie of the Wolves e-books without the author's consent, "which it has never obtained" owing to "a fundamental disagreement as to a fair e-book royalty."
The latest filings come after HarperCollins and Open Road failed to arrive at a voluntary settlement following a district court decision that Open Road had infringed HarperCollins' copyright with its e-book edition of George's 1973 bestseller. In May, Harper attorneys asked the court for an injunction and a minimum of $30,000 in damages. But noting an element of "willfulness," to Open Road's actions, Harper asked the court to add to the damage award, and to include attorneys' fees and costs totaling nearly $1.1 million.
"This case will surely be looked to as an important precedent in this area," Harper attorneys argued, adding that "a sizable statutory damage award, coupled with the other remedies" would send an "appropriately strong message to digital publishers."
In its response last week, Open Road argued that it litigated the case in a "non-vexatious" manner only after two separate legal reviews supported its belief that George held e-book rights. The brief concluded that a damage award in the $750 to $30,000 range would be "sufficient," given that Open Road has not made significant profits (the publisher has netted just over $19,000 on sales of 10,495 copies) and that Harper lacks the explicit right to publish a digital edition of its own. Open Road also called the $1.1 million request for attorneys fees "shocking," and argued that such an award, if granted, would universally harm authors counter to the goals of the Copyright Act.
"Authors who believe they have retained e-book rights and traditional publishers who often overreach in claiming broad grants under the original contracts are often involved in negotiations over the exploitation of the authors' works in new media," the Open Road brief argues. "Given the disparity in economic resources, those negotiations are already heavily skewed in favor of the large publishers. The Court should not skew the balance further against authors who seek to assert their rights with the threat of million dollar attorneys' fee awards."
Notably, while agents for George's estate declined comment to PW last month on whether they had been involved in talks about turning Open Road's unauthorized edition into an authorized edition as part of a legal settlement, the Open Road brief confirms that has been a non-starter—at least so far. Attorneys told the court that, to date, HarperCollins has "not contacted the agent for the author's estate in an effort to negotiate an agreement," and that Harper swiftly rejected Open Road's proposal that the parties negotiate a license agreement, and demanded that the e-book be taken down.
The suit was first filed by HarperCollins in December of 2011. HarperCollins argued that two clauses in its decades-old contract gave the publisher the exclusive right to license an electronic edition to the book—albeit, with the permission of the author. Open Road, however, along with George, believed there to be no explicit grant of e-book rights in the contract. In March, judge Naomi Reice Buchwald granted summary judgment for HarperCollins, finding the contract language "sufficiently broad to draw within its ambit e-book publication."
At its heart, however, as Open Road's brief suggests, the case is more about e-book royalties. HarperCollins signed George’s Julie of the Wolves in 1971, for a $2000 advance and has since sold over 3.8 million copies in print. But according to court filings, Harper has refused to budge from a 25% net royalty on e-book sales, which George, before her death in May 2012, deemed fundamentally unfair. Open Road paid George a 50% e-book royalty.