In replying to Rosetta Books' brief opposing Random House's request that a federal district court judge prevent the e-book publisher from continuing to distribute e-books for which Random holds the print rights (News, Apr. 16), the publishing company maintained that its contracts give it the exclusive right to publish not only print editions of an author's work, but electronic versions as well. Random House's position was supported by an amicus curiae brief filed by Simon & Schuster, Penguin Putnam, Time Warner Trade Publishing and Perseus Books.
Random held to its stance that there is no meaningful distinction between an e-book and a paper book, and that e-books fall under the "in book form" clause found in Random's contracts. Random's brief further maintained that Rosetta publishes the same texts as print editions and quoted from Rosetta founder Arthur Klebanoff's deposition in which he noted that his firm publishes "the words of the author precisely as the author wrote them."
The company's reply brief attacks the assertion of former Random executive Catherine Fowler, who stated in her deposition that Random had concluded in 1994 that it did not own electronic rights to its backlist. Calling Fowler an ex-mid-level employee, Random said that she was unable to identify any senior-level executive who subscribed to her view and reiterated that Random executives have testified that the publisher's policy has not and does not concede that it did not acquire e-book rights to its backlist. By infringing on Random's copyrights to publish e-books, Rosetta is positioning itself in the marketplace as a competitor to Random and other publishers, Random argues. If allowed to continue to publish the eight books in question as well as other titles from Random's backlist, Rosetta will be undercutting Random's ability to develop its own e-book program, the brief states.
In their amicus brief, S&S, Penguin, TWTP and Perseus argue that a "ruling against Random House would result in thousands of publishing contracts being renegotiated, striking at the heart of the publishing industry." The brief states that the broad language "in book form" "was intended by publishers to prevent an author from attempting to allow a rival publisher later to sell the very same text of the book in the marketplace. With as much as 40% of a publisher's income derived from backlist sales, these common terms are essential to the economics of the book publishing industry."
Oral arguments are set for May 8.