Looking to overturn a district court's decision not to order a preliminary injunction against RosettaBooks, Random House made oral arguments to a three-judge panel last week in New York's Second Circuit. In July, District Court Judge Sidney Stein denied Random's request for an injunction when the publisher sued Rosetta for copyright infringement after the e-publisher released e-book editions of print books published by Random.

Random House counsel Bruce Rich argued, "Analytically, the judge [Stein] came at it differently, inaccurately." Rich said that the three authors in question (William Styron, Kurt Vonnegut and Robert Parker) had granted Random the right to sell the reading experience, not just a paper edition. "If a friend asked if you had read Sophie's Choice," after you read the e-book, you would say yes, Rich said.

Rosetta's attorneys countered that the judge was correct in construing the term "in book form" narrowly, taking it to mean only in paper format. The addition of the word "form," said Rosetta lawyer Roger Zissu, would have been "superfluous" had it not been meant to exclude nonprint rights.

The judges sparred with both lawyers, with judge Jon Newman seeming to tell Rich at one point that while Random might have a case at trial, it might not meet the higher standard of an injunction.

Another judge spent several minutes questioning Rosetta about the distinction between distributing a copy of a book via fax, whose rights presumably were granted to the publisher, and an e-book. Both, he noted, involve the converting of text to digital impulses. Zissu explained that the difference lies in e-books' status as a "a new medium."

A ruling isn't expected for several weeks. A date for trial before Judge Stein has not been set.