Creative Commons Media Neutrality and eBook Rights after Rosetta v. Random

Here's where it gets complicated.

Not so long ago, book publishers had no idea that there would be such things as digital books. Publishing contracts mentioned nothing about ebooks. Literary agents made sure to keep derivative rights separate, so that translation rights, film rights, stage adaptation rights, etc. for a successful book could be separately monetized.

When ebooks started to become important, the digital publisher Rosetta Books took advantage of the situation, and started acquiring ebook rights to well-known books such as Kurt Vonnegut’s Slaughterhouse Five. This did not please the print publishers at all. Random House, one of the "Big Six" US publishers, took Rosetta to court, saying that their publishing contracts gave them exclusive rights to distribute books, and ebooks were books.

And here’s where it gets REALLY complicated. The District Court ruled against Random House, but narrowly, and the Appeals Court upheld. It wasn't that the ebook's bookness was obvious one way or another.  The courts only refused Random House’s request for an injunction.  Random House had asked the court to order Rosetta Books to immediately “cease and desist” selling ebook editions of Random House books.  Without an injunction, Random House would have had to continue with a lengthy legal preceding to assert its publication rights.

Instead, Random House negotiated a settlement with Rosetta Books, one which allowed some older books to be issued in ebook format by Rosetta. Rosetta got their ebook rights and Random got an undisclosed revenue share, according to Publisher’s Weekly. The details are not public, but the practical result seems to be that if Random House does not want to reissue an ebook of a book based on an older contract, they will allow the author to contract separately with a third party, such as Rosetta.   Open Road Media is a more recent, and more aggressive, ebook "reprinter," and they have also contracted separately with authors and estates for ebook editions, such as the "enhanced" From Here to Eternity; Random House retains print rights only.

Despite this uncertainty, the book publishing industry has managed, for the most part, to avoid destructive legal battles. It seems to be understood by literary agents that ebook rights for works under pre-Rosetta print contracts are to be offered first to the publisher with print rights. While Random House will often waive ebook rights, Harper, S&S, Penguin, Macmillan, Hachette seem to block 3rd party licenses, slowly adding the backlist ebooks to their ebook catalogs, and only if they can get authors to accept the current standard ebook royalties, 25% of net.  If no agreement can be reached on royalties no ebook is published.

For other publishers, the situation is confusing. According to Rosetta, "in England, the agent and author community has been clear for ten years that these backlist electronic rights are owned and controlled by the authors". Smaller publishers will often revert ebook rights because conversion and distribution costs for backlist books make it too expensive to create an ebook only to keep ebook rights.

The effect of the Rosetta v Random non-decision has been that a large number of works whose print rights remain with a publisher have ebook rights which  may be subject to dispute.  Often these books are scholarly works or trade books with little commercial value.

Our goal in building Unglue.it is to work with rights holders to re-license books such as these with the financial backing of book lovers everywhere. These "unglued ebooks" would be "given to the world" under something like a Creative Commons (CC) license. But how can such a license be applied when there is  such uncertainty around ebook rights?

One problem is that the Creative Commons licenses are media neutral. If I release a print book under a CC license, there's nothing in the license to stop anyone from scanning it, turning it into an ebook, and distributing it on their website. Similarly, a CC ebook can be printed and bound, and redistributed with the same license, so long as the other license terms are obeyed.

It's not enough to have ebook rights to release a Creative Commons ebook, you need to have print rights cleared as well! ¹ (If you thought this article had reached the zenith of complicationness, you thought wrong.)

If what you're really interested in is ebook rights, then why use a Creative Commons license? With a CC BY-NC-ND license, the allowed noncommercial print uses are probably not very valuable.

Looking at this issue with our legal counsel, we considered the option of creating our own "Unglue.it eBook License" which would be similar to Creative Commons but which would prohibit even non-commercial printing. Unfortunately, this option would:

1. require us to establish an entirely new publishing "standard" license;
2. add legalese and restrictions that supporters and rights holders alike would find unfamiliar and undesirable;
3. lose the benefit of the universal and clear standards of the Creative Common licenses.  CC licenses, for example, can be recognized and acted on by automated search engines.  Precedents exist for what is allowed. For almost a decade, CC licenses have allowed authors such as Lawrence Lessig and Cory Doctorow to publish successful commercial print and ebook editions alongside open access, CC-licensed ebook editions.

A different strategy would be to use a standard CC ND license, but to add a technical obstacle to printing which does not conflict with open access for the digital version.  If we created something inherently digital (e.g. with revisions that include animations throughout that can’t be printed), then printing a version without animation would violate the non-derivative aspect of the license.

We're not enthusiastic about this option either.  Just as legalese confuses normal people, the subtleties of media technology are likely to confuse lawyers and Judges. If someone wants to object to our interpretation of a “derivative use,” there's no technology that can keep them from suing.

A third option is by far our top choice, and is the one we will pursue. Get the various rights holders to agree among themselves!  Since the CC BY-NC-ND license only allows incidental and not-for- profit printing of ebooks, print publishers willing to let an author unglue an eBook using this license should also be willing to waive any conflict with their “exclusive” print rights.

Authors and publishers have mostly managed to get on with business without a clear legal decision on whether an ebook is a book. The possibility of a crowd-funded payoff shared by print and digital rights holders should create a strong incentive for them to work together to unglue the ebook.

How hard could it be?

Notes:

1.  Or at least, you need to have any publisher with “exclusive” print rights waive those rights with respect to any “non-commercial” printing of a CC ebook for personal use.
2. My colleague Amanda Mecke contributed to this article.
3. Yes, that's the new logo for the Unglue.it service, coming soon!
4. Standard IANAL disclaimer.