In today’s NYT, Motokh Rich has an article on the looming legal battles over who owns the rights to publish “backlist” books as e-books. Today’s WSJ has a similar article by Jeffrey Trachtenberg. As you might imagine, the authors (or their estates) who are looking to breathe new life into their catalog claim they own the rights. The publishers, of course, disagree. There are two things that are important about these articles from the legal publishing standpoint.

The first is the importance of a backlist. As Rich highlights,

Backlist titles, which continue to be reprinted long after their initial release, are crucial to publishing houses because of their promise of lucrative revenue year after year.

In trade publishing, having your book backlist is a goal because it is a sign that it sells year-after-year. In the legal publishing business, backlists are a bit different, but some similar examples would be Black’s Law Dictionary (in print) or the West Nutshell Series. The biggest difference between trade and legal publishing backlists is marketing. Legal publisher’s tend to always market their print titles. Direct mail, email, web banners, whatever. If it can be targeted and it’s relevant to Mr. or Ms. Attorney, backlisted titles will be advertised. In trade publishing, however, backlisted titles usually don’t enjoy such marketing efforts, and that typically doesn’t matter because the strength of the publication keeps the sales up.

This difference would suggest that being backlisted in legal publishing might even be better than in trade. But it isn’t exactly. Being backlisted in the legal publishing business isn’t a goal. Legal publishers like “new” and “updated.” Being current is relevant. Being old, isn’t. And currency motivates attorneys to purchase titles, that’s why legal publishers sell supplements, pocket parts, etc. If you don’t know or understand what is happening right now, you’ve already lost. After all, selling on fear is a staple of law content advertising.  No, you want to update, update, update, and be frontlisted every year.

But like trade, the backlist in legal publishing is important, just for a different reason. A backlist in legal publishing is meta. As lawyers, we rely on history to understand both the present and the future, and the value of the backlist grows as we consider how it might enhance our research about the law now. If a publisher has a backlist that isn’t incorporated as part of a CALR system (e.g., Westlaw, Lexis, Loislaw), or doesn’t have the rights to do so, the backlisted authors should start giving some thought on how to better monetize their content given the current web (fixed and mobile) trends. The recent discussions on the Tubes about the commoditization of primary law and how the battle of relevancy will be shifting to analytical resources makes this an even more pressing matter.

[As an aside, I've often been puzzled as to why Westlaw or Lexis doesn't give you the option to search older editions of frontlisted titles. There have been many times when I needed to look at an older edition of an updated title. From my perspective, all historical data is relevant, or at least could be.]

The second part of both articles I found important was the mention of the Random House and Rosetta Books litigation, which serves as some guidance (and when it comes to electronic books, there isn’t a lot out there) for authors who might one day find themselves staring at their contract and wondering what they might be able to do with their content. The decision is important because the district court decided that e-books are not simply printed books in a different disguise, and thus, a contract giving the publisher the right to publish, print, and sell a copyrighted work “in book form” does not give it the right to offer the work in a digital, e-book form.

In this case, the “new use” — electronic digital signals sent over the internet — is a separate medium from the original use — printed words on paper. Random House’s own expert concludes that the media are distinct because information stored digitally can be manipulated in ways that analog information cannot. Ebooks take advantage of the digital medium’s ability to manipulate data by allowing ebook users to electronically search the text for specific words and phrases, change the font size and style, type notes into the text and electronically organize them, highlight and bookmark, hyperlink to specific parts of the text, and, in the future, to other sites on related topics as well, and access a dictionary that pronounces words in the ebook aloud. The need for a software program to interact with the data in order to make it usable, as well as the need for a piece of hardware to enable the reader to view the text, also distinguishes analog formats from digital formats. [Citations omitted.]

Random House, Inc. v. Rosetta Books LLC, 150 F.Supp.2d 613, 622 (S.D. N.Y. 2001). Now, this case is old (relative to technological advancements), and I suspect that many legal publishers have already updated their old media licenses to reflect new media uses. But then again, I’ve seen some of the big publishers still using EULAs from the 90s for some of their content, so who knows how well they maintain their author contracts. In any event, Random House still serves as practical advice for authors and legal publishers when considering the effect of contractual language on rights to distribute content through emerging and future technologies. Consider “vooks,” for example. Does the right to distribute a work in an e-book format include the “video, audio, and speak-to-the-author-live” interactive edition?

I’m just glad we own the copyrights to all of our titles.

[Image (cc) by I like]