Posted by Victoria Strauss for Writer Beware

Last week, the publishing world was abuzz with news that Simon & Schuster, Hachette, and HarperCollins intend to delay the release of ebook versions of most of their hardcover titles by three or four months, rather than releasing the ebooks simultaneously with hardcovers (this delaying process is known as “windowing,” and publishers have historically used it to separate hardcover and paperback editions, allowing the more expensive and therefore more profitable hardcover to build sales before issuing the cheaper paperback). According to Carolyn Reidy of S&S, “The right place for the e-book is after the hardcover but before the paperback.”

Predictable outcry ensued from ebook enthusiasts, and just about anyone with a beef against large commercial publishers. S&S, Hachette, and Harper were accused of being dinosaurs, of shooting themselves in the foot by alienating readers, of trying to delay ebook adoption out of fear or greed, of clinging to processes and categories that the digital age, young as it is, has rendered obsolete.

There were also more nuanced responses. Jane Litte at Dear Author provided a fact-filled survey of windowing arguments. Ron Hogan at GalleyCat also looked at the arguments, observing that “if you want to create an enduring hardcover-digital-paperback cycle, you need to convince readers, especially digital-embracing readers, that this cycle offers them genuine value”. Very interesting was Mike Shatzkin’s speculation that, rather than wallowing in the dustbin of publishing history, the publishers are actually attempting to curb the might of Amazon, and take back control of ebook pricing. And I agree with this comment from Craig Morgan Teicher at eBook Newser:

Underlying these questions is the deeper question of what exactly an eBook is relative to a hardcover: is an eBook, like a paperback, a cheaper version of a hardcover? Or is it something entirely different, a new format for which there is no precident in previous publishing models?

Which segues nicely into the second big piece of ebook news that broke last week. As reported by PW and the New York Times, Markus Dohle of Random House sent a letter on Friday to dozens of literary agents, claiming that the company’s older contracts give it the exclusive right to publish in ebook form, even where the contracts pre-date the existence of digital formats and/or their language does not mention electronic rights. From the letter:

Our older agreements often give the exclusive right to “publish in book form” or “in any and all editions”…Such grants are usually not limited to any specific format, and indeed the “form” of the book has evolved over the years to include variations of hardcover, paperback, and other written formats, all of which have been understood to be included in the grant of book publishing rights…Whether physical or digital, the product is used and experienced in the same manner, serves the same function, and satisfies the same fundamental urge…Accordingly, Random House considers contracts that grant exclusive rights to publish “in book form” or “in any and all editions” to include the exclusive right to publish in electronic book formats.

The claim appears to have been spurred by RH’s efforts to digitize its backlist (and also, no doubt, by the accumulating evidence that electronic rights are on track to become extremely valuable–something that, pre-Kindle, was not at all apparent). The Times also speculates that RH is concerned about competition from startups like Open Road Integrated Media, which has signed agreements to produce ebook versions of the work of RH’s William Styron, among others.

RH’s use of the terms “in book form” and “in any and all editions” suggests that it considers e-rights to be part of the primary grant of rights (since that’s typically where these terms occur). An argument can be made against this, since many publishing contracts treat them as a subsidiary right, possibly to be negotiated separately (for instance, my most recent contract with Harper required the publisher to come back to the negotiating table if it decided to license or exercise e-rights). Also of concern: there’s no wording in pre-digital contracts to address the rights reversion problems posed by always-in-print electronic editions. Unless that’s dealt with in whatever addendum or amendments RH plans to offer to authors with older contracts, those authors may find it extremely difficult ever to regain their rights.

This is actually the second time RH has attempted to lay claim to electronic rights in pre-digital contracts. In 2001, a number of authors (including Mr. Styron) signed ebook contracts with epublishing startup Rosetta Books, reasoning that, since their contracts pre-dated the existence of ebooks, they could dispose of e-rights as they chose. RH filed suit, with the same claim it’s making now: that the right to publish “in book form” includes not just print, but digital, and Rosetta was therefore committing copyright infringement.

The courts did not agree. RH’s request for a preliminary injunction was denied by a federal judge, who ruled, on the basis of RH’s own contract language, that “the right ‘to print, publish, and sell the work[s] in book form’…does not include the right to publish in the format that has come to be known as the ‘ebook.'” (An analysis of that decision can be found here.) An appellate court, to which the decision was appealed, agreed. The parties eventually settled, with Rosetta agreeing to pay licensing fees to RH.

So what does it all mean? Are ebook delays, and RH’s electronic rights grab, part of the painful but necessary experiments that accompany all paradigm shifts, or the death throes of dinosaurs? In the discussion of ebooks, ebook readers, and digital issues in general, there’s much that’s murky–but the one thing that is very clear, at least to me, is that no one knows exactly where any of it is going. Plenty of people think they do–especially those who daily declare the imminent death of publishing as we know it. But prognostication only serves itself, since in the end, most of it turns out to be bunk.

Personally, I think it’s more interesting just to watch what happens.