A few weeks back, the This WEEK in LAW panel discussed one of my recent blog posts on an eBook deal in 2011 that violated an earlier publication deal from 1971. Guest panelist Nancy Sims brought up an excellent comparison Supreme Court case, New York Times v. Tasini, from 2000. Sims discussed the negative outcome these types of agreements have on access to publications, especially classic publications and publications that might not be in an economic position to gain the attention of the larger publishers for being pulled forward into the digital age.
As Denise Howell requested, I went to find the original contract that was signed back in 1971 using my trusty friends over at Bloomberg Law. Unfortunately, the exhibits to the docket that provided access to the original contract were filed under seal. When I reached out to Bruce Rich, counsel for HarperCollins, he was unable to offer any additiona details due to the ongoing litigation with the case. Our curiosity surrounding the 1971 contract – such as who was the original drafter, if they drafted in anticipation of future media formats, or what inspired them to draft with such broad language at the time – will have to be satisfied by the fragments of the contract that were made public through the opinion of Judge Buchwald.
Despite a lack of access to the original agreement, this case can still serve as a valuable lesson in contract drafting. Watch the discussion from This WEEK in LAW on YouTube.