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HarperCollins Publrs. LLC v. Open Rd. Integrated Media, LLP

United States District Court, S.D. New York

November 6, 2014


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[Copyrighted Material Omitted]

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For HarperCollins Publishers LLC, Plaintiff: Robert Bruce Rich, LEAD ATTORNEY, Mark Joseph Fiore, Weil, Gotshal & Manges LLP (NYC), New York, NY.

For Open Road Integrated Media, LLP, Defendant: Joanne E. Zack, LEAD ATTORNEY, Boni & Zack LLC, Bala Cynwyd, PA; John Elliott Sindoni, Michael J. Boni, PRO HAC VICE, Boni & Zack LLC, Bala Cynwyd, PA; Robert J. Larocca, PRO HAC VICE, Kohn, Swift & Graf, P.C., Philadelphia, PA.

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On March 17, 2014, the Court filed a Memorandum and Order granting summary judgment to plaintiff HarperCollins Publishers LLC (" HarperCollins" ) on its copyright infringement claim against defendant Open Road Integrated Media, LLP (" Open Road" ), and inviting the parties either to reach a resolution or to brief the issue of remedies. No settlement having been reached, HarperCollins now moves for a permanent injunction, statutory damages, attorneys' fees, and costs. Open Road concedes that HarperCollins is entitled to costs but opposes the other relief sought. For the reasons stated herein, the Court grants HarperCollins' motion in part and denies it in part.


A. The Liability Opinion

We assume the reader's familiarity with the facts and legal conclusions described in our prior opinion. HarperCollins Publishers LLC v. Open Road Integrated Media, LLP, 7 F.Supp.3d 363 (S.D.N.Y. 2014) (" HarperCollins I" ). To summarize, the underlying dispute involved the scope of a 1971 publishing contract (the " 1971 Contract" ) between the late Jean George, author of the acclaimed children's novel Julie of the Wolves, and the publishing house Harper & Row, plaintiff's predecessor in interest. In 2010, Open Road contacted Ms. George to propose that it would publish an e-book edition of Julie of the Wolves. Although Ms. George invited HarperCollins to match the fifty percent royalty offered by Open Road, HarperCollins declined to publish an e-book on such generous terms. Ms. George then reached agreement with Open Road, purporting to authorize it to publish the e-book. Shortly after Open Road released its edition in 2011, HarperCollins brought this action, claiming that the e-book infringed HarperCollins' copyright interest in Julie of the

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Wolves under the 1971 Contract. Open Road responded that there was no infringement because e-book publication rights were outside of the scope of the 1971 Contract. After discovery, both sides moved for summary judgment.

In support of their respective positions, the parties made arguments not only based on the terms of the 1971 Contract, but also based on, inter alia, the course of performance under that contract and expert opinions on computer technology and the publishing industry. While our prior opinion discussed those arguments, our conclusion rested on the language of the 1971 Contract. A crucial provision in that contract, Paragraph 20, reads as follows:

Anything to the contrary herein notwithstanding, the Publisher shall grant no license without the prior written consent of the Author with respect to the following rights in the work: use thereof in storage and retrieval and information systems, and/or whether through computer, computer-stored, mechanical or other electronic means now known or hereafter invented and ephemeral screen flashing or reproduction thereof, whether by print-out, phot[o] reproduction or photo copy, including punch cards, microfilm, magnetic tapes or like processes attaining similar results, and net proceeds thereof shall be divided 50% to the Author and 50% to the Publisher. However, such license shall not be deemed keeping the work in print once the work has gone out of print in all editions.

(Emphasis added.)

Interpreting the 1971 Contract in light of the so-called " new use" line of cases, which address the recurring problem of how to interpret the scope of old copyright agreements in light of later-developed technologies,[1] we found that the emphasized language in Paragraph 20, " encompassing as it does the forward-looking reference to technologies 'now known or hereafter invented,' is sufficiently broad to draw within its ambit e-book publication." HarperCollins I, 7 F.Supp.3d at 372. We concluded that the 1971 Contract granted HarperCollins the exclusive right to license third parties to publish e-book versions of Julie of the Wolves, subject to Ms. George's approval, and thus that Open Road infringed HarperCollins' copyright.

B. Subsequent Events[2]

Open Road has stopped selling its Julie of the Wolves e-book, but it did not stop immediately. Our opinion holding Open Road liable was filed on March 17, 2014, and Open Road's counsel and senior executives received and reviewed ...

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