When Infringement Meets Online Publishing

Use these links to jump to different sections:

• Author Concerns Over E-Books
• Publishing Contracts and Copyright Infringement Claims
• Find an Experienced Intellectual Property Law Attorney

In the 1990s, as computers and Internet access became household norms, the advent of e-books held the promise of accessing bestsellers with a mouse click. In 2000, Stephen King released a novel exclusively on his Web site. Bibliophiles debated the merits of flat-screen reading versus the tactile pleasure of dog-earing favorite pages. Then, not much happened.

Author Concerns Over E-Books

“Many authors don’t like the idea of their books being available in e-book form,” says Dale Cendali, an intellectual property lawyer at Kirkland & Ellis in New York City.

Cendali, whose clients have included J.K. Rowling and Twentieth Century Fox, says e-books carry concerns beyond tactile enjoyment.

“Once you make anything available digitally, there’s the potential for serial infringement. Illegal downloading is hurting the music industry. If e-books become more prevalent, this is going to become more of a problem.”

Publishing Contracts and Copyright Infringement Claims

R. Bruce Rich, an intellectual property lawyer and co-author of “The Business & Legal Guide to Online-Internet Law,” says, “[These legal issues] go back to when the publisher got the right to publish in book form and what those rights encompass since many of these contracts predate the electronic age,” he says.

The Question of Fair Use and Google’s Alleged Infringement

A recent high-profile copyright infringement lawsuit concerned Google’s right to reproduce copyrighted material online and illustrates the significant stakes of these claims.

In October 2005, The Association of American Publishers organized a copyright protection suit against Google on behalf of five major U.S.-based book publishers. At issue was Google Book Search (GBS), a searchable database and search engine of books in print at several prominent universities.

“This case [sought] not damages but a declaration by the court that Google commits infringement by scanning entire copyrighted works without permission,” explains Cendali. “Google argues that it’s not making entire works available, only searchable for information-gathering purposes.”

By making only portions of the works available, Google claimed its actions fell under the “fair use” exception to copyright infringement. “The question was,” says Cendali, “do they have the right to copy it unilaterally, or should they have to go to the copyright owners to strike a deal?”

Rich says work in an e-book deserves equal protection and exclusive rights. “It still retains copyright,” he says. Cendali adds, “It was clear from previous case law that… the right to permit someone to publish their book as an e-book is a right that the copyright holder has. The question was whether what Google is doing is infringing that right or not.”

In April 2014, after years of negotiation between the parties, followed by litigation in the U.S. District Court for the Southern District of New York, the 2nd Circuit Court of Appeals ruled in Google’s favor on the question of fair use.

Find an Experienced Intellectual Property Law Attorney

If you are an author seeking to secure copyright protections for your creative work, reach out to an intellectual property lawyer for further guidance and legal advice. For more information on this area of intellectual property law, see our intellectual property overview.