Nimrod, Bluster and … Blair?

Publisher’s Weekly, whose managing editor bought my now-infamous copy of the new Harry Potter book, contacted the Christopher Little Literary Agency regarding their laughable demand that eBay pull an auction that had long since been completed:

While the item Collier posted on eBay was a genuine, legally obtained copy of the book, the agency defended its actions in an e-mail sent to PW. “The publication date for our client’s work Harry Potter and the Deathly Hallows is 21 July 2007 and we have not authorised any prior release or sale. Any such release and/or sale of said work would be an infringement of our client’s rights,” wrote Neil Blair, an attorney for the agency. “Without our client’s consent or approval Mr. Collier included a copy of our client’s work on his EBay advertisement and this amounts to an unlawful copying thereby entitling us to send the VERO take down notice which we in fact did.”

Blair goes on to say that it, “is not clear to us that this book was obtained through lawful means.” But Scholastic has accused DeepDiscount of the very snafu by which Collier said he unexpectedly got his copy early.

If Mr. Blair likes, I’d be happy to provide him with a fax of (a) my original order with DeepDiscount, (b) the email notice I received from DeepDiscount last week informing me that the book had been shipped, and (c) the packing receipt that came with the book. I’m sure Robin Lenz at Publisher’s Weekly would also be glad to produce the original shipping box, which was return-addressed to “DD,” or DeepDiscount.

I’ve sent the following for-quotation statement to Publisher’s Weekly regarding Blair’s statement:

“Mr. Blair’s argument, if you can dignify it with that term, is risible on its face, and I would refer him to the very basic legal principle of First Sale Doctrine. Having completed a sale though entirely legal means–I am not a party to any contracts between Christopher Little, Scholastic, DeepDiscount or any other distributor–I was the legal owner of the book, and had every right to do with it as I saw fit. I have no more violated J.K. Rowling’s copyright than I’ve flown around downtown Atlanta on a broomstick, and Mr. Blair knows it. I would advise him to limit his threats to people who are actually afraid of legal bullies.”

I don’t take kindly to bullying, Mr. Blair, or to slanderous accusations. I suggest that you apologize posthaste for accusing me of theft.

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27 Responses to “Nimrod, Bluster and … Blair?”

  1. NukemHill Says:

    Too awesome, Will. As it turns out, I may be getting my limited edition copy a day (well, half-day) early, as well. I received notification from the bookseller today that my book is in transit, and it is currently sitting at the local UPS warehouse. I’m expecting to see it on my doorstep sometime tomorrow morning. Good thing I’m getting off work early!

    Keep us updated. This has been a story rich with irony. The best kind!

  2. Glenn Kenny Says:

    Whatever hassle you get, eat it. I only hope C. Little & Co. dig up a real legal hook they can hang you on. Then you’ll see just what good it is to have friends like Glenn Reynolds…that is, not any good at all. I’ll be thrilled to listen to you wail as you’re hung out to dry. Creep.

  3. Foxfier Says:

    Wow, given the folks against ya, I’m 110% FOR you.

    Hey, GK, maybe you’re the creep?

  4. Kirk Says:

    Actually, the lawyer was referring to specific rights under copyright law. The owner of the copyright has the exclusive right to make the first distribution of a copy. The permission they gave to Deepdiscount was conditioned on first release occurring after midnight Saturday. That’s the basis for the claim.

    That said, it’s not how I’d recommend approaching a good faith purchaser/fan . The going in with guns blazing approach works best against small time IP pirates . They were probably in an adrenalin rush with the date fast approaching.

  5. Ron Coleman Says:

    The law of third-party liability for copyright infringement is pretty complicated, but courts have been pretty reluctant to find people in the chain of distribution liable. This is even more attenuated, because it’s not even clear Will’s copy hadn’t already been “distributed” — i.e., to him — by the time he got it. So Will’s “first sale doctrine” analysis would seem to hit the mark.

    As a contract law matter, Will was never a party to the contract between Deepdiscount and the publisher, so any conditions in that contract are immaterial to him.

  6. TJIC Says:

    I had my own run in with an idiot lawyer who didn’t understand the First Sale Doctrine.

    http://tjic.com/?p=6135

  7. Will D Says:

    Whatever hassle you get, eat it. I only hope C. Little & Co. dig up a real legal hook they can hang you on. Then you’ll see just what good it is to have friends like Glenn Reynolds…that is, not any good at all. I’ll be thrilled to listen to you wail as you’re hung out to dry. Creep.
    Posted by: Glenn Kenny at July 19, 2007 07:43 PM

    In substance and context, this may be the stupidest writing I’ve ever read.

  8. McGehee Says:

    I think Glenn Kenny is upset because the Wilson-Plame lawsuit was thrown out, so now he’s hoping to see Will Collier frogmarched out of the… uh, Vodka House?

  9. Subvet Says:

    Geez Louise, this is beyond bizarre. Don’t the people getting worked up over a piece of juvenile fiction have anything in the way of a life?

    I know, the question answers itself. ‘Scuse me, couldn’t help it.

    C’mon, it’s just a stinking book! Ten years from now the HP series will be part of a Trivial Pursuit game. GET-A-GRIP!

  10. rosignol Says:

    The permission they gave to Deepdiscount was conditioned on first release occurring after midnight Saturday. That’s the basis for the claim.

    If that’s the basis, their claim is against deepdiscount, not Will.

  11. Ardsgaine Says:

    Just playing devil’s advocate, Will, if you purchased a new stereo, and discovered later that it had been stolen, wouldn’t you return it to the owner? I see this the same way. No, you’re not guilty of the breach of contract, but your receipt of the book arose from a violation of the contract. Had you simply sat on the book, and rejoiced at being able to read it a few days early, no big deal, but you are profiting by DD’s violation of the contract. In effect, it is as if you sold the stereo after finding out that it was stolen from a celebrity in an attempt to profit on that fact.

    Or don’t you see it that way?

  12. thomas Says:

    Posted by: Ardsgaine at July 20, 2007 12:01 AM

    “Or don’t you see it that way?”

    I don’t. Nothing was stolen. Someone else violated a term of a contract… and may have to pay for it.

  13. mrobvious Says:

    Just be glad Deep Discount didn’t send you Howard Roark’s architectural plans.

    (Yeah, I posted the same thing on anearlier thread. Sue me.)

  14. RWBlack Says:

    How do you know when a society has lost its way? When a mere children

  15. Huggy Says:

    “…vicious precisely because the stakes are so small.”
    I blame the high tax rates, overegulationand too many people with time on their hands.

  16. Gunga Says:

    Next they’ll threaten you with the venerable “My dad can beat up your dad” gambit.

  17. TheDailyFresser Says:

    Okay folks…I’m coming to the table with 22 years of publishing experience under my belt, and I will FREELY admit that nearly every publisher (doubtless Scholastic is included) likes to ratchet up the chatter surrounding an “embargoed” book’s release by conveniently turning their heads when a few go mysteriously astray. Years ago, while working at a major publishing house, one of our lead embargoed books was Margaret Thatcher’s autobiography; SO embargoed was it that the company hired armed guards to make sure none of the volumes escaped from the printing and binding room in Pennsylvania. Somehow, one did, it was all over the news, the author was furious, the agent was screaming, and sales projections SOARED—dramatically and accurately.

  18. anonymous litigant Says:

    Anybody know which bar association admitted Colin Blair? Sounds like it’s time for a referral to the professional conduct committee.

  19. Ardsgaine Says:

    “I don’t. Nothing was stolen.”

    Except the author’s right to release the book on a certain date, and no sooner. “Stolen” might be a strong word for it, but her property rights were violated. I would be urinating into a high wind if I mentioned that at Kos, but it should mean something here.

  20. jum1801 Says:

    anonymous litigant said: “Anybody know which bar association admitted Colin Blair? Sounds like it’s time for a referral to the professional conduct committee.”

    No, a.l., that assumes that bar associations have an interest in the public good. Bar associations can act in the public interest, but only insofar as that interest is consistent with the good of the legal profession in general – meaning that which places lawyers in the optimum position for profit. When the two interests diverge, the public loses out.

    While the public at large may be offended by Colin Blair’s thuggery-in-a-$1,000-suit, no bar association would take the least adverse action against him for it. His tactics are precisely the kind of which bar associations pretend, loudly, to disapprove, but which in actuality are standard operating procedure.

    The public needs to remember that bar associations are for the lawyers, not the public. And yes, I am a lawyer.

  21. Shelby Says:

    Except the author’s right to release the book on a certain date, and no sooner. “Stolen” might be a strong word for it, but her property rights were violated.

    No, her (publisher’s) contractual agreement was violated. The author didn’t have to release it to her publisher, but once she did her protections against further release were solely contractual. (By “release” I do not mean copying, etc., which would implicate separate legal rights under copyright law.) Having been paid for her prematurely released book, Ms. Rowling’s (and Scholastic’s) remedies are solely contractual, and the criminal law regarding theft is inapplicable.

  22. Eric in Palm Harbor Says:

    “I don’t. Nothing was stolen.”

    “Except the author’s right to release the book on a certain date, and no sooner. “Stolen” might be a strong word for it, but her property rights were violated. I would be urinating into a high wind if I mentioned that at Kos, but it should mean something here.”

    The author’s right is not actually a right. The author has the ability to control the date of distribution, but the author failed to do so. Will has done nothing except receive what was ordered and paid for. He then resold the item, which is, in fact, a right.

  23. rbj Says:

    “Stolen” = crime. Criminal law
    This is a civil matter, a matter of contract law. A contract to which Will is not a party.

    “Stolen” is not merely too strong a word, it is an entirely wrong word.

  24. me Says:

    Profiting from someone else’s mistake. You go!

  25. Julia Says:

    I’m not familiar with publishing law, and I’m not going to pretend that I am. All I have to say is that I probably would have done the same thing in your position, save the humorous blogging, and am behind you completely. As long as you’re not running naked through a local middle school shouting who died, what’s the harm?

  26. Tennwriter Says:

    J.K. Rowling is either the richest or the second richest woman in the world. So, big money explains big fuss.

    Now as to why big fuss over children’s book…hmmm. 1)Hitler said something along the lines of ‘give me your children, and I will take over the nation’. Rowling teaches freedom with responsibility–basic social conservative don’t trust your gov’t or the bad people, and be ready to fight for the good and your friends. 2)We’re so rich we can afford to concern ourselves with the arts. I suspect there is an arts-great engineering cycle. Arts and money and effort spent on them empower great visions of the future, and then engineers come along and take that money and power from the arts and use it to realize some of those visions which then leaves everyone without a vision of the future, and slack sets in until a new cycle of art appears to create a new vision…

    And yes, I’m way off topic, but I’m responding to a commenter.

  27. Mikey NTH Says:

    If there was a breach of contract between DeepDiscount and the publisher, what damages would there be?

    Probably not enough to pay on hour of the publisher’s lawyer’s time.

    What should the publisher do? Make any future releases to DeepDiscount conditional on a ‘do not sell by this date’ with a specific punitive damage if it does so. Or withhold DeepDiscount from receiving any other offerings of the publisher.

    Considering the time that Will received the book, there wasn’t enlugh time to truly do any measurable damage. Best for the incident to be ignored and dealt with in any future contracts.

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