Shed a Tear for Franklin Electronics

My eyes moistened when I read that Franklin Electronic Publishers had been acquired by an investment company. The company played a significant role in my life and more importantly, in the histories of both the computer and book industries. In fact, it is not hyperbole to say that today's computer business would be radically different if a lawsuit brought against Franklin by Apple had had a different outcome.

The first electronic book I ever beheld was Franklin's Spelling Ace. Produced in 1986, the palmtop device, as they were then called, enabled users to type a word phonetically ("fonetiklee") on its keyboard and the Ace would display the correctly spelled word on its liquid crystal screen. It also intoned the word aloud in a lugubrious computer voice. My young son took great delight in typing in the clinical words for sex organs, then repeatedly hitting the voice function command at dinner parties.

Franklin launched its business in the early 1980s with the Franklin Ace 100 and 1000, clones of the Apple's Series II and II+ computers right down to Apple's ROMs. Franklin's justification for copying the software was that that because Apple's computer code was contained on a read-only memory rather expressed in a "fixed medium", as defined in the US Copyright Law of the time, it could not be copyrighted. Franklin also argued that Apple's operating system programs really constituted ideas. Copyright laws do not protect ideas, only the explicit expression of ideas such as novels, screenplays, musical composition and paintings, can be protected.

Not surprisingly. Apple took exception and sued. And even though Franklin freely admitted it had copied Apple's ROM and OS codes, Franklin won. Again, not surprisingly, Apple appealed. As Rob Hassett explained in his summary of the court's decision, in order to have a fighting chance to win its appeal, Apple had to stretch the definition of "idea". The 3rd Circuit Court of Appeals listened to Apple's contention that programs coded in machine language and contained on a ROM chip were copyrightable. The court concurred with Apple's arguments and decided that, in Hassett's words, "the general function of translating source code into object code qualifies as an idea." The lower court's decision was reversed in Apple's favor.

The implications and precedents for the burgeoning computer industry were incalculable and resonate to this day.

Franklin also released a line of IBM compatible computers, but in time Apple edged Franklin out of the desktop business. The firm subsequently focused on its core competence, handhelds (dictionaries, thesauruses, language translators, Bibles, e-books), where it held its own until a new generation of portable e-books drove its stock down to $1.00 and ownership into the arms of a company called Saunders Acquisition Corp. Two days later Franklin announced it had lost $6.5 million in its fourth fiscal quarter.

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It was over Franklin's palmtop Bible that the first shot was fired in what was to become a rights war between the trade book industry and the author and agent community. And I believe I may have been the first agent to detect the muzzle flash.

Sometime early in the 1990s I was reviewing the contract boilerplate for a book I had sold to G. P. Putnam when my eye fell on an unfamiliar provision. It was titled "Display Rights." I had no idea what it meant. But whatever it meant, one thing was clear: display rights belonged to the publisher. I picked up the phone and called Phyllis Grann, then Putnam's chief executive. "We saw this electronic Bible at a trade show," she explained. "It's amazing. You type in 'meek' and it takes you right to the passage in the Bible! We're not sure how it works, but we're pretty sure it has to do with information storage and retrieval. So we decided to lock those rights into our contract language. I hope it's okay with you."

Well, it wasn't. But after my agent colleagues and I reviewed the boilerplates of Putnam and its Big Publishing colleagues, it was clear they held the high ground. Every one of them had some version of information storage and retrieval rights to the books they published. Though storage of information on computers was well advanced by the late 1980s (computers had guided humans to the moon some twenty years earlier) and the concept of hypertext had been promulgated in the early 1970s, the notion of a book stored, delivered and read on a computer was pretty much restricted to science fiction. Indeed, the term "cyberbooks" had been coined as the title of a scifi novel of the same name by Ben Bova published by Tor.

It took a while for the agents to grasp the significance of information storage and retrieval as it applied to book contracts. A critically important aspect was how to define "out of print". Defining it was hard enough before computers because of vague language in publishing contracts about "term of copyright". But the introduction of computers raised the possibility that the mere storage of a book in a publisher's memory bank would entitle the publisher to keep the rights in perpetuity.

Aggressive lobbying on the part of agent and author organizations eventually forced publishers to rule out memory storage as their definition of "in print".

Some ten years or so would pass after the debut of Franklin's "palmtops" before the next milestone on the e-book road appeared in the form of the Rocket Book, and yet another decade before the Sony and Kindle jolted the publishing industry into the modern e-book era. But it all started with the humble little Franklin e-Bible that a Putnam executive played with at a trade show.

Richard Curtis