

September 21, 2008

Victoria Strauss -- Self-Publishing Services and Defamation

According to Nolo, libel is "An untruthful statement about a person, published in writing or through broadcast media." Whoever publishes a defamatory statement is generally held to be as liable as the person who made the statement. So if you write a book and someone feels you have defamed them, they'll probably sue your publisher as well as you.

What about self-publishing services, though? Are they liable for the content of the books they print? Are they publishers, in any sense of the word? A recent lawsuit against Amazon's POD self-publishing service, BookSurge, put that question to the test.

The trouble began in 2003 when Mia Calcagni and Shana Sandler, both cheerleaders at a high school in Maine, had a falling out. Each complained to the school that the other was harassing her. When a swastika was spray-painted near Sandler's house in an apparent anti-semitic attack, Calcagni was convicted of criminal mischief.

Her parents, indignant, decided to write a tell-all book about the case--or rather, to hire a ghostwriter to write the book for them. (The book, unambiguously titled Help Us Get Mia, doesn't appear to be available any longer, and the website devoted to it has been removed, but you can still see its JacketFlap page, as well as a Google cache of the website--at least for a while.) When they weren't able to find a commercial publisher (is this starting to sound familiar?) they turned to BookSurge.

In February 2007, Sandler's parents sued for defamation, alleging, according to the original complaint, that the book contained "many false and defamatory statements." Included in the suit were not just Calcagni and the book's authors, but BookSurge. All defendants were alleged to be "negligent in publishing the false statements about Plaintiff."

The question before the court was whether BookSurge is a publisher in the traditional meaning of the word, and thus liable for the defamatory content of the books it publishes, or merely a distributor of content. The judge ultimately concluded the latter. Since BookSurge is "an independent company that transforms PDF documents into books with no editorial control and no communal process with the author" (i.e., it doesn't edit, fact-check, or review the material it prints), and furthermore "had no duty to inspect the work that came before it for defamation," BookSurge "neither knew nor had reason to know of the alleged defamation and therefore cannot be held liable for defamation."

Would the decision have survived, had the plaintiffs chosen to appeal? We'll never know. On September 4, the parties entered into a settlement, concluding the case.

Though the case has gotten surprisingly little press, several people have blogged about it, including Eric Goldman, Jeffrey D. Neuburger, and David Ardia of the Citizen Media Law Project. All seem to feel that the decision, in Goldman's words, "gives hope to these 'print-on-demand' vendors that they will...get some insulation from user-created problems even without statutory immunization." None mention an earlier defamation suit brought against POD vendor AuthorHouse, which resulted in an opposite decision.

In 2003, Gary D. Brock, former husband of successful romance author Rebecca Brandewyne, wrote a tell-all book about his ex-wife called Paperback Poison: the Romance Writer and the Hit Man. The book alleged, among other things, that Brandewyne had plagiarized her novels, abused drugs, and hired a hit man to kill Brock. Brock submitted the manuscript to iUniverse, which rejected it because of possible libelous content. He then went to AuthorHouse, which published it.

Brandewyne sued for defamation, and included AuthorHouse in the suit. The key issue, as in the Calcagni/Sandler case, was whether AuthorHouse was liable for the content of its books, in the same way that commercial publishers are liable. AuthorHouse argued that it merely printed the book after Brock signed its standard agreement, which states that AuthorHouse assumes no legal responsibility or liability "for any loss, damage, injury, or claim of any kind or character to any person or property." According to Publishers' Weekly, the judge "acknowledged that, based on its business model of dealing in volume, AuthorHouse 'cannot read every book cover to cover,' and that the company, to a certain extent, is entitled to hold authors responsible for the content of their work. But, [the judge] noted, 'The misconduct in this case is AuthorHouse’s failure to act when it had information that would have placed a prudent publisher on notice that the content of Brock’s book was harmful to the plaintiffs.'"

In 2006, a jury ordered AuthorHouse to pay Brandewyne a total of nearly $500,000: $230,000 in actual damages and $200,000 in punitive damages. Her parents, co-plaintiffs in the suit, were awarded $20,000 each.

Boiling all this down--the Calcari judge decided that BookSurge wasn't liable because of the nature of its business model, while the Brandewyne judge held that AuthorHouse was liable in spite of the nature of its business model. The Calcari judge also concluded that BookSurge was a glorified Kinko's ("an independent company that transforms PDF documents into books"), while the Brandewyne judge held AuthorHouse to the standards of "a prudent publisher." A key difference in these cases, of course, is the fact that Brock actually alerted AuthorHouse to the defamatory content of his book. If he hadn't, it's possible the court might have made a different decision. Nevertheless, these divergent outcomes suggest that the question of self-publishing services' liability for the content they print is far from resolved.

I'm certain we'll see the question tested further in the months and years to come.

(Note: The Calcari case isn't the only time BookSurge has been involved in litigation. Self-pub service Booklocker has brought suit against for requiring POD-based publishers and services to use BookSurge if they want Amazon to sell their books. Earlier, an unhappy author sued BookSurge for quality problems.)


P.N. Elrod said...

The regular publishing houses are taking out protection, whether inspired by cases like this or recent snafus with writers like Cassie Edwards, Kavya Vishwanathan, and James Frey.

Just in my hand today, a copy of my most recent book contract with the Penguin Group. On top is the insurance rider I had to sign which has broad areas of coverage for libel, invasion of privacy, plagiarism, copyright infringement, etc.

If I'm so stupid as to commit such offences, then I may have to share the deductible, which is a quarter million simoleons. As I don't have that kind of gelt, I better behave myself.

And some wonder why book prices have gone up and authors' advances have gone down.

Deb said...

So if I understand both decisions aright (I am no lawyer), any scam press or subsidy pub who claims to select books based on quality, and to edit same (regardless of whether they edit at all) might be held to the same standard as a reputable publisher?

Scam artists, look out.

Mary B said...

I think a major difference (and possibly a deciding factor in the cases) is that in the AuthorHouse case, it was shown that the ex-husband had disclosed to AH that iUniverse had rejected the book because of libel concerns and that AH had notice that the information was potentially libelous. BookSurge had no such notice.

And yes, I think that scammers who pretend to be "traditional publishers" and claim editorial overview are in fact making themselves vulnerable to libel claims.

Cheryl Pickett said...

This is another circumstance where the definition of what is a publisher and what it means to be "published" is clear as mud.

It also shows how important it is for authors to understand as much as they can about the process, instead of just paying money to the first vendor, or cheapest vendor.

Cheryl Pickett

Kristi Holl said...

Judging from the court listings, the attorneys are making a lot of money. Frankly, I hope this DOES scare a lot of the so-called publishers taking newbie writer money for "editorial services" they don't perform. (I know this is off subject, but that book! What a horrible example of how to resolve personal conflicts!)
Kristi Holl
Writer's First Aid blog

BuffySquirrel said...

It strikes me that the definition of libel as you reproduced it is inadequate; the lowering of the person's reputation in the eyes of right-thinking people is vital to the tort.

Flowerpot said...

Do you know anything about the Youwriteon competition going around? I've just been told I'm eligible to have my novel printed for free but "The Author grants to the Publisher the non-exclusive, worldwide license to publish the Work in print. The Author retains sole and exclusive worldwide copyright and all rights including moral rights to the Work in all formats and editions." Does this sound right? It's supposed to be somethign to do with the arts council. If you could email me I'd be most grateful -
Many thanks

Jane Smith said...

Flowerpot, I'd be very wary of giving my book over to this latest YWO publishing scheme.

As far as I can see, there's nothing to it that someone couldn't achieve alone, just by downloading their book into Lulu or Lightning Source, apart from their book being made available through the YWO website--and it's easy enough to add a link to your signature or profile there to where your book is online, which would have the same effect.

There's a lot of confusion about what rights are granted: YWO has posted on its own message board that under this scheme writers will retain all rights to their work--but if that were the case, YWO wouldn't have the right to publish it. I'd not touch this offer with a bargepole. Mind you, that's just my opinion and what do I know? I've just been a professional writer and editor for over twenty years now, so can't be said to have any expertise in this area at all...!

(Sorry, Victoria and Ann, to have taken this off-topic. I'll shut up now.)

Victoria Strauss said...

buffysquirrel said,


You aren't the first person to ding me on that. My purpose in the post was to look at the implications (for BookSurge and AuthorHouse) of the fact that libel must be published, so I quoted only that part of Nolo's definition (which I chose for brevity--the full definition can be found at the link I provided). I meant to note that, but forgot.

Flowerpot said...

many thanks for your comments - it has confirmed what I feared! Sorry to have gone off topic but someone suggested I alert you to this problem and I couldn't see an email address. Many thanks.

BuffySquirrel said...

I am the first sqrl, tho :).

The legal definition of "published" isn't the same as the book industry's. Although IANAL, I think "published" in the legal sense basically means "seen by someone other than the creator".

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