The percentage-of-profits argument seems good on its face, but let's look further.

First, let's clarify: it's a percentage of sales.  Percentage of profits would require that they expose a balance sheet.  Movie studios are infamous for finding ways to pad expenses, so percentage-of-sales is an act of good faith, right out the gate.  It also implies a greater business distance between the self-publishing platform and the author.

Next, let's look at details.

Traditional publishers take 92% of the paperback gross (retail sales price).  Some of that 92% goes to the distributors and bookstores, but that's typically about 40% on paperback, meaning that the publisher is still taking 6/7 of the wholesale price.  (Not all publishers do; Baen (a niche publisher) takes 80% and a few take less.  My source is back articles on madgeniusclub.com .)

They justify this by the risk that they take by paying an advance, but that risk means that they have the authority to demand any change they want in the book, or to refuse the book altogether.  The author no longer controls the content.  In exercising control, they make themselves gatekeepers.

The Amazon self-publishing platform takes 30% of the gross.  (I don't have the number for e-books handy.)  What does that 30% pay for?  It pays for print runs (print-on-demand), an expense that recurs with each run of books.  It pays for a retail cut for books that go though distributors to bookstores.  (Yes, if you've bought an ISBN, your book appears in the catalogs of Ingram et al.)  It pays for bookkeeping, it pays for fulfillment (handling and shipping the order).  It does not pay for a professional 'editor' whose word overrides yours.  It does not actually pay for book formatting, since you deliver (not submit!) the MS in a digital format suitable for the process.  If the layout is bad, that's your problem, and you can correct it on subsequent print runs/ebook sales.

Amazon has paid no advance, has invested no money 'on spec'.  Their risks are limited to a few cents of digital storage and the cost of each PoD run--minimal inventory costs.

The same thing applies, with minor differences (percentages and fulfillment processes) for the other self-pub platforms.

It wouldn't surprise me that these facts, thus presented, would by themselves convince a court.
Nor would it surprise me that the First Amendment/gatekeeper argument by itself would convince a court--which means 'convince a judge'.

Now, as the the question of 'renting a press' versus paying for a service.  There are things that cannot be rented without skilled operators, unless you are one yourself.  Need a crane?  You can hire (rent) one, with operator, transporter and driver (if necessary), and a crew of riggers.  OTOH, if you are a lifting/rigging contractor and one of your cranes is down for maintenance, you can rent one from a specialty supplier and supply your own crew and transporter.

If an engineer calls for an A/C unit (for example) to be placed on a roof, it is the engineer's duty to be sure the roof can carry the load.  Unless the roof is obviously rotten, the crane owner (contractor) will not be blamed if the A/C unit falls through the roof a week later.  The contractor does not have the expertise to know, unless there is an obvious deficiency.

What would the equivalent be in Amazon's case?  Maybe a book that is part of a specific criminal conspiracy.  MAYBE.  And maybe not.  If a bank robber takes a bus or a taxi to the scene of his crime, the bus or taxi operator/owner will not be held guilty for transporting him.  Even if he boasts of what he is going to do, the most they could be charged with is a failure to notify the police, which would at the most make them an accessory before the fact.  It's hard to imagine a criminal jury convicting someone on that charge, especially if there was so little time it could have made no difference.  (Civil court is more dicey.)

It isn't that Amazon (or another platform) is careless.  They are uninvolved by policy, and by contractual agreement.

Charles_F_Bell wrote:

"To hold third parties responsible who have no involvement in the speech" -- but they do, and in a far broader way than the assumption they are just photocopiers.

If you bring dough to a baker, and pay him to bake it, and then sell the resulting bread or pastry, and if that bread or pastry turns out to be harmful, is the baker to be held responsible when what he contributed was not harmful?  Will you argue that he is required to test the dough that he bakes?  Ironically, if he tests it voluntarily he may expose himself to liability that he does not face if all he does is heat and cool it to your specifications.

Unless you can show that the publishing platforms change the text or its meaning, or induce the author to do so in a way that depends on the meaning, the platforms have no editorial influence.

In which case, the gatekeeper/heckler's veto consideration would probably weigh heavily on any SCOTUS deliberation.

Given the known biases of the older publishing industry, and the muzzling effect on authors who do not conform to these biases, I should think you would welcome a channel that does not act as a gatekeeper.  Amazon and Smashwords might not be your friend, but they might one day be a vital resource for you.

The question of defamatory speech bears little legal resemblance to the question of responsibility for damage due to a release from a well, nor to the question of keeping and bearing arms for self-defense.  On the latter question, I suggest you read the opinion(s) (including concurrences and dissents) on both the Heller and MacDonald cases.

The harm from a spill is evident and demonstrable.  Harms from defamatory speech are harder to prove, and the shield of our First Amendment is broad.  For example, if I call you an incestuous bastard (using coarser language), the tone of the language is such that few people or none will interpret those words literally, and except in very special circumstances, no US court will entertain a lawsuit based on the literal meaning of the words.  Likewise, prior restraint against speech is justified in very few cases, national security secrets being one.

To hold third parties responsible who have no involvement in the speech except to carry if from the speaker to the market where it may be purchased by willing buyers would be to force those carriers to be gatekeepers, whose interest would always be to shield themselves.  The effect would be prior restraint, a heckler's veto enforced by fear of the court.

To return to the Deepwater Horizon analogy, it would be like saying that anyone who sold required safety gear for the workers could be held liable in the event of a spill.  Soon no safety gear would be sold and no oil could be brought to market.  While some might welcome that, even cognizant of the effects on them and others, most would not.

Judges always have a choice, and some of them ignore law and precedent in favor of personal belief and specious reasoning.  Thats why we have courts of appeal, and why for extreme cases we have the term 'benchslapped'.

The PLCAA was written to block lawsuits which would probably be lost in court, but which would be very expensive to defend, especially if brought en masse.  This decision is more akin to holding a bus company harmless if one of its passengers uses the trip to approach a place he is going to rob.

You don't like SF/Fantasy?  Would you consider =Stranger in a Strange Land= to be junk, or =The Moon is a Harsh Mistress=?  What about Bester's =The Demolished Man=?

The publishing platform services are not publishers because they do not select or reject manuscripts based on content.  They do not tell the authors what to write, or select covers.  They do not even write the cover blurbs.  Their work is limited to the mechanics of production, and to distribution.  They don't even do the page setup; you have to provide that, in a form compatible with their technology.

As to various forms dying in a generation, that may happen in the hands of the shrinking number of traditional publishers, but the success of authors such as those of the Mad Genius Club suggests that a market will remain.

Amazon certainly uses the law to its favor, but they are largely a pass-through operation.  They don't tell publishers what they will buy based on the views of buyers who work for them; they try very hard to measure consumer demand (and to offer things you're likely to buy).  They also stock PoD publications.  I won't call them Good Guys, but they do a closer job of representing the consumer with their algorithms than 'educated' buyers will, because the 'educated' buyers will impose their own preferences.

Take a look at #mswl where agents present their 'wish lists'.  It's loaded with calls for the fad de jour.  How large is the market, really, for transgendered lesbian vampire fiction?

But that was not what was at stake in this case.  This decision was based one issue, and even a child molestor may have a parking ticket dismissed.

However, if you follow discussions and articles as I have,you might conclude  that the consolidation and oligopoly in publishing began with the 'consolidation' of mass-market retailers.  The buyers at B&N now determine what will be published.  That's a recipe for death of the publishing industry.  I can chase down a couple of essays if you like.

In addition, this court decision does not only benefit Amazon and B&N's indie platform,  but Smashwords and any similar platforms.

The court's view was that because Amazon et al do not exercise any editorial control whatsoever, suing the platform would be like suing the owner of a self-service copy machine.

I'd say that any other decision would have destroyed the Indie publishing marketplace, because nobody could do a print run without exercising editorial control.  The freedom-of-speech and freedom of the press implications are larger.  Freedom of the press, it is commonly said, belongs to those who own one.  In practice, that means one who owns or rents one.  But who will offer one for rent if he will be held responsible for the words peinted?

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(1,528 replies, posted in Fantasy/Magic & Sci-Fi)

Try listening to this.

1,812

(1,528 replies, posted in Fantasy/Magic & Sci-Fi)

Ever watch a show like Law & Order?  Characters are shown buying cups of coffee and hot dogs.  The vendors, waitresses, etc., never say anything because they are extras, represented by a different union from the actors, and paid on a different scale.  Once you say a word, you are ineligible and must go to the big boys' union.

I want to keep my extras extras.

From National Law Review, a court has held that Amazon KDP, B&N's Nook Press, and Smashwords do not bear editorial responsibility for the work they publish, and are not liable for defamation for which the book's author may be liable.  (Link found on The Passive Voice.)

1,814

(1,528 replies, posted in Fantasy/Magic & Sci-Fi)

One of the saddest things I ever saw:

I was hospitalized for an infection, and had to share the room with a number of people.   I was moved out of the first room; the other occupant was a boor who vomited all over the toilet seat and couldn't be bothered even to call someone to clean it.  The nurses had pity on me.

In the second room, the first 'roommate' was a man fairly deep in some progressive dementia.  He'd been in another care facility, which discharged him when they decided they couldn't handle him any more.  He ended up in the hospital while his daughters tried to arrange for home nursing and the necessary bed.  They were also trying to arrange for private duty nursing in the hospital, but it was nearly midnight and they couldn't get anyone quickly.

The daughters--late 30's, I would guess--were left to attend to their father's nearly constant, unregulated bodily needs.  After a few hours one of them came around the curtain to apologize for the unending activity.  I told her that none was necessary and that I admired how she and her sister were handling their situation.

That said, my own cultural sense says that a daughter should not have to attend to her father's bodily needs, nor a son to his mother's.  That clearly shaped part of B2-Maurand.

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(1,528 replies, posted in Fantasy/Magic & Sci-Fi)

K, you're free to read my next two chapters, seeing as you're holding the discussion in my forum.

Amy, good to have you back.

1,816

(1,528 replies, posted in Fantasy/Magic & Sci-Fi)

Eh?  Wot wuz I talkkin bout?

1,817

(1,528 replies, posted in Fantasy/Magic & Sci-Fi)

Some small edits on B2Ch9, Maurand.

Not reading, exactly, but about dramatic technique: Video on Hitchock's blocking technique, see through one scene in Vertigo.

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(1,528 replies, posted in Fantasy/Magic & Sci-Fi)

You won't see it for at least 15 hours.  Take care of that ear, and everything else.

1,820

(1,528 replies, posted in Fantasy/Magic & Sci-Fi)

Okay,  I've got a version 0.0 (or maybe 0.(-2)) for Ch9.  I need to type it up, making the corrections I know of, and see what it looks like in print.  It might work better than I'd hoped, or it might be a disaster.

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(1,528 replies, posted in Fantasy/Magic & Sci-Fi)

Trying Ch9 from Pausonallie's PoV.  It may work, but I'll probably need three or four passes to get it into shape and whittle it down.  (Feel up to it, Amy?  AJ?  Anyone else?)

You're on my list, probably tomorrow.  I need to mull your chapter a bit.

By Dave Freer: For those of us writing about pre-industrial world(s).

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(1,528 replies, posted in Fantasy/Magic & Sci-Fi)

I may mark time by working forward on things.  The whole point of this to use Pausonallie to bring Merrran and Jamen into an underground ensemble at the Academy.  I've got a lot of work to make that happen.  (Also, Ch10 is why they can't leave the kids with Pausonallie's family .. though they may end there eventually.)

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(1,528 replies, posted in Fantasy/Magic & Sci-Fi)

Wringing m hands over Ch9.  I need to keep the spotlight on Maurand, even though Merran and the others are the actors.  I'm afraid I may have to resort to some passives.  New writing muscles here.