TheNextBigWriter Premium → Court Holds That Publishing Platforms are Not Publishers
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.)
Actually makes sense.
Actually makes sense.
...if you think government giving an economic-competitive edge to one entity over another in the same business makes sense. Amazon, etc. can now act like and make money like publishers but not have the same liability and responsibilities. Even if as a consumer, that is my preference -- just like sales taxes are often not collected through online stores versus always from brick-and-mortar stores -- when corporations with banks of lawyers and lobbyists say: all we want is what is best for the consumer, they are lying, and when the judiciary claims it is just being 'fair,' acting according to the rule of law, and not 'arbitrary' (as it may need to be from time to time) it is no less oligarchic than any planation owner of old.
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?
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?
That Amazon et al. don't exercise editorial control within their publishing empires is like saying BP et al. don't exercise control over where crude oil may go into the ocean.
Yes, indeed, blameless lying, stealing, and malicious action might not "destroy" a sector of the economy which holds itself above all that expensive self-policing action.
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.
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?
In addition, this court decision does not only benefit Amazon and B&N's indie platform, but Smashwords and any similar platforms.
Comparison of today's self-publishing/vanity press to "one step beyond photocopying" is a facile argument. The author does not pay a "printer" to print his manuscript in book format and then toss it up on the corner for sale (old vanity press). They fully distribute, store, and provide limited marketing and full selling services. How is that not being publishers even if, as noted, they offer the author more liberal retention rights? Because an author may have two publishers in BN and Amazon does not absolve either of traditional publishing responsibilities on content.
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?
That's a different topic. I predict the 'novel' and substantive short story will be dead in the next generation.
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.
The publishing platform services are not publishers because they do not select or reject manuscripts based on content.
They are publishers who do not select or reject manuscripts based on content. It is fair for government to entertain negligent torts against entities which profit by their negligence. "You signed a contract that allows us to not give a damn about harm by you to others we have facilitated." is not a valid contract. Remember that Congress had to specify in law that gun manufacturers are except from civil suit as for any harmful purpose of gun ownership. ]The Protection of Lawful Commerce in Arms Act], so if Jeff Bezos's K street lawyers want such exemption, they can work on Congress, for there is not a chance he will succeed on up the court system, but for now the little guy with his little grievance against some jerk improperly using his property suffers.
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.
Like defending rap/hip-hop as being a kind of music.
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=?
njc wrote: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?
That Amazon et al. don't exercise editorial control within their publishing empires is like saying BP et al. don't exercise control over where crude oil may go into the ocean.
Yes, indeed, blameless lying, stealing, and malicious action might not "destroy" a sector of the economy which holds itself above all that expensive self-policing action.
In my head, the judge had no choice but to rule what he did. Amazon is not guaranteeing anything about their Print on Demand other than they require the author to format it within specs. They make the writer promise that all materials belong to them. They are not responsible if the writer lies...as they are not a publisher, not really.
They are providing a 'mechanical service' of printing and offering a limited 'digital' shelf space. They are not really publishers (as much as we like to call them that). They are book printers that include some limited digital shelf space and the option to market yourself. In return, they don't edit, review or turn down your book idea. If they were a publisher in the traditional sense, they might say a book about a singing bologna roll would be a bad book option. Yes, I know someone wrote this book.
The Author is the publisher in this sense. The author edits, formats and markets. Therefore, the AUTHOR is responsible for any illegal copyright issues. Amazon only offers a printing service in the hopes of getting you to pay for add-ons and extra printing.
AMAZON
Example: If I buy a truck from Ford for cash then let the insurance on it expire then load it up with fuel and drive it into the side of a building, Ford is not responsible for the wall damage or the lack of insurance. They sold me a truck that happens to be a FORD with options and that's all. I'm responsible if I ram it into walls.
Traditional Publishing
Example: If I Ford pays me to be a Ford representative to drive around my Ford truck but they get input on the insurance, the color of the truck and put limits on my speed when I drive, then they take some responsibility in my usage of the truck. They are 'monitoring' and editing my use. Ford might also tell me don't purposefully drive into walls and they believe we have a formal agreement between us that says I'm won't do this. If I then run into a wall and Ford didn't check that I reupped the insurance...then Ford is partially responsible because we have a partnership agreement where Ford 'vouched' for my truck and my insurance.
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'.
Charles_F_Bell wrote:njc wrote: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?
That Amazon et al. don't exercise editorial control within their publishing empires is like saying BP et al. don't exercise control over where crude oil may go into the ocean.
Yes, indeed, blameless lying, stealing, and malicious action might not "destroy" a sector of the economy which holds itself above all that expensive self-policing action.In my head, the judge had no choice but to rule what he did. Amazon is not guaranteeing anything about their Print on Demand other than they require the author to format it within specs. They make the writer promise that all materials belong to them. They are not responsible if the writer lies...as they are not a publisher, not really.
Sure, if indeed BP had been given the power through the judiciary to excuse themselves, or those contractors working in their behalf, from bad behavior... they're not oil-spill cleaners, after all. They drill it up and distribute just like Amazon "prints" it up and distributes it. Negligence is negligence, and no one can create and sign contracts to abolish any and all responsibility.
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.
Tobacco suits were losing until state legislatures passed laws to allow them to win. Ditto for gun-manufacturing. The magnificent defense of the U.S. Constitution, and the right of the individual to keep and bear arms, was accomplished this one and only time by President George W. Bush and the GOP Congress versus an activist judiciary and -- with the defense of this country to create a period of 7+ years in which no civilian American was ever killed by a jihadist after 9/11 -- was a great accomplishment.
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.
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 implication of your response re: Congress ban on tortious negligence against gun manufacturers is false, and President Bush and Congress saved the gun industry from death by lawsuit (irrespective of the later Heller and MacDonald decisions), as indeed eventually the alternative publishing industry would have to seek such a legislative ban on its tortious negligence liability eventually in spite of some early success in court, but I suggest that the individual right to keep and bear arms is constitutional and the right to defame and plagiarise is not.
"The harm from a spill is evident and demonstrable" is not relevant - it is only to include the deeper pockets of a segment of an industry that is refusing to take responsibility for checking defamation, plagiarism. etc. because it obviously would be expensive for them to do.
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"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.
"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.
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?
Yes. It can be a hard case to make, but it can be done. Just as matter of right and wrong, why would/should a baker just take your word on its contents? Moreover, a more accurate analogy is -- like Amazon/KDP facilitates the purchase (in every way) and essentially puts its name on it, the baker holds and sells your cake in his store with a sign: Created by John Smith but baked right here by expert hands. They must therefore share responsibility.
njc wrote: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?
Yes. It can be a hard case to make, but it can be done. Just as matter of right and wrong, why would/should a baker just take your word on its contents? Moreover, a more accurate analogy is -- like Amazon/KDP facilitates the purchase (in every way) and essentially puts its name on it, the baker holds and sells your cake in his store with a sign: Created by John Smith but baked right here by expert hands. They must therefore share responsibility.
Its more like you rented the kitchen from the professional baker. You made cookies. Your cookies gave people belly aches because you put cabbage in them. The baker is not responsible that a cookie eater got a belly ache for eating cabbage cookies. He rented the kitchen. HE's not tasting the cookies or even giving a recipe. He just has minimum use requirements for his kitchen.
In the same way Amazon is giving a writer a platform with minimum usage instructions. You can make cabbage cookies or chocolate chip...but Amazon has nothing do with the quality of the product...only the format.
Charles_F_Bell wrote:njc wrote: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?
Yes. It can be a hard case to make, but it can be done. Just as matter of right and wrong, why would/should a baker just take your word on its contents? Moreover, a more accurate analogy is -- like Amazon/KDP facilitates the purchase (in every way) and essentially puts its name on it, the baker holds and sells your cake in his store with a sign: Created by John Smith but baked right here by expert hands. They must therefore share responsibility.
Its more like you rented the kitchen from the professional baker. You made cookies. Your cookies gave people belly aches because you put cabbage in them. The baker is not responsible that a cookie eater got a belly ache for eating cabbage cookies. He rented the kitchen. HE's not tasting the cookies or even giving a recipe. He just has minimum use requirements for his kitchen.
In the same way Amazon is giving a writer a platform with minimum usage instructions. You can make cabbage cookies or chocolate chip...but Amazon has nothing do with the quality of the product...only the format.
No. Nothing is being 'rented' from Amazon. The author and his publisher, Amazon, share profit from the book published, distributed, and sold by Amazon. That Amazon is careless in not exercising any editorial control is its problem here - no intention of harm to third-party entities but intentionally negligent with known decreased costs and increased profit like GM intentionally and with full knowledge for over a decade installed malfunctioning from poor design, not 'defective,' ignition switches in many of its models.
It isn't that Amazon (or another platform) is careless. They are uninvolved by policy, and by contractual agreement.
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.)
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