Friday, April 1, 2016

We live in a world that has rapidly redefined and blurred the roles of the “creator” of content, as compared to the roles of the “publisher” and “distributor” of such content. A recent case touches on some of the important legal issues associated with such change. Among other things, the case illustrates the importance of service providers maintaining clear and appropriate terms and conditions that relate directly to the role they serve in the expression of content over online media.

The case involves a number of online self-publishing services. For those authors who have struggled to find a publisher or who would otherwise prefer to keep control of their IP rights in their books, there are many such businesses. Such services allow authors to upload works and pay to transform those manuscripts into paperbacks via a print on demand model or make them available in ebook form for sale on the sites of major e-booksellers. Unlike a traditional publisher, however, self-publishing services do not fact check or edit materials (though, users may take advantage of unaffiliated paid services that do just that) and do not use a vetting process that might catch potentially defamatory or infringing content prior to publishing. Indeed, beyond automated reviews for things like pornography or plagiarism, these platforms do not review submissions for content and rely on user agreements that contain certain contractual representations about the propriety of the uploaded content.

But what happens when a self-published book offered for sale contains content that may violate a third-party’s right of publicity or privacy rights? Should the self-publishing platforms be treated like traditional “publishers” or more like distributors or booksellers? This past month, an Ohio district court ruled that several online self-publishing services were not liable for right of publicity or privacy claims for distributing an erotic (and so-called “less than tasteful”) book whose cover contained an unauthorized copy of the plaintiffs’ engagement photo because such services are not publishers. (See Roe v. Amazon.com, 2016 WL 1028265 (S.D. Ohio Mar. 15, 2016)).

Background of the Dispute

The dispute began with the unauthorized publication of the plaintiffs’ engagement photograph on the cover of an erotic book authored by Greg McKenna (under a pseudonym). The book was uploaded using several online self-publishing platforms and offered for sale on the major ebook sites (as well as being offered in paperback form via print-on-demand). The alleged privacy violations were aggravated when the book was displayed in nationwide media, including in jokes on some late night TV talk shows. Less than a month after publication, the author received a letter from plaintiffs’ counsel and contacted the ebook vendors to remove the offending book cover and replace it with a stock image.

The plaintiffs subsequently brought suit against the author McKenna and the self-publishing vendors used by the author (i.e., Amazon’s Kindle Digital Publishing, Barnes & Noble Nook Press and Smashwords), asserting right of publicity and invasion of privacy claims. Liability against McKenna was sought based upon the allegation that he authored the work in question, and claims against the self-publishing vendors on the theory that they “published” the work. The court easily ruled that the plaintiffs could proceed against the author because they sufficiently alleged that their likenesses were expropriated for commercial benefit and that they suffered “humiliation and ridicule.”

The self-publishing vendors sought summary judgment asserting that they were not publishers of the book but merely allowed the author to use their systems to distribute it, and that were protected from any liability for third-party content by CDA Section 230. In opposing dismissal, the plaintiffs argued that the vendors worked in concert with the author to provide a platform for publishing books the same way a traditional publishing house does.

Examination of the Service Providers’ Terms and Conditions

Siding with the defendants, the court dismissed the claims against the self-publishing vendors, finding that their services are not “publishing,” as that word is known in the book industry. The court pointed to the terms of service that the author agreed to when registering for defendants’ services. For example, the terms of the Kindle agreement contained representations that the uploader owned all rights to the material and that no rights were being violated. In the Nook agreement, the author represented and warranted to Barnes & Noble that he held “the necessary rights, including all intellectual property rights, in and to the [book] and related content” and that the book could be “sold, marketed, displayed, distributed and promoted [by Barnes & Noble] without violating or infringing the rights of any other person or entity, including, without limitation, infringing any copyright, patent, trademark or right of privacy….” Moreover, the Smashwords agreement stressed that: “Smashwords does not… undertake[] any editorial review of the books that authors and publishers publish using its service.”

Dismissal of Claims against Self-Publishing Services

Ultimately, the court concluded:

“For now, this Court will apply the old standards to the new technology, treating the [self-publishing vendors’] process as if it were next logical step after the photocopier. Just as Xerox would not be considered a publisher and held responsible for an invasion of privacy tort carried out with a photocopier, [the Defendants] will not be liable as publishers for the tort allegedly committed using their technology.”

Because the court based its ruling on the publisher-distributor issue, it declined to take up the issue of whether the defendants were shielded from liability by the CDA Section 230.

Implications from the Ruling

The decision is notable because it is not often that a court has had the opportunity to interpret the potential liabilities of print-on-demand and online self-publishing platforms in the defamation or privacy context. The outcome is certainly welcome for online vendors that assist in the distribution and commercial “publication” of user-generated content, at least as another backstop to the protections already afforded by CDA Section 230. The ruling might also serve as a reminder for providers to reexamine user agreements and terms of service to ensure that certain author representations about the non-infringing nature of uploaded content are clearly worded and that electronic contracting best practices are followed to ensure enforceability. Interestingly, the court’s language also touched on the free speech implications of an adverse ruling, suggesting that if liability for failure to inspect content were imposed on print-on-demand publishers or self-publishing platforms, they might become censors and their services would become more expensive, precluding the publication of low-budget works or controversial opinions from independent authors.