March 22, 2016

Court rules that self-publishing is not publishing in A Gronking To Remember suit


A gronking this couple wants to forget.

Oh, god it’s terrible.

In a development that will unfortunately force us to violate an informal rule here at MobyLives to not use the term “gronking” ever again, a US District Court has ruled in favor of the defense in the case of Roe v. et al. 

This, as you may recall, was the case concerning self-published erotic novel A Gronking To Remember. (Dammit.) Which, yes, is an erotic novel about a woman who falls in love with New England Patriot Rob Gronkowski.

The author, Greg McKenna (writing as “Lacey Noonan“) used a photo for the book’s cover that featured Jane Roe and John Roe celebrating their engagement. However, as neither of the Roes had given their consent for the photo to be used, they promptly sued McKenna for violating their right to publicity once the book became somewhat of a national news curiosity. They also sued Amazon (specifically naming Kindle Direct Publishing and Createspace), Barnes & Noble, Apple, and Smashwords for selling the book.

Eric Goldman of Forbes reports on the ruling:

The court dismisses the self-publication vendors from the lawsuit because, legally, they functioned more like book “distributors” than “publishers”:

You might be surprised that the distributor/publisher distinction has been discussed rarely in Internet litigation. Congress largely mooted that legal distinction in 1996 when it enacted 47 USC 230 (Section 230), the law that says websites aren’t liable for third party content–irrespective of whether the service would have been classified as a “publisher” or “distributor” under traditional legal principles. The court expressly sidestepped the application of Section 230 in this case, perhaps because Section 230 excludes intellectual property claims and many courts consider publicity rights to be an IP.

The court concludes that the honor system applies in this case because Amazon and other sellers require self-published authors to state legal ownership of the work when it’s submitted for distribution, and these sellers hold no liability if the author lies to them. This is because Amazon’s only quality-control mechanisms are a scan of the book for plagiarized or “offensive” (like, say, this) content. However, in reaching this conclusion, the court drills down to the very definition of “publishing,” and exacts a few burns against self-publishers in the process.

So, why don’t we dig into the ruling. Amazon et al.’s motion against summary judgement claimed immunity from liability under the Communications Decency Act, which exempts passive conduits of third-party content from liability. However, as Goldman points out, the court doesn’t address this justification, because it distinguishes Amazon and the other corporate defendants as “distributors.” In the court’s view:

Defendants do not conduct the editing and design steps, as their service is commonly known as self-publishing, but might also be thought of as self-editing.  Self-publishing is arguably not publishing, as that word is known in the book industry, because to publish is to place a book in final form for distribution to booksellers for sale.

The court defines a “publisher” as one who is “active” (i.e., one who edits, designs both the interior and exterior of, and markets/publicizes a book) vs. a “passive” platform like Amazon, whose responsibilities are limited to formatting the text for consumers, outsourcing a cursory editorial once-over to an algorithm, and providing a retail outlet. In the court’s view, KDP and CreateSpace function as a print shop, rather than a publisher.

There’s precedent to support this, including a particularly bonkers case from 2007 involving a feud between two high school girls that spiraled completely out of hand. The court also accepts Amazon’s argument that applying a higher level of editorial control over KDP and CreateSpace books would be prohibitively expensive for Amazon, and therefore make self-publishing less affordable. However, it applies this reasoning by imagining Amazon as a bookstore with no legal obligation to vet every single piece of merchandise it carries, and is protected by the First Amendment.

Because it costs nothing to publish, books that previously were considered not worth publishing are now published. It bears note, however, that disseminating speech was not historically free. As the cost diminished from transcription, to printing presses, to photocopiers to the internet, however, the public is deluged, creating a cost on their end. One can imagine a social benefit in requiring the modicum of review required to assure that no rights are violated in production.

[…]For now, this Court will apply the old standards to the new technology, treating the Corporate Defendants’ 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, Corporate Defendants will not be liable as publishers for the tort allegedly committed using their technology.

While the conclusion the court draws is valid—that a distributor should only be held liable if it can be proved that they did not act when informed of a problem—and despite my love for the sick burns of case law, this ruling feels curiously underdone. Not that every ruling involving Amazon has to be a referendum on the State of Literary Culture, but a Xerox machine? Really?

Amazon’s lowered the bar to publishing entry to historical depths. This is great for writers, especially genre writers, who either can’t or won’t publish traditionally. But a Xerox machine has no stake in your book’s success, while KDP and other self-publishing platforms have the same stake in your book’s sales as a regular publisher; larger, in fact, because none of their cut goes to paying editors, marketers, or designers.

Maybe this ruling can serve as a reminder that traditional publishers usually hire middlemen, aka Amazon’s bete noire, to help avoid cases like these by looking at a cover and asking, “Hey, where’d you get this photo?” But let it also remind us that Amazon’s editorial standards, whether they apply to their self-publishing platform or to their reviews, will continue being somebody else’s problem.




Liam O’Brien is the Senior Sales & Marketing Manager at Melville House, and a former bookseller.