Thursday, February 06, 2014

A hypothetical downstream liability trap for an author, involving online access to books

Should large amounts of printed (or Nook-Kindle) book text be available on line through regular websites? 
In effect, they often are, because of Google Book Search, and sneak preview features like Amazon’s “Look Inside”.  Furthermore, authors, particularly with personal non-fiction and with a lot of abstract or obscure content that they suspect won’t sell a lot of traditional “copies”, may choose to make their content available online for exposure, and hope to earn some revenue through “honor systems”.  In practice, this technique can often work.  It will be permissible if the author has a non-exclusive contract with the publisher (or totally self-publishes and owns his imprint).
There’s a little legal mousetrap, however, which may never have ever been triggered.  Web publishing services and ISPs have Section 230 protection (so far) but book publishers do not.  Now, Amazon would have it for a “look inside” passage.  But the original publisher, even if a different entity than the author, would not.  So a mischievous plaintiff, perhaps claiming some kind of victimization, could find the passage online and sue the publisher as well as the author, who will have signed a contractual clause indemnifying the publisher against legal defense costs.  (That clause exists for online services too but it really practically is never used, because of Section 230 and DMCA safe harbor.)  Also, a copyright infringement claim could be made against the publisher, and with a “printed“ book there is no safe harbor.  In a very few cases, book stocks have been removed or destroyed after such incidents.  However, I haven’t heard of an indemnification suit against an author by a publisher in this circumstance actually happening in real life.
A "victim troll" could look through websites or book searches and file such a suit without ever having "purchased" a copy of the media.  But of course, one can say that the party might have found the book in a public library (yes, "It's free...")  But the volume of books actually in most libraries (outside of the Library of Congress) is much smaller than what is on the web, and relatively few of those in public libraries are self-published.  Be wary of what mouse you offer a free cookie to.  It may want more than a glass of milk. (See Feb. 23, 2013).   

If it ever happens, it would be a good one for “The Legal Guys” on Saturdays on CNN.

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