Amazon Defeats Publicity Rights Lawsuit Over Erotica Cover

3915673063_9921b59393_bIn April of last year Amazon, Smashwords, and B&N were caught up in a publicity rights lawsuit in Ohio. The lawsuit was filed by a couple whose engagement photo was used without permission in the cover of a self-published erotica ebook (and POD book, via Createspace), A Gronking to Remember.

As of this week, the Smashwords, Amazon, and B&N part of the lawsuit has come to naught. Forbes reports that Judge Thomas Rose has issued a summary judgement in favor of Amazon et al.

You can find the ruling itself over at justia.com, but the short and simple explanation is that the judge found for the defendants because he likened them to the modern equivalent of a Xerox machine rather than publishers:

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.

That's a novel conclusion, and not the one I was expecting.

It was obvious from the beginning that this case would be tossed because the defendants were and are protected by Section 230 of the Communications Decency Act.

Do you know the part of the CDA that says a platform is not liable for the actions of its users?

That is section 230, and it formed the basis for the defense's arguments, but Judge Rose ruled that it did not apply in this case because Amazon et al were distributors and retailers, and not the publisher of the ebook. He concluded that the self-published author had used the self-publishing platforms like one might use a Xerox machine, and found that the platforms were no more liable than Xerox would have been.

That more or less parallels the reasoning behind Section 230 and reaches the same destination, only via a different path.

While that might sound like splitting legal hairs, this could prove important given that Section 230 explicitly does not cover intellectual property. Judge Rose has given platforms like Youtube, Kindle, etc a new legal defense should section 230 and the DMCA safe harbor exemption be rejected by another court.

image by Mike Cattell

 

About Nate Hoffelder (11594 Articles)
Nate Hoffelder is the founder and editor of The Digital Reader:"I've been into reading ebooks since forever, but I only got my first ereader in July 2007. Everything quickly spiraled out of control from there. Before I started this blog in January 2010 I covered ebooks, ebook readers, and digital publishing for about 2 years as a part of MobileRead Forums. It's a great community, and being a member is a joy. But I thought I could make something out of how I covered the news for MobileRead, so I started this blog."

15 Comments on Amazon Defeats Publicity Rights Lawsuit Over Erotica Cover

  1. Personally I think that kind of reasoning is faulty.
    I mean, you couldn’t exactly call Xerox up and say “Mr. X/Somebody is using your machine with serial number XXXXXXX to make illegal copies of my book, please stop this from happening,” (though it could be possible with advances in technology, eventually). But it is completely legit to contact Amazon or whoever and say “X work that you are selling via your (self-publishing) platform is using my intellectual property illegaly and here’s the proof, please stop selling it.”

    Now to be clear, I am only finding fault with the Xerox argument, not the rest as I don’t know too many details on the case and don’t care that much either even if I feel sorry for the couple’s unwanted publicity.

    • That is not what the case is about.

      The case was about making Amazon/Nook/etc responsible/complicit for the act of publishing the book (not about asking them to stop dustributing it) and trying to hit their “deep pockets”. It was a money grab pure and simple.
      (It’s not even clear they can stop the use of the image under any existing law.)

      • Like I said, my criticism was of the logic/analogy. Not of the case or its being tossed out.

        • And likeI said below, the analogy is in fact good. Amazon provides a service just as Xerox does. They are not liable for what people do with it any more than Sony was liable for what people did with Betamax recorders or Diamond for what people put on their MP3 players. There is plenty of precedent here.

          Their responsability ends when they receive a credible takedown notice in line with DMCA. Trying to shake them down on other terms for things they didn’t do doesn’t fly. It didn’t and it won’t. It’s a *good* analogy. Really.

          • I think the photocopier analogy is better than bringing up Betamax.

            The thing about copiers is that offices often rent copiers from companies, including sometimes the manufacturer. That makes them a near-perfect parallel for KDP.

          • I think that Nate’s point is the crux of the matter and you’re essentially saying what I said without realizing. I was thinking of Xerox as a goods seller, which would mean they are NEVER responsible for what is done with their product after it is sold and would not be expected to take action in repossessing the sold copier that is being used for nefarious purposes or stopping it somehow. This is like Betamax in your example (unless they knew beforehand that it would be used for criminal activity). But Amazon here is a service provider (like Xerox renting copiers vs selling them as Nate pointed out). This means, as you pointed out that if they receive a legitimate takedown notice or something of the sort they DO have responsibility (and if they didn’t comply for any reason then they would be liable).

          • Nate, it goes beyond the leasing of copiers (a service, just like the selfpub platforms) and to the more general principle that manufacturers and sources of tools are bot liable for the use or abuse of their products (or services). That is why I said the judged went straight to first principle. It cut to the heart of the matter and reduced the chances of appeal by going past DMCA safe harbor.
            The publishing services are as much tools for creating and distributing content as copiers and Betamax and the same principle applies: absent proven intent to violate the law there is no liability.
            And since this was not a copyright case it made sense to go beyond copyright-specific principles: Tool makers/distributors are not liable for end user actions.

            Copiers are definitely relevant.
            So it Betamax.
            For that matter, so are handguns. But that is a lot more political. 😉

          • Indeed. One trait common to both betamax and online self-pub services is that in neither case can the company which made the tool also control how it is used.

          • And it would be a BAD.THING for everybody if they did.
            Not something to be advocated.

  2. He also drove a stake through the heart of the ongoing misrepresentation of KDP titles as “Amazon-published titles” by many ADSers, especially by those upset that Amazon doesn’t ghetto-ize indie titles. Amazon is just a neutral distribution service and by drawing on the photocopy parallel the judge took it to first principles and made it clear for all but the willfully ignorant.
    Not a bad approach.

    • Who said KDP titles are published by Amazon? That’s nuts.

      • A bunch of the AU guys and articles in “industry” press keep referring to KDP indie titles as Amazon’s, usually when complaining the Amazon promotes them “too much”. I saw no less than three instances in articles featured at TPV just in the last month or so. It is usually in the low-key, in-passing style favored by political operatives. Most people miss the phrasing but it keeps coming up, like when promoting the zombie meme that only big corporations can afford to publish.

  3. “… a platform is not liable for the actions of its users?”

    So you won’t be held responsible for encouraging the PDF rioting against the ePub format?

  4. This book (and its apparent sequel!) is now appearing on the right side of your page under “Shop Related Products.” The law of unintended consequences strikes again!

  5. I have a bit of a problem with the ruling in that when you get a 1099 from Smashwords, B&N, and Amazon, your revenue is slotted under ROYALTIES. A PUBLISHER pays royalties.

    IMO, this makes et al the publisher by fiat (i.e., a person who uses the platform[s] has no choice but to accept this or not publish at all).

    Furthermore, Smashwords DOES parcel out its own ISBNs and the listings are said to be “published by” if you choose to use one. The TOS says, I believe, that you are agreeing that Smashwords is your publisher.

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