Actually, though, I'm referring to Miss Snark's blog. Miss Snark is a pseudonymous literary agent who prefers gin, George Clooney, and poodles, although not necessarily in that order. She remarked upon the Brandewyne case out of Kansas, mostly quoting a news article. This has since set off a bit of amusement in the comments section, and I'm going to expand upon my comments a bit.
Part of the PW story really made me smile. In an evil, self-satisfied, "you've-just-made-an-admission-against-interest" sort of way.
Bryan Smith, president and CEO of AuthorHouse, said he was disappointed that the jury ignored the First Amendment protections afforded AuthorHouse, and instead "were permitted to consider Kansas common law theories of outrage and invasion of privacy." Smith noted that while the AuthorHouse system leaves authors in control of the content of their books, the company works to identify objectionable material. "In this case," he said, "we acted promptly and conscientiously once we discovered the potential problems, and do not believe our actions justified the verdicts."
How many ways is this intellectually dishonest? I don't have that many fingers, but here's a handful.
- The "First Amendment protections afforded [a publisher]" are matters primarily of law, not of fact, and are not in the jury's province. In those few instances in which it is, those protections are considered in the relevant jury instructions, specifically including the Kansas Pattern Jury Instructions.
- Libel is a common-law theory that is intimately intertwined with both "outrage" and "invasion of privacy." The Supreme Court has repeatedly rejected attempts to prohibit those torts on First Amendment grounds.
- The jury found that AuthorHouse was told about the potential problems at the time that the book was submitted. If AuthorHouse published the book anyway, that's not "prompt and conscientious".
- What kind of imbecile would not see the potential problems upon actually reading the manuscript? Certainly not an imbecile with any real experience in publishing.
- All publishers leave authors in control of the content of their books.
What Mr Smith really wants is not First Amendment protection it's tort reform in favor of publishers.
Things get even better when one looks at the substance of Mr Smith's whinging. Even a first-year law student would catch this one. Many torts that have multiple tortfeasors also allocate the proportion of blame. I'm not talking about "comparative fault" here, but allocation; for example, an allocation of 40% to the city for leaving brush obscuring sightlines and 60% to a driver who was driving within the posted speed limit, but nonetheless too fast for the poor visibility, after that driver hit a pedestrian. In that instance, on a $100,000 judgment the victim can collect $40,000, and only $40,000, from the city, and the remaining $60,000 only from the driver. Defamation and related torts, however, are different; they are ordinarily joint and several. That is, the victim can choose to sue only one of several tortfeasors and get the entire damages from that party, or as in this case can sue several tortfeasors and collect all of the damages from the deepest pocket. Copyright infringement follows the same principles.
Of course, publishers are aware of this, and impose warranties and indemnities on writers. Those are my pet peeves (and of course I have permission to reproduce this graphic). The Brandewyne case demonstrates something simple, though: That the victim who is not a signatory to such a contract is not herself bound by those warranties and indemnities. Instead, it's left for the author and the publisher to fight over it later… after the victim has gotten her recovery.
Then, too, AuthorHouse is a vanity press. It is not a self-publishing service. Title to the copies as they come off the press belongs to the publisher, and the guaranteed money flow is away from the author on the date the first copy rolls off the press. Thus, my sympathy for the "publisher" is even more limited than usual.