Print-on-Demand Service BookSurge Deemed Not To Be a "Publisher"

Back in July, a federal court in Maine ruled that BookSurge, a print-on-demand service owned by, was not liable for defamatory statements contained in a book it "published" on behalf of one of its clients.  Sandler v. Calcagni, 2008 WL 2761892 (D. Me. July 16, 2008).  At the time, I thought the decision was interesting, but I never got around to blogging about.  More accurately, after reading Eric Goldman's post discussing the case, I didn't think I had anything more to offer.  Well, I still don't have much to offer about the case, but Jeffrey Neuburger, a lawyer at Proskauer Rose, just posted an excellent analysis of the salient issues on MediaShift.

A bit of background on the case first.  In 2003, two high-school cheerleaders in Maine, Shana Sandler and Mia Calcagni, had a falling-out.  According to filings in the case, both girls complained to school officials that the other was engaging in harassment.  The situation continued to devolve, and Ms. Calcagni was convicted of criminal mischief for allegedly spray painting a swastika near Ms. Sandler's house. Ms. Calcagni's parents (why does it always seem to be the parents who drive the bus off the cliff in these cases?) then hired a freelance writer to tell their side of the story.  After they were unable to find a traditional publisher, they self-published the book through BookSurge.  Not surprisingly, a defamation lawsuit ensued.

Although the court's decision to dismiss BookSurge didn't turn on the application of section 230 of the Communications Decency Act (BookSurge raised the issue, but the court ignored it), the decision did address the important distinction between publisher and distributor liability for defamation.  Under standard common-law principles, a person who "publishes" a defamatory statement by another bears the same liability for the statement as if he or she had initially created it. Thus, a book publisher or a newspaper publisher can be held liable for anything that appears within its pages. The theory behind this publisher liability is that a publisher has the knowledge, opportunity, and ability to exercise editorial control over the content of its publications.

Distributor liability is much more limited. Newsstands, bookstores, and libraries are generally not held liable for the content of the material that they distribute. The concern is that it would be impossible for distributors to read every publication before they sell or distribute it, and that as a result, distributors would engage in excessive self-censorship. In addition, it would be very hard for distributors to know whether something is actionable defamation; after all, speech must be false to be defamatory.

So the question facing the court in Sandler v. Calcagni was whether BookSurge bore the characteristics of a "publisher" or "distributor."  Fortunately for BookSurge, the court concluded that it was akin to an online copy machine, noting that it had “negligible involvement” with the authors of the book and never fact-checked or reviewed the manuscript.   

In his post on MediaShift, Neuburger does an excellent job identifying the consequences of the court's holding:

Print-on-demand services are an example of how the Internet enables writers to circumvent the gatekeepers of traditional communications channels. By dramatically lowering the cost and greatly increasing the ease of communication, writers who would previously have been blocked from the market can find an easy way to get their works out to the public. Authors no longer have to send copies of their great American novel to hundreds of publishers, praying for an editor to view it favorably. In fact, in this case, the parents first sought to have their book published by traditional publishing houses, which uniformly rejected the manuscript.

The question prior to Sandler v. Calcagni was whether the law would saddle these kinds of services with potential liability that would force them to vet their authors’ works in the same manner as traditional publishers. If print-on-demand services were found not to be liable, they would have less incentive to weed out books that could give rise to legal action, almost certainly allowing more content to make its way into the stream of public discourse — for good or ill, as this case arguably demonstrates.

You can read the rest of his analysis here.


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