TechLaw

A federal district court in Maine held last week that Amazon.com's print-on-demand subsidiary, Booksurge LLC, was not liable for defamatory material contained in a book it printed for a customer. In essence, the court decided that BookSurge is similar to contract printer which, according to several courts, has no duty to inspect the materials it prints for defamatory content.

One of the defendants, BookSurge, is an online self-publishing service provider. Authors upload a PDF-formatted copy of their work to the BookSurge Web site. For a fee, BookSurge then publishes the work in ink-on-paper and delivers the printed materials back to the author. The plaintiff is a high school girl who alleged she was defamed in a BookSurge-printed title written by the family of another high school girl. The details of the book aren't important, though it appears from the court's opinion to involve a setting-the-record-straight effort about high school cheerleaders, boys, and ethnic slurs.

The key passage in the opinion: "BookSurge, as an independent company that transforms PDF documents into books with no editorial control and no communal process with the author, can only be found liable if it knew or had reason to know of the alleged defamation."

The court rejected the plaintiff's argument that printing-plus-marketing the author's work is sufficient to treat BookSurge as the "publisher" of the disputed work.

BookSurge contended that the First Amendment bars holding BookSurge liable for defamatory material in the books it prints on any standard more demanding than a "knew or should have known" basis. This argument relied in part on Cubby v. Compuserve Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), in which the court held that holding electronic news vendor CompuServe to a duty more rigorous than the one imposed on traditional news distributors would "impose an undue burden on the free flow of information." BookSurge's riff on Compuserve went like this:

Adopting Ms. Sandler's theory that BookSurge has a duty to read and fact-check the hundreds of thousands of books that it prints each year would restrict severely the dissemination of constitutionally protected books printed by BookSurge and other P.O.D. companies. At a minimum, BookSurge and other P.O.D. companies would be required to increase substantially their rates in order to provide the review and fact checking proposed by Ms. Sandler. Far more likely, companies like BookSurge would cease to exist, because self-publishing authors would be unable to afford the cost entailed in the review and fact checking necessary to protect P.O.D. companies from Ms. Sandler's newfound theory of liability.

The court's opinion, however, didn't pick up this argument. No First Amendment discussion, no mention of Compuserve, and no mention of the Communications Decency Act's Section 230 (which, I guess, is not applicable to this dispute because the alleged defamation was ink-on-paper). Nevertheless, the court reached the same destination via the non-constitutional, non-CDA route. BookSurge, a mere printer with no other involvement in the creation of the book, is not liable unless it knew or should have known of the defamatory character of the work, the court concluded.

Web 2.0 Tidbit. The court, in tossing out the plaintiff's tort claim for publication of private facts, observed that the publication of the fact that the plaintiff had decided to seek psychological counseling did not involve a private fact, because the plaintiff had already disclosed this information on her MySpace.com page. Publication of this information on MySpace also undermined another aspect of the publication of private facts tort, which is that the private fact published must be highly offensive to a reasonable person. "The Plaintiff's choice to reveal to the public that she sought psychological help shows that she did not believe the disclosure of this fact to be highly offensive," the court wrote.

The case is Sandler v. Calcagni, No. 07-cv-29 (D. Maine July 16, 2008).

What showing must a plaintiff in an online defamation case make to unmask the identity of an anonymous poster? Two district courts have taken up that question in recent months and have adopted different standards: one applying summary judgment, the other using failure to state a claim.

Unlike plaintiffs in copyright disputes, who can rely upon the DMCA subpoena procedure, plaintiffs alleging defamation must contend with unsettled common law standards if they want to issue a subpoena to force a service provider to reveal the identity of an anonymous poster.

This past July, the U.S. District Court for the District of Arizona held that the First Amendment interests of anonymous posters require that the plaintiff present sufficient facts for its claim to be able to withstand a theoretical motion for summary judgment. Best Western Int'l Inc. v. Doe, 2006 U.S. Dist LEXIS 56014, No. 06-1537 (D. Ariz. July 25, 2006). It drew its inspiration from the Delaware Supreme Court, which elaborated that "the defamation plaintiff must introduce evidence creating a genuine issue of material fact for all elements of the claim that are within the plaintiff's control." Doe No. 1 v. Cahill, 884 A.2d 451, 465 (Del. 2005).

But more recently, the district court in Massachusetts questioned the usefulness of that approach. McMann v. Doe, No. 06-11825 (D. Mass. Oct. 31, 2006). The Cahill court's decision to not require a defamation plaintiff to show actual malice (because it involves facts not known to the plaintiff) creates a problem, the court observed:

Under this approach, a public figure could unmask anonymous critics without meeting an essential step in the prima facie case, a showing of actual malice. At the same time, requiring a preliminary showing of fault would mean no subpoenas would ever issue, and character assassins would be free to trumpet harmful lies from all corners of the internet.

Judge Joseph Tauro concluded that while there are "problems with the mechanics of a summary judgment test," it is ems.bna.comtheless "reasonable to apply some sort of a screen to the plainitff's claim before authorizing the subpoena."

The "screen" Tauro applied was the plaintiff's failure to state a claim. The alleged defamation consisted of statements that the plaintiff "turned lives upside down" and the suggestion "to be afraid, very afraid" of him. Tauro found that these statements were "bland, vague, and subjective" and amounted to nothing more than mere opinion; neither of them support a claim for defamation.

The court declined to authorize the subpoena.