Rogers Looks For New Ways To Annoy Customers, Hijacks Failed DNS Lookups

Judge Recognizes The Obvious: Printer Shouldn't Be Liable For A Book It Prints

from the putting-liability-where-it-belongs dept

Wed, Jul 23rd 2008 11:27pm — Mike Masnick

Just last week we wrote about the Republican National Committee suing CafePress for selling t-shirt designs from users that include RNC trademarks (the "GOP" phrase and the RNC's elephant). Even though the RNC has backed down, CafePress may be happy to hear that a ruling in a different case seems to support the idea that CafePress shouldn't be liable. Eric Goldman points us to quite a series of lawsuits up in Maine between two families. Apparently, the daughters of the families were once friends in high school but had something of... er... a falling out. Take your average "former best friends" dispute and multiply it by about 100. This one involved both girls getting expelled and one eventually being convicted of a hate crime against the other.

The family of the convicted girl believe they've been wronged, and began a publicity campaign in their own favor. Part of this campaign involved a self-published book telling their side of the story. They tried to find a publisher for it, but publishers (wisely, from the sound of it) wanted no part of it. So, instead, they used a print-on-demand publisher. The other family, of course, sued everyone involved for defamation, including the print-on-demand company, BookSurge.

Without even using section 230 of the CDA, BookSurge has been let off the hook in the case, as the judge noted that it made no sense to include them in the case:

Because BookSurge does not undertake to edit, review or fact-check any of its publications, it has no means or way of knowing whether defamatory material is contained within the works that it publishes. BookSurge maintained no editorial control over the works published. The responsibilities of BookSurge, which are known to the authors of the works, indicate that it is not an active participant in the creation of any defamation.

This fits with what we've always said about section 230 of the CDA. Even if it didn't exist, it makes legal sense simply not to allow lawsuits against a mere middleman for the actions of an end user. It's nice to see the court recognize that here.

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Filed Under: liability, print on demand

17 Comments

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Cabal (profile), 24 Jul 2008 @ 5:37am

Print/ISP... is there a difference?
It seems to me this argument should be valid when discussing an ISP (or web content hoster like YouTube) and potential infringment of intellectual property.
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sand jent, 24 Jul 2008 @ 5:44am

CDA??
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Steve R. (profile), 24 Jul 2008 @ 5:48am

The Growing Search for Liability
This post points to the continued abusive practice of supposed victims (whether a family, the MPPA, RIAA, or the IFPI) to establish that third parties are 1: liable and 2: required to take proactive measures to protect them. We have evolved into a society where nothing is ever your fault, we are all victims entitled to compensation.
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Anonymous Coward, 24 Jul 2008 @ 6:09am

If the plaintiff had succeeded against the publisher the next lawsuit of this type would have sued the companies that made the ink and paper. It's good that this nonsense stopped at the publisher. It is also a good argument about why we should have some workable form of loser pays.
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Ed, 24 Jul 2008 @ 6:33am

Re:The Growing Search for Liability
Steve R. Wrote:

"We have evolved into a society where nothing is ever your fault, we are all victims entitled to compensation."

The irony of that fact is that while "We" are not are fault for any of our own actions, "We" are at fault for the actions of everyone around us. At this rate, not only a pedestrian, hit by a vehicle, will be sued by the driver, but all witnesses as well. "It was the obligation of any witness to prevent the accident, at all costs".
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Steve R. (profile), 24 Jul 2008 @ 6:40am

Communications Decency Act
Communications Decency Act
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tm, 24 Jul 2008 @ 6:59am

Did the Gun Shoot Itself?
From a legal standpoint, it seems this is very similar to a HUGE issue when anti-gun people were bringing suits against gun manufacturers for their guns killing people.

"Printer Shouldn't Be Liable For A Book It Prints"
"Gun Shouldn't Be Liable For A Person It Shoots"

Just a thought....
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kevjohn, 24 Jul 2008 @ 8:18am

Re: Did the Gun Shoot Itself?
I'll try to keep that in mind the next time someone shoots a book at me.
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Anonymous Coward, 24 Jul 2008 @ 10:42am

Willful Blindness
Because BookSurge does not undertake to edit, review or fact-check any of its publications, it has no means or way of knowing whether defamatory material is contained within the works that it publishes.
That sounds like a classic case of willful blindness to me which would indeed make the printer liable. I wonder if this decision will be appealed.
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DanC, 24 Jul 2008 @ 9:40pm

Re: Willful Blindness
That sounds like a classic case of willful blindness to me which would indeed make the printer liable.

In order to argue for willful blindness, it would have to be shown that there was a high probability of illegal conduct, that BookSurge was aware of that probability, and that BookSurge intentionally avoided discovery because of it.

Simply because BookSurge doesn't edit, review, or fact-check doesn't make them liable.
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Anonymous Coward, 24 Jul 2008 @ 11:50pm

Re: Re: Willful Blindness
In order to argue for willful blindness, it would have to be shown that there was a high probability of illegal conduct, that BookSurge was aware of that probability, and that BookSurge intentionally avoided discovery because of it.
Do you have any basis for that claim? I ask because there seem to be many court cases that don't agree with you. For, instance is there a "high probability" that any package somebody asks you to transport contains illegal drugs? I don't think so, yet courts have ruled that not knowing what was in such packages constitutes willful blindness and makes the carriers just as guilty as if they had known. Are most corporate accountants engaged in criminal account practices? Again, I don't think so yet a court found willful blindness on the part of Enron's top executives for not being aware of it.
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DanC, 25 Jul 2008 @ 7:59am

Re: Re: Re: Willful Blindness
Do you have any basis for that claim?

Yep. I didn't include a link in my original comment because at the time I could only find references to the actual source in various blogs. I've since found it.

The concept of willful blindness, or deliberate ignorance, is based on the Model Penal Code, section 2.02 (7), which states that:

"Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist."

I was also able to locate jury instructions from the Eighth Circuit Court of Appeals for United States v. Whitehill:

"A willful blindness instruction is appropriate when the defendant asserts a lack of guilty knowledge, but the evidence supports an inference of deliberate ignorance." United States v. Gruenberg, 989 F.2d 971, 974 (8th Cir. 1993) (citations omitted). Ignorance is deliberate if the defendants were presented with facts putting them on notice criminal activity was particularly likely and yet intentionally failed to investigate."
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Anonymous Coward, 25 Jul 2008 @ 12:26pm

Re: Re: Re: Re: Willful Blindness
Yep. I didn't include a link in my original comment because at the time I could only find references to the actual source in various blogs. I've since found it.
Thanks a lot for taking the time to provide those references, Dan. Quite interesting. Now, do you have any idea how and why those requirements are seemingly ignored in so many cases?
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DanC, 25 Jul 2008 @ 1:53pm

Re: Re: Re: Re: Re: Willful Blindness
Now, do you have any idea how and why those requirements are seemingly ignored in so many cases?

Well, for the Enron case against Jeffrey K. Skilling and Kenneth L. Lay, the jury was allowed to determine whether the requirements for willful blindness were met. Lay in particular was found to have met the requirements for willful blindness because he had been informed of problems with Enron's accounting and did nothing.

Also, in keeping with the Enron scandal, some of the convictions that were based on willful blindness were later overturned on appeal when it was decided that the jury was improperly instructed on willful blindness (Arthur Andersen LLP v. United States).
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Anonymous Coward, 25 Jul 2008 @ 3:31pm

Re: Re: Re: Re: Re: Re: Willful Blindness
Lay in particular was found to have met the requirements for willful blindness because he had been informed of problems with Enron's accounting and did nothing.

If he had been informed of the problems then I don't see how he could have claimed to have had no knowledge of them. That seems more like perjury to me rather than blindness, willful or otherwise.

As to other cases, I read just last week of a truck driver who is being prosecuted for transporting illegal drugs. It seems that he was hauling a load of disposable diapers when a drug dog detected that one of the sealed packages on one of the pallets contained illegal drugs. He of course is claiming no knowledge of the drugs but the prosecutor is citing willful blindness. Can you please explain how this case meets the requirements you described above?
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DanC, 25 Jul 2008 @ 5:01pm

Re: Re: Re: Re: Re: Re: Re: Willful Blindness
If he had been informed of the problems then I don't see how he could have claimed to have had no knowledge of them.

My understanding is that he was told that there were problems, but not what those problems actually where. I believe the excuse he gave was that he was a "hands off" executive, and thought the problems were simply rumours.

Can you please explain how this case meets the requirements you described above?

Without knowing the specifics of the case, I can't really say how the case does or does not meet willful blindness requirements. Typically, however, willful blindness is a jury instruction, and evidence is provided by the prosecutor to show that the defendant had reason to suspect illegal activity. Ultimately, the jury decides whether the requirements have been met based on the instructions given to them by the judge and the evidence provided.

Sorry I can't go into any more detail, but the only case I managed to find in a search that was similar to the one you describe occured in Mexico.
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Anonymous Coward, 25 Jul 2008 @ 7:07pm

Re: Re: Re: Re: Re: Re: Re: Re: Willful Blindness
Thanks again Dan. I appreciate your thoughtful and enlightening responses.
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