A Gronking To Remember Lawsuit Gets Strange While Amazon Argues Liability Would Chill Speech And Art

from the gronk-gronk-gronk dept

Thu, Jun 25th 2015 3:59pm — Timothy Geigner

Somewhat surprisingly to me, the tale of the now infamous eBook, "A Gronking To Remember" continues to develop. Yes, this whole thing started when a book purportedly written by a woman named Lacey Noonan, which details one housewife's sexual liberation at the sight of Patriots tight-end (heh) spiking a football, was taken down off of Amazon. The speculation at the time was that the cover of the book was the cause of the takedown, with the NFL being the likely complainer, as the cover features Gronkowski in full uniform.

We learned later that the NFL wasn't actually the reason for the takedown. Instead, it was the photo of that couple embracing had apparently been appropriated from the wider interwebz without permission by the author or whoever designed the cover. That couple, choosing to remain anonymous, was suing not only the author but Amazon and Apple as well for selling the work on their respective platforms. So, what have we learned since?

Well, to start with, Lacey Noonan is a dude. Greg McKenna to be specific. Which, whatever, there's no reason a guy can't write sex-fics about a housewife wanting to nail a football player, but it was a surprise. We've also learned that the New England Patriots did indeed complain to Amazon about the appearance of the team's uniform on the cover, but it turns out Noonan/McKenna removed The Gronk from the cover and republished the book again, with the image of the anonymous couple still in place, we assume. We've also learned that Amazon has an automated system that checks the works authors seek to publish for pure plagiarism or insanely offensive material.

That last bit is becoming an issue in the case, as there are some suggesting that if Amazon can scan the text to omit plagiarism, why can't it run facial recognition software to search for unauthorized images on the covers? And if that question actually sounds reasonable to you, go get your head checked because you are insane. Checking text against a database of fiction is one thing. A very impressive thing, actually. But saddling Amazon, who isn't the publisher in this case, as they offer a self-publishing platform to sell works, with the responsibility to scan faces on bookcovers and then go seek out those people to ensure permission has been granted is crazy-pants. Not only is it operating under the theory that everything is infringing first until it's proven not to be, but it's asking the wrong party to be responsible for the wrong things. Nobody, for instance, is asking brick and mortar bookstores to police bookcovers. Amazon's argument in their brief is exactly on point.

"If Amazon were to be denied summary judgment in the present case, (1) Amazon would be forced to closely examine every aspect of every book an author sought to self-publish through KDP and CreateSpace (and Audiobook Creation Exchange), (2) Amazon‟s costs would likely increase substantially, (3) the prices Amazon charges to its self-publishing customers could rise significantly, (4) some authors and independent publishers might no longer be able to afford to publish their works, and (5) Amazon would likely be inhibited from allowing authors to self-publish potentially controversial works."

In other words, asking Amazon to pretend it's a publisher, when it isn't, would be a great way to kill self-published books. Which means a massive chill on speech and art, all in the name of not holding a self-publishing author responsible for what he or she publishes. Expect this to get tossed quickly under section 230 grounds.

Amazon Gronkj (PDF)Amazon Gronkj (Text)

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Filed Under: book covers, greg mckenna, gronking to remember, intermediary liability, lacey noonan, privacy, publicity rights, rob gronkowski
Companies: amazon

23 Comments

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Anonymous Coward, 25 Jun 2015 @ 4:14pm

I have to say that in this rare case, the couple on the cover have a legitimate right to sue Amazon, Apple and any other retailer who sells that book because the author was required to get permission from the couple if he was going to sue that image to make money. Fair use rights are not absolute and they are not unlimited rights. The author screwed up and he put online retailers in the cross-hairs.
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Anonymous Coward, 25 Jun 2015 @ 4:25pm

Re:
So you are saying that a parties that had no part in the design of the cover be held responsible, why, because they have money and the person who infringed probably doesn't?
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Anonymous Coward, 25 Jun 2015 @ 4:29pm

Response to: Anonymous Coward on Jun 25th, 2015 @ 4:14pm
Ask yourself, if Walmart sold this book, should the be sued?
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Retsibsi (profile), 25 Jun 2015 @ 4:58pm

If you read Amazon's terms and conditions for publishing you'll realise quickly enough that despite the title of the agreement Amazon *isn't* the publisher, it's a distribution system and nothing more, with certain terms and conditions to allow them to retain enough control to prevent self-publishing authors from carrying out acts likely to put the system into disrepute i.e. stupid pricing.
Amazon make it clear that all rights in the book where held by third parties must be cleared by the author first. There are indemnity clauses but no more than would be involved in a distribution contract.
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Anonymous Coward, 25 Jun 2015 @ 5:20pm

So how many Confederate Flags were in this book?
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Jake, 25 Jun 2015 @ 5:33pm

Facial recognition software is probably a bridge too far, but I don't think it would be a hugely unreasonable regulatory burden for Amazon tun a reverse-Google Image Search check on any illustrations in a book they publish -including the cover- to make sure they aren't plagiarised or otherwise misappropriated.

And to be perfectly honest, if Amazon are hosting these ebooks on their servers and taking a percentage of the sale price then it's pretty difficult to argue they aren't a publishing company, even if the line between publishers and retailers gets kind of blurry when non-tangible goods are involved. And even retailers have some burden of due diligence about what they sell and where they source it from.
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Anonymous Coward, 25 Jun 2015 @ 5:38pm

The reason those retailers should be sued is that they are selling merchandise that is known to violate someone's intellectual rights. Amazon and eBay routinely removes merchandise from their sites when it's evident that the content is quite obviously a violation of someone's intellectual rights, such as bootleg anime that is sold on both sites.
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Anonymous Coward, 25 Jun 2015 @ 5:58pm

Response to: Jake on Jun 25th, 2015 @ 5:33pm
The reverse-image search is a good idea in theory, but it doesn't really work in practice. Software does not know if I have permission to use that image, or if I'm the owner of that image using it in another work. All it knows is that the image was found somewhere else. Also, what degree of accuracy do you require. If I take a picture of the Statue of Liberty, and use it on my self-published book, I guarantee a reverse image search will find a billion near-identical images.

The only real way to determine if the use of the images is legitimate is to ask the person submitting it. That, or have the entire process done manually by humans, which would replace a ridiculous burden upon Amazon, and prevent them from providing this service. Hence, I'd have to say the way they're doing things now is the lesser evil than denying everyone the ability to publish their works.
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Anonymous Coward, 25 Jun 2015 @ 7:28pm

Re:
How does that make sense in this case? Amazon was assured by the author that he had the appropriate rights for the photos on the cover. At every point that Amazon was made aware of an issue with rights they pulled the book until it was corrected.
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Karl (profile), 25 Jun 2015 @ 8:35pm

Re:
the author was required to get permission from the couple if he was going to sue that image to make money.

If the use of the image is fair use, then the author of the book does not need to get permission.

Even if they did need to get permission, they would need to get permission from the photographer, not the subjects. Copyright accrues at fixation, and it accrues to whoever initially fixated the work - in the case of photographs, that would be the photographer.

Fair use rights are not absolute and they are not unlimited rights.

Actually, copyright rights are not absolute, and they are not unlimited rights. Fair use is one of many limitations on those rights. For example, if someone uses parts of your work in a review, you can't exercise your rights over that use of your work, because you don't have any rights.

The author screwed up and he put online retailers in the cross-hairs.

Even assuming the use was infringing (and not fair use), which I doubt, that doesn't mean that the online retailers should face liability. They did not create the infringing work, nor directly assist in the infringement (assuming it even happened).

If they follow the Section 512 procedure, then they are automatically exempt from all infringement. If they did not, then they can only be liable for secondary infringement- which, under traditional copyright case law, they would not be.

Even if the author of the book "screwed up" (which I don't think they did), there is no way he "put online retailers in the cross-hairs." At least, not in the legal sense.
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Anonymous Coward, 26 Jun 2015 @ 2:13am

I'll give you a Gronking to remember!
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Dan (profile), 26 Jun 2015 @ 4:00am

Re: Re:
How do you get to the conclusion that the author's use of the image was fair use? He used nearly the entire copyrighted work (except for the background), and he used it for purely commercial purposes (to help his book sell). The image wasn't in any way newsworthy, he wasn't commenting on it, and he wasn't making a parody of it. Fair use is an area of copyright law that's always kind of fuzzy, but I really don't see this fitting into it.

Of course, the fair use analysis is relevant only if the plaintiffs were suing over copyright, which they aren't. The suit is based on rights of publicity and invasion of privacy, both of which seem like at least reasonable claims, at least against the author.
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Reality bites, 26 Jun 2015 @ 7:23am

No right to sue, only remove.
People aren't buying the book because of a stupid cover, they are buying it for the text. Remove the picture put a picture of the moon or something the parasites can't copyright and republish.

Lawyer parasites steal enough from those that create, time to stomp them down a little.

Problem is to handle this situation correctly would take an IQ slightly higher than a turd.... which automatically removes all higher courts and 99.99999% of all other legal system employee's.
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bureau13 (profile), 26 Jun 2015 @ 7:56am

Re:
I can't imagine a reverse image search would turn up the original, in this case, as the image you're searching for is the cover, not the clipped-out picture of the couple.
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bureau13 (profile), 26 Jun 2015 @ 8:00am

Re:
It's actually extremely easy to argue that Amazon isn't the publisher due to it being on their servers and them taking a cut. Unless you're also arguing that B&N, or WalMart, or any tiny little mom&pop bookstore (if those still exist) is also a publisher. After all, they get a cut of the sale price and the book is "hosted" on their shelves...
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John Fenderson (profile), 26 Jun 2015 @ 8:14am

Not surprising to me
there's no reason a guy can't write sex-fics about a housewife wanting to nail a football player, but it was a surprise.

I thought the author was a guy from the outset.
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Jake, 26 Jun 2015 @ 9:41am

Re: Re:
Wal-Mart and B&N are explicitly reselling stuff bought wholesale from someone else, though. And even then they'd have some explaining to do if they bought a load of books off a vanity publisher that turned out to be plagiarised, even if it'd take some pretty egregious wilful ignorance for them to be criminally liable.
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Anonymous Coward, 26 Jun 2015 @ 10:27am

Summary judgment
Amazon's argument in their brief is exactly on point.

"If Amazon were to be denied summary judgment in the present case, (1) Amazon would be forced to closely examine every aspect of every book...
This is not true. They need to win eventually, not necessarily on summary judgment.
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Anonymous Coward, 26 Jun 2015 @ 10:59am

"So, my records indicate that you feed the homeless at a local soup kitchen three nights a week?"

"Sometimes. I'm not sure what the relevance of this is to copyright law - "

"Then why haven't you solved world hunger, you selfish fuckwit?"
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Anonymous Coward, 26 Jun 2015 @ 11:18am

Re: Re: Re:
And how is what Amazon doing any different?
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michael, 26 Jun 2015 @ 1:59pm

Why *facial* recognition?
"why can't it run facial recognition software to search for unauthorized images on the covers"

This sentence is bizarre. Why would you run *facial* recognition to compare images? Why not just image recognition software?
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Anonymous Coward, 28 Jun 2015 @ 3:17pm

Re:
the couple on the cover have a legitimate right to sue Amazon, Apple and any other retailer who sells that book because the author was required to get permission from the couple if he was going to sue that image to make money.

So your'e saying "a victim should be able to sue corporation XYZ because a person who is not related to the corporation (except that they used their services) committed a crime"?

So if a murderer comes and murder my family, I should be allowed to sue the gas station that he used to buy the gas he used to drive over to my house?
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Anonymous Coward, 29 Jun 2015 @ 3:52pm

Understand the case before commenting
There is no "fair use" in privacy rights. This is not about copyright.
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