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Q: "How to" author liability ( Answered 5 out of 5 stars,   4 Comments )
Question  
Subject: "How to" author liability
Category: Relationships and Society > Law
Asked by: morris-ga
List Price: $11.00
Posted: 11 Jun 2002 11:28 PDT
Expires: 18 Jun 2002 11:28 PDT
Question ID: 24376
I've written a book about starting a small computer business on a
shoestring that an agent has been unable to place for me. I've done
some self-publishing and have also written for the big boys, so my
ambition is to try POD (Print on Demand). This was actually my
intention when I wrote the book, but I began worrying about liability,
so I took a shot at the publisher route. The book contains advice
about hiring and firing, spending and saving, buying and selling,
cutting and running, etc...

I'm want to see three recent examples where authors of how-to or self
help books with disclaimers were successfully sued for damages. By
"recent", I mean the last 5 years, by "books" I mean individually
bound paper thingies with ISBN numbers, by "disclaimers" I mean a
paragraph saying roughly "I did my best but this isn't a substitute
for professional advice, you're on your own," which is usually found
on the copyright page.

Please don't waste your time looking for "extra" info about insurance,
incorporation (doesn't protect author in any case), the three examples
will do it. Please request a clarification if you aren't sure what I'm
looking for. I don't know whether or not this info is available, I
don't trust myself to do the search because I'm biased. I did speak
recently with a leading literary lawyer about the liability clauses
many publishers get authors to sign, and while she was against them,
she couldn't give a single example of an author who was hurt by
signing one, so this type of lawsuit may not be common. Again, I'm
strictly interested in liability for the author's advice (sometimes
included in errors and omissions) not liability for plagiarism, libel,
etc...
Answer  
Subject: Re: "How to" author liability
Answered By: weisstho-ga on 11 Jun 2002 14:07 PDT
Rated:5 out of 5 stars
 
Dear Colleague, 

Thank you for asking a truly fascinating question. Can an author be
held liable for his negligent statements?

As with so many areas of the law, it is a question without a bright
line rule. I was able to identify some cases which are, to greater and
lesser degrees, on point.

But as a general proposition, I think the comment in the Winter
(Mushroom) case below is apropos: as a matter of public policy, should
we as a society, place a stultifying pressure upon the literary
community by permitting such duties to exist?  Probably not.

I have, as many of us have, noted the debate on this topic though: Is
there a duty by an author to NOT detail the construction of a nuclear
device? Or, in a ridiculous extreme, explaining in a Dick and Jane
book for third graders how to manufacture a deadly weapon out of
childhood blocks?

There must be a line somewhere in the law, and where it is has not
been specifically drawn, though the following cases, representing the
very few that exist, might help you draw the line:


1.  Injured swimmer and his wife brought action against publisher of
travel guide, state, and county.   The Supreme Court of Hawaii held
that:  (1) publisher of book which did not author it had no duty to
warn of dangerous condition at beach which it describes.  Birmingham
v. Fodor’s Travel Publications, 73 Haw. 359, 833 P.2d 70,
Prod.Liab.Rep. (CCH) P 13,322, 20 Media L. Rep. 1521 (Docket Nos.
15263 and 15384), (Haw. 1992).

2.  Elementary school student who was injured when struck in eye by
floor hockey stick during gym class brought strict product liability,
breach of warranty, and negligence action against
producer/disseminator of floor hockey game, i.e., concept and
instructions.   The Massachusetts Appeals Court held that even if
"product" sold was game, defendant could not be liable in absence of
evidence that it manufactured stick that caused injury. Garcia v.
Kusan, Inc., Appeals Court of Massachusetts (Plymouth), No. 93-P-1414
(Mass. App. 1995).

3.  A publisher of magazines was advised by Secret Service agents that
particular photographic reproductions of currency appearing in its
magazines violated the provisions of 18 U.S.C.S.  474 and 504.
Despite the warnings, the publisher continued to use the
reproductions. The Service attempted to seize all plates and materials
used in connection with the production of one of the magazine covers.
The publisher sought a declaratory judgment that 18 U.S.C.S.  474
and 504 were unconstitutional on their face. The district court
concluded that because the purpose and publication requirements were
unconstitutional, the entire regulatory scheme outlined in  504 was
invalid. The court held that  504's purpose requirement was
unconstitutional and could not be sustained as a valid time, place,
and manner regulation because it discriminated on the basis of content
in violation of the First Amendment.  Regan v. Time, 468 U.S. 641
(Supreme Court of the United States, 1984)

4.  Plaintiffs were mushroom enthusiasts that became seriously ill
when they picked and ate certain mushrooms. Plaintiffs believed the
mushrooms were safe for consumption in reliance upon a book published
by author. Plaintiffs initiated suit seeking to recover damages from
author, alleging, among other things, that author was liable under
theories of products liability and negligence. The case was dismissed
prior to trial, in favor of the author. The United States Court of
Appeals agreed with the trial court, holding that the expressions
contained in the book and relied upon by plaintiffs were not tangible,
physical items to which the theory of products liability applied.
Additionally, the court ruled that plaintiffs could assert no
actionable negligence theory because defendant had no duty to
independently investigate and verify the accuracy of the text it
published. Winter v. G. P. Putnam's Sons, 938 F.2d 1033; 1991 U.S.
App. LEXIS 14654; 19 Media L. Rep. 1053; CCH Prod. Liab. Rep. P12,847;
91 Daily Journal DAR 8421 (9th Circuit 1991).



The Hawaiian Supreme Court in the Fodor Case relied upon the Winter
(Mushroom) case in reaching its decision, holding that the special
attributes of ideas and expression militated against treating them as
"products": "The purposes served by products liability law ... are
focused on the tangible world and do not take into consideration the
unique characteristics of ideas and expression....Although there is
always some appeal to the involuntary spreading of costs of injuries
in any area, the costs in any comprehensive cost/benefit analysis
would be quite different were strict liability concepts applied to
words and ideas. We place a high priority on the unfettered exchange
of ideas. We accept the risk that words and ideas have wings we cannot
clip and which carry them we know not where. The threat of liability
without fault (financial responsibility for our words and ideas in the
absence of fault or a special undertaking or responsibility) could
seriously inhibit those who wish to share thoughts and theories.”  As
a New York court commented: "[w]ould any author wish to be exposed ...
for writing on a topic which might result in physical injury? e.g.
[sic] How to cut trees; How to keep bees?" [Citation omitted]. One
might add: "Would anyone undertake to guide by ideas expressed in
words either a discrete group, a nation, or humanity in general?" See
Winter at  1034-35.

Thanks for the opportunity to bring some small amount of clarity to
this complex issue.

As always, requests for clarification are welcomed. 

Best,

Tom

Clarification of Answer by weisstho-ga on 11 Jun 2002 14:28 PDT
Just a couple late entries:

Here is one example that presumably did not go the author’s way,
though the publisher escaped:
An explosion occurred while the readers were mixing a mordant
according to the instructions in a book published by the publisher.
The readers brought an action based on products liability against the
publisher and the author of the book. The publisher moved to dismiss. 
The court granted the publisher's motion because the publisher merely
printed and bound the book, the contents of which were written by a
third-party author, so the publishers did not have a duty to warn of
the content of the books it published. No mention of the author’s
fate. Lewin v. McCreight, 655 F. Supp. 282 (United States District
Court for the Eastern District of Michigan, 1987).

Here is the text of the Hawaiian case against Fodors:
http://www.hsba.org/members/sc/15263.HTM

And try this search string – I think you’ll like it:
://www.google.com/search?q=%22938+F.2d+1033%22&hl=en&lr=lang_en&start=0&sa=N


Tom

Clarification of Answer by weisstho-ga on 11 Jun 2002 14:49 PDT
Just one other thought: Don't take ANY of this as gospel. These cases
stand for as much, or as little, as the specific facts, in that
particular courtroom, and that one day, support. Tweek it a bit - move
it to another judge or jurisdiction, and the outcome COULD be
different. (The classic lawyers disclaimer :-)   Tom

Request for Answer Clarification by morris-ga on 12 Jun 2002 09:33 PDT
Weisstho-ga,

I appreciate your effort, but I'm afraid you didn't answer the
question. I thought I made very clear that I was only interested in A)
books, B) the last 5 years, and C) cases where the author was forced
to pay damages.

Example 1 was not a suit against the author and was more than 5 years
old. Example 2 was not a book, or within five years. Example 3 was not
a book or within 5 years. Example 4 was not a successful suit or
within 5 years. The clarification does not say what happened to the
author, nor was it within 5 years.

I also stated in the question:
"Please don't waste your time looking for "extra" info ... the three
examples
will do it. Please request a clarification if you aren't sure what I'm
looking for. I don't know whether or not this info is available.."

Three examples meeting the criteria are what I'm looking for.

Clarification of Answer by weisstho-ga on 12 Jun 2002 11:20 PDT
Morris-ga:

I’m sorry, no; there are NO reported cases on either Lexis or Westlaw
where an author of a book was successfully sued for damages within the
past five years. There are at least 6 cases from across the country
within the past 5 years where an author successfully avoided liability
based upon various theories of Constitutional, tort, or product
liability law – all of which are highly instructive in fashioning
defenses and firewalls. If you are interested in that tack, please
consider posting a new question.

Tom

Request for Answer Clarification by morris-ga on 12 Jun 2002 11:32 PDT
Rather then my reposting the question, how about submitting 3 of those
instances of authors beating lawsuits in the last five years and we'll
call it even.

Clarification of Answer by weisstho-ga on 30 Jun 2002 14:50 PDT
Winter v. G. P. Putnam's Sons, 938 F.2d 1033 (9th Circuit 1991) is the
key decision that underlies most, if not all, of the cases on this
topic. The summary of this case is set forth above. The two main
holdings in this case were: (1) product liability, a tort claim that
seems to appear in almost all claims against authors, was not
recognized in the Winter case, as the court held that the author's
ideas were not "tangible, physical items" necessary to be a "product";
and (2) the publisher had no "duty," in the context of the facts of
that particular case, to independently investigate and verify the
accuracy of the text. Of course the publisher's lack of liability is
key since they typically represent the deep pocket so attractive to
plaintiffs.

Thanks for asking for the clarification.
morris-ga rated this answer:5 out of 5 stars
While I was unhappy with the initial answer, the three cases posted in
the clarification actually give me confidence in the justice system,
which may be more useful in the long run.

Comments  
Subject: Re: "How to" author liability
From: missy-ga on 11 Jun 2002 12:28 PDT
 
Hi Morris!

I think you got me, here.

I've found quite a few mentions of authors being sued, but no
specifics and no indication of whether or not the suits were
successful (resulted in damages being awarded).

Here is what I did find, though:

"Do you know if any of the LPC members run a disclaimer in
their magazine about not being liable for the information
published in the articles? There is an instance of an author
advising adding salt to a particular species’ diet. One of the
readers followed the advice and lost many in his herd immediately.
The author was sued for $287,000."

Actiongram
[ http://livestockpublications.org/oct.pdf ]

There is also considerable discussion of several suits filed against
publisher and authors, in which the judge threw out the suit against
the publishers, but allowed the suit against the authors to go
forward.  No mention of specific authors:

Liability for Defective Content - See the paragraph entitled Author
Liability
[ http://www.kaner.com/badcont.htm ]

There is also a paragraph briefly mentioning a "Jones Decision", which
was a suit against a publisher and an author.  The paragraph reads:

"--Court granted summary judgment to the publisher defendant
-Author defendants’ possible liability was not adjudicated as part
of this decision
--Court held that a publisher has no duty vis- - vis the content
of whatever it publishes
--With regard to author liability, the Court noted that this is an
area that “is not firmly defined” and will depend on:
-The nature of the publication
-The intended audience
-Causation in fact
-The foreseeability of damage"

Search on "author liability" within this document:

2001 SES Conference
[ http://www.ses-standards.org/library/01proceedings/MarascoAA.pdf ]

That's all I've got for now, I'm afraid, but you raise such an
interesting question that I'm going to see what else I can find.  I've
always been under the impression that a solid disclaimer was
sufficient, and never thought any further on the subject.

--missy
Subject: Searching for legal cases
From: libronaut-ga on 11 Jun 2002 12:34 PDT
 
Hi Morris,

Unfortunately, searching for lawsuits can be extremely time consuming,
not least because (I believe) there's no comprehensive database of
lawsuits. You might consider talking to someone at the library of a
law school - they can probably give you some pointers, and might have
some resources (electronic or otherwise) you could use.

A pathfinder on U.S. Law is available at the Internet Public Library:
[http://www.ipl.org/ref/QUE/PF/lawpath.html] 
You might find that it has some tips on how to do this research.
Subject: Re: "How to" author liability
From: jinkster-ga on 14 Jun 2002 13:26 PDT
 
Copying and pasting the above information from Lexis appears to be
copyright infringement.

From the Lexis website:
"No part of the materials including graphics or logos, available in
this Web site may be copied, photocopied, reproduced, translated or
reduced to any electronic medium or machine-readable form, in whole or
in part, without prior written consent of LexisNexis.  Distribution
for commercial purposes is prohibited."

http://www.lexisnexis.com/terms/copyright.shtml
Subject: Re: "How to" author liability
From: expertlaw-ga on 15 Jul 2002 14:13 PDT
 
A case that probably should have been mentioned in the context of this
discussion would be the suit against Paladin Press for its manual on
how to be a hit man. The plaintiff's theory was that Paladin went
beyond publishing the material, and actually abetted or incited
criminal activity. While it is not clear that the plaintiff would have
won on Paladin's "First Amendment" appeal, Paladin decided not to take
the risk and ultimately settled, withdrawing the book from the market.

This technically does not fall within the confines of the question, as
the plaintiff made the strategic decision to sue only the publisher
and not the author. However, the same theory would apply against the
author.

Outside of that extreme, as the answer and comments indicate, U.S.
authors have very strong First Amendment protections, even when they
give bad or mistaken advice.

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