From The New York Times:
Penguin Books India, a unit of Penguin Random House, has agreed to withdraw and destroy all copies of a 2009 book on Hinduism by an American scholar to settle a lawsuit by a Hindu nationalist group that had objected to the book’s portrayal of the religion.
. . . .
The lawsuit had been filed by Dina Nath Batra, the head of Shiksha Bacho Andolan, a Hindu educational organization in New Delhi, in 2011. Prior to the lawsuit, he filed a notice to Ms. Doniger and Penguin Group USA, then the parent of Penguin Books India, in 2010, saying that Ms. Doniger’s book “has hurt the religious feelings of millions of Hindus” and therefore breached section 295A of the Indian Penal Code.
The book, which was released in the United States and India in 2009, offended Hindus because of its “tendency to over-eroticize” the religion, said Ashok Malik, a journalist who reviewed “The Hindus” when it first came out. “I thought it was overdone.”
. . . .
Mr. Batra said in an interview Tuesday that Shiksha Bachao Andolan would continue to battle books that hurt religious sentiment, and Madan Mohan Sharma, a member of Bharatiya Shiksha, a sister organization, said the group felt vindicated by Penguin Books India’s decision.
Link to the rest at The New York Times
PG has been thinking about writing a post that discusses the warranties included in typical publishing contracts as well as the terms of service for self-publishing services.
He guesses that the time has come.
Here is a portion of the Kindle Direct Publishing Terms and Conditions:
5.8 Representations, Warranties and Indemnities. You represent and warrant that: . . . (c) neither the exercise of the rights authorized under this Agreement nor any materials embodied in the content nor its sale or distribution as authorized in this Agreement will . . . violate any laws or regulations of any jurisdiction;
In the event that any of the Representations, Warranties and Indemnities are breached:
you will indemnify, defend and hold Amazon, its officers, directors, employees, affiliates, subcontractors and assigns harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) that arises from any breach of your representations, warranties or obligations set forth in this Agreement.
The Penguin publishing contracts PG has reviewed contain similar language.
The Indian lawsuit alleged a violation of Section 295A of the Indian Penal Code arising from the content the author included in her book that Penguin published. This allegation, if proven, certainly sounds like the material the author provided violates one of the laws of India.
With a book self-published via KDP, the author can designate which Amazon stores sell her work. If the author has a concern about violating Indian law, she would be well-advised to not approve sales in India. PG (like 99.9% of American attorneys) knows nothing about Indian law and isn’t certain if a violation of the law in question would occur if somehow a copy of the book in question was brought into India, say on a Kindle.
A traditionally-published author is in even worse shape because, typically, under her contract, she licenses exclusive rights to Penguin or another publisher for exercise anywhere in the world. Once the author signs such a contract, she has no control whatsoever over where her book is sold. It’s the publisher’s decision.
However, under the warranties, the author is still promising that the book won’t violate the laws of any nation where the publisher decides to distribute the book.
Another point about the language – “materials embodied in the content nor its sale or distribution as authorized in this Agreement will” not violate any law, etc.
This is forward-looking language. Assume that Ms. Doniger signed her publishing contract in 2010 but this Indian lawsuit was begun in 2013. She’s responsible. She pays although the book was not published when she signed the contract.
While that may seem reasonable (as much as any such warranty is reasonable), the prospective application of this language also troubles PG.
With KDP, you can withdraw your books from sale at any time. Under a traditional publishing contract, you’re giving the publisher rights to your book for the full term of the copyright – the rest of the author’s life plus 70 years in the US. The warranties the author gives the publisher also continue for that same long time period.
The plain language of the contract seems to imply that, for as long as the contract is in force, the author’s book won’t violate any laws. So, asks PG, what happens if the publishing contract is signed in 2014, India passes an anti-blasphemy law in 2015 and sues the publisher that same year?
The warranty says the author promises her book will not violate any laws so long as the contract is in force. Under the contract language, the warranty is not limited to the laws in existence when the contract is signed.
Remember, the author’s warranty is not just limited to the laws of India. It extends to the laws or regulations of all the nations in the world. Additionally, the warranty applies to the laws or regulations of “any jurisdiction” in the world. In the United States, each of the 50 states is its own separate jurisdiction with its own laws and regulations. And within each state, counties, cities and towns are also their own jurisdictions. Similar national, provincial and local jurisdictions exist everywhere else as well.
PG knows a lot of very smart and talented lawyers. He does not know any lawyer or even any law firm that is knowledgeable concerning the laws and regulations of every country and every jurisdiction within every country in the world.
Someone who operates a business can approach a patent attorney and ask for what is usually described as a “freedom to operate” opinion. This opinion says the business’s operations don’t violate any patents owned by other people.
For example, a software company can provide the patent attorney (who will need to be an expert in software and software patents) with detailed information concerning the company’s software products and their operations. Usually, the attorney will ask for the names of every potential competitor and look at what they’re doing. Many, many patent searches will also happen.
If all goes well, after at least several weeks and maybe several months and payment of a large legal fee, the patent attorney will issue an opinion (couched with disclaimers) that, in his/her opinion, the software company is free to operate in the United States by licensing its patents without infringing on patents owned by others.
One of the disclaimers would be that the opinion is limited only to patents published as of the date of the opinion, not patents issued in the future.
PG knows of no comparable legal opinion that an author could obtain to assure the author that his/her book would not violate any law or regulation of any nation or jurisdiction in the world. He knows of no attorney or law firm that would be competent to render such an opinion. Maybe some attorney knows the sharia laws in the tribal areas of Pakistan well enough to render an opinion about them, but that same attorney won’t know the laws of Tonga or Zambia.
And no attorney would give an opinion that the book will not violate laws passed in 2015.
Yet, Amazon and Penguin and other large and small publishers ask the author to warrant that a book won’t violate any law or regulation anywhere in the world, something no attorney would venture to warrant.
PG thinks these kinds of warranties are unconscionable. As an adjective, the term, unconscionable, is reasonably easy to understand. As a legal concept, it’s a tough climb.
If you’re going into court to contend that a contract or contractual provision is unconscionable and should not be enforced, that tends to be the legal equivalent of a Hail Mary pass.
What’s the solution?
1. Publishers should get real about warranties. Factual warranties are fine – the author warrants that he/she is the sole author of the book. Legal warranties or Legal/Factual warranties are ridiculous – the book won’t violate any law.
2. While not the preferred solution, if legal warranties must be used, the author’s financial obligation for violating any but factual warranties should be capped, not unlimited. If a book violates the laws of India, the author is obligated to return the advance, not pay for legal expenses of US and Indian counsel and the cost of retrieving 20,000 books from 2,000 bookstores in India.
3. Warranties are an ideal subject for liability insurance coverage.
The kinds of bad things that are typically mentioned in warranties are those that are extremely unlikely to occur but, if they do occur, have the potential to be very expensive. Most houses don’t burn down. If one does, it’s expensive to replace. So, each owner of a house pays a reasonable insurance premium and 10,000 of those premiums will pay for the one house out of 10,000 that burns down.
To the best of PG’s knowledge, all large publishers have liability insurance or are self-insured for losses from the costs that would fall under typical warranty clause. So is Amazon. Most, if not all medium-sized publishers have similar coverage. Small publishers should have such coverage.
Publishing contracts should name the author as an additional insured under the publisher’s liability policy or self-insurance program and should require the publisher to maintain the policy or program in force with specified policy limits high enough to cover reasonably foreseeable losses. As a condition of signing a publishing contract for new books, the author should require that the publisher add him/her as an additional insured with respect to all of the author’s books the publisher has previously published as well.
As written, typical warranties essentially try to make the author an insurance company for the publisher, paying for any bad thing that may happen during the course of the publication and sale of the book.
Some days, PG has to look hard to find an ounce of sense, but, even then, he knows that authors make very bad insurance companies.
In Conclusion (Finally)
Most lawyers who write form contracts or terms of service don’t pay much attention to warranties and indemnities clauses as those contracts evolve through various versions. Once something gets inserted into a warranties section, it lives forever and, over time warranties grow longer and longer.
PG says it’s time to take an intelligent look at warranties authors are asked to make to see if such warranties are reasonable and fair in an international market for books. It’s time to use insurance for risks over which an author has no control.
Ultimately, it’s time for publishers to treat authors like real business partners instead of something less.