October 13, 2005
Amazon Not Liable for User Book Reviews--Hammer v. Amazon
By Eric Goldman
Hammer v. Amazon.com, 2005 WL 2467046 (EDNY Sept. 27, 2005)
This is a continuation of Hammer v. Trendl, 2003 WL 2146686 (EDNY Jan. 18, 2003). Hammer is a self-published author of handwriting analysis books. He had a vendor relationship with Amazon (unclear from this case what it was--maybe zShops?) to market his books. A user, Trendl, posted negative reviews of Hammer's books on Amazon. Things went sour with Amazon, and they terminated his account.
Hammer then went into a litigation frenzy, suing Trendl and Amazon. He worked pro se, a status that make the entire legal process a little gummy. For example, how is the judge supposed to respond to the claim that he is suing for cyberpiracy under admiralty law? (Cyberpiracy; piracy on the high seas...get it?).
Hammer didn't make his life any easier by being a vexatious litigant. Things got so bad that a judge ordered Hammer from communicating directly with Amazon, instead requiring him to communicate only through Amazon's attorney. You know the lawsuit isn't going to go well for a pro se plaintiff when things get that bad.
In any case, the Hammer v. Trendl ruling implicitly determined that Trendl's postings were pure opinions, and thus there were no facts to form the basis of a defamation. Amazon effectively piggy-backed on this ruling, and the judge in this case basically pointed to that ruling and said "me too." Because the postings weren't defamatory, Amazon had no liability.
Based on the limited facts in the ruling, it seems like Amazon should have also been able to dismiss the claim on 47 USC 230. However, Hammer alleged that Amazon and Trendl were "colluding," and I wonder if that allegation would have been enough to survive a motion to dismiss based on 47 USC 230.
Hammer also alleged that Amazon infringed his copyright by displaying a cover of Hammer's book. On its face, this cause of action is pretty serious but the facts are vague. The court says the allegation of copying is that "a graphic depicting Plaintiff's book cover was linked to a page where Trendl's comments were posted." I'm not sure what this means. Amazon, of course, hosts graphics containing the covers of books it sells, and if those graphics are infringing, Amazon could be on the hook. If this means that someone (Amazon, Trendl or someone else) merely posted a URL on Amazon's site to a graphic of the book cover on someone else's servers, then the judge got it right.
The judge continues with an alternative reason to dismiss the copyright claim: "Plaintiff contracted to sell his book on Amazon. Amazon displayed the cover of the book on its web site. It is impossible for this Court to comprehend how such an act constitutes an infringement of Plaintiff's copyright."
I have no difficulty imagining this at all. It simply depends on what's in Amazon's contract. The contract could get permission to use the cover; or Amazon could steal a graphic, which wouldn't surprise me in the least. So as a practical matter, I don't understand how this rationale can support a motion to dismiss--it seems like we need more facts here.
In any case, we have a derivative liability case that doesn't cite either 230 or 512. Just a reminder that those safe harbors aren't the entire universe of doctrines exculpating defendants for other people's conduct.
Hat tip to Evan Brown for catching this one--I have alerts for cases on both 47 USC 230 and 17 USC 512, but this case triggered neither! Nice going, Evan.
The Hammer v Trendl case is interesting because of what it could have been. Are there any cases which clearly define what are the limits of online reviews, whether books, restaurants or whatever else can be reviewed? The question is valid, even if the plaintiff did not make a good case.
Unfortunately, with Hammer's presentation in the original case (see opinion here: http://www.fklaw.com/news-6.html) not having much substance, it falls flat. A more substantive case, with a stronger, more capable plaintiff, will eventually come along to better define what is allowed online.
Trendl seems to have been picked on maybe because of his status as one Amazon's top 100 reviewers. He has hundreds of reviews, and even a website selling Hungarian books (http://www.amazon.com/gp/cdp/member-reviews/A3FVAWZNKW9GX and http://hungarianbookstore.com). He covers the gamut in topics (recent reviews include a Weber grill, a job hunting book, and a biography of John Lennon). Hammer, too, has a website, selling primarily his own books on mindreading and handwriting analysis (http://www.mindreading.net). Had Hammer had a better case, maybe he could have stirred up interest in his self-published books (titles like "Mind Reading
in Written Form!"). Any publicity is good publicity?
It looks like Hammer tried to have his original case considered by the Supreme Court, which turned down the opportunity (http://www.supremecourtus.gov/orders/courtorders/042505pzor.pdf).
Amazon's interest in this must be to protect their great investment in book reviews. They use book reviews as a marketing tool on their site and thousands of affiliate sites. If a negative review of a little known self-published book could dent their ability to use reviews, a lot of money ould be at stake. As a marketing device, the interaction between Amazon and the reviewers is also valuable, since in the process of reviewing, it causes reviewers to return to the Amazon.com website.
Posted by: Book Shelf Ghost at October 16, 2005 10:45 AM
Thanks for the great comments. There's no bright line about what's permissible in product reviews. In general, a reviewer is on pretty safe ground if the reviewer expresses only accurate facts or the reviewer's opinion. There are cases on this topic, but they are usually fact-specific.
Irrespective of that, it is clear (at least to me) that Amazon's not liable for third party reviews under any circumstance per 47 USC 230.
Posted by: Eric Goldman at October 16, 2005 10:21 PM