The scary and risky, warranty and indemnity clauses in publisher agreements for authors; Unknown and less known authors are typically forced to accept it
I started regularly writing online public posts on my blogs from around Sept. 2011 onwards. Prior to that I had put up very few technical review and how-to posts on one blog but under a pseudonym (Gabbar Singh).
Blogger and Wordpress were, and continue to be, my main blog platforms. As far as I know and can recall, neither Blogger nor Wordpress asked me to indemnify them for any legal problems they may face due to my posts. I mean, I don't recall reading that in any user agreement or having to check a box saying that I indemnify them. On Facebook too, I don't think I have been asked to indemnify Facebook for any legal problems with posts that I put up on Facebook.
I realized that I am legally responsible for my blog and Facebook (social media) posts from both copyright and defamation perspectives. Over time, I read up on copyright and defamation laws in India and I think I now have a decent idea about these laws in India. I try hard to ensure that my posts, even when they criticize somebody, are within copyright and defamation laws in India. That gives me the confidence that if somebody files a lawsuit against me in India, for my blog (and other social media posts like Facebook), I will be able to successfully defend myself in such a lawsuit.
So it is a little scary in India to write critical posts against named persons due to the lawsuit possibility. But if one knows what criticism is permitted and what isn't by Indian law, then though it is serious stuff one need not be so scared if one writes criticism within the bounds of Indian defamation law.
But it is when one self-publishes a book or I think even when one publishes a book in the traditional way with established publishers, that the legal exposure for the author becomes very scary and theoretically limitless, with direct negative impact possibility on an author's financial situation.
I recently came across a few USA articles on how publishers unfairly force authors to sign potentially risky, broad warranty and indemnity clauses. It was good in a way to know that other authors too have felt that way and expressed it in the USA. Here are the articles:
1) Stop Forcing Authors to Take Unlimited Financial Risks, https://www.authorsguild.org/industry-advocacy/stop-forcing-authors-to-take-unlimited-financial-risks/, 18th December 2015
2) Writers and Editors (Pat McNees's blog) , http://www.writersandeditors.com/blog.htm?post=869703, 13th August 2012
3) Indemnity clauses leave freelancers open to lawsuits, https://www.poynter.org/news/indemnity-clauses-leave-freelancers-open-lawsuits, 1st May 2015
4) Reduce the Sting of Warranty and Indemnity Clauses in Publishing Contracts. https://www.sidebarsaturdays.com/2016/10/22/httpwp-mep7vddb-mx/, 22nd Oct. 2016
The same issues apply for self-publishing platforms in India. Due to concerns related to indemnity clause with Pothi.com that I had to agree to (check box selection, if I recall correctly) as part of the process of using Pothi.com for self-publishing paperback version of my book, I have limited shipment of the paperback book from Pothi.com web sale page to India only. This way I am exposed to Pothi.com indemnity related legal risks only in India (for the paperback book which sells at some price - not free), which I think is something that I can somehow manage, as I am sure that my book content is well within laws in India.
I also put up my free ebook on Pothi.com besides other sites. The ebook (free download) page on Pothi.com does not allow me to restrict downloads to India. So I think that download is possible for all. Does that expose me to Pothi.com indemnity legal risk outside India too? Perhaps. I think I should discuss this with them. Note that other sites like archive.org, OpenLibrary.org and self.gutenberg.org where I have put up the free ebook, did not ask me to indemnify them, as far as I can recall.
The indemnity clause means that I have to bear Pothi.com's legal expenses if any legal suit is filed against my book!!! That is scary for me. I am OK with me bearing legal costs if anybody files a legal suit against me directly for the book. But paying Pothi.com's lawyers is something that would make me very uncomfortable. Anyway, I don't have a choice. Unless I agree to the indemnity clause, I cannot self-publish the paperback version of the book using Pothi.com self-publishing platform (or any other Indian self-publishing platform as this indemnity clause seems to be a standard practice). So I have crossed my fingers and have hoped for the best. But I want to play somewhat safe by limiting my Pothi.com indemnity risks for the book to India only.
I would be very happy to put up my "Who am I? I am I ..." ebook on Google Books for free. But Google Books requires me to indemnify them! And that's an international indemnity clause sign-off (via web form) with a mega international company! Far more scarier than sign-off on Pothi.com for books sold in India only.
Amazon does not allow free ebooks, I believe. But even if it did, it also has the same indemnity issue.
Most people simply agree to the indemnity clause as there is no other choice when it comes to companies like Google who will refuse to modify even one word for an individual and unimportant user.
The saving grace is that companies like Google and Amazon will face a lot of bad press if they casually use the indemnity arrangement to force authors to pay significant money to them (Google and Amazon), for legal expenses incurred for frivolous and patently unfair cases filed against Google & Amazon for authors' books. But the authors essentially have to depend on Google or Amazon doing the right thing in such scenarios. Legally, Google and Amazon need not do the right thing - they can simply charge the author(s) for expenses incurred by Google and Amazon for even frivolous lawsuits filed against the books (on Google and Amazon).
Not a happy state of affairs for authors. But that's life. Perhaps I too may give in to the power of Google Books platform and agree to their indemnity clause, so as to put up my free ebook on Google Books. Then I will just hope and pray that nobody files lawsuits against the ebook on Google Books and that even if they do, Google Books does not burn a big hole in my finances by charging me for their legal expenses.
Blogger and Wordpress were, and continue to be, my main blog platforms. As far as I know and can recall, neither Blogger nor Wordpress asked me to indemnify them for any legal problems they may face due to my posts. I mean, I don't recall reading that in any user agreement or having to check a box saying that I indemnify them. On Facebook too, I don't think I have been asked to indemnify Facebook for any legal problems with posts that I put up on Facebook.
I realized that I am legally responsible for my blog and Facebook (social media) posts from both copyright and defamation perspectives. Over time, I read up on copyright and defamation laws in India and I think I now have a decent idea about these laws in India. I try hard to ensure that my posts, even when they criticize somebody, are within copyright and defamation laws in India. That gives me the confidence that if somebody files a lawsuit against me in India, for my blog (and other social media posts like Facebook), I will be able to successfully defend myself in such a lawsuit.
So it is a little scary in India to write critical posts against named persons due to the lawsuit possibility. But if one knows what criticism is permitted and what isn't by Indian law, then though it is serious stuff one need not be so scared if one writes criticism within the bounds of Indian defamation law.
But it is when one self-publishes a book or I think even when one publishes a book in the traditional way with established publishers, that the legal exposure for the author becomes very scary and theoretically limitless, with direct negative impact possibility on an author's financial situation.
I recently came across a few USA articles on how publishers unfairly force authors to sign potentially risky, broad warranty and indemnity clauses. It was good in a way to know that other authors too have felt that way and expressed it in the USA. Here are the articles:
1) Stop Forcing Authors to Take Unlimited Financial Risks, https://www.authorsguild.org/industry-advocacy/stop-forcing-authors-to-take-unlimited-financial-risks/, 18th December 2015
2) Writers and Editors (Pat McNees's blog) , http://www.writersandeditors.com/blog.htm?post=869703, 13th August 2012
3) Indemnity clauses leave freelancers open to lawsuits, https://www.poynter.org/news/indemnity-clauses-leave-freelancers-open-lawsuits, 1st May 2015
4) Reduce the Sting of Warranty and Indemnity Clauses in Publishing Contracts. https://www.sidebarsaturdays.com/2016/10/22/httpwp-mep7vddb-mx/, 22nd Oct. 2016
The same issues apply for self-publishing platforms in India. Due to concerns related to indemnity clause with Pothi.com that I had to agree to (check box selection, if I recall correctly) as part of the process of using Pothi.com for self-publishing paperback version of my book, I have limited shipment of the paperback book from Pothi.com web sale page to India only. This way I am exposed to Pothi.com indemnity related legal risks only in India (for the paperback book which sells at some price - not free), which I think is something that I can somehow manage, as I am sure that my book content is well within laws in India.
I also put up my free ebook on Pothi.com besides other sites. The ebook (free download) page on Pothi.com does not allow me to restrict downloads to India. So I think that download is possible for all. Does that expose me to Pothi.com indemnity legal risk outside India too? Perhaps. I think I should discuss this with them. Note that other sites like archive.org, OpenLibrary.org and self.gutenberg.org where I have put up the free ebook, did not ask me to indemnify them, as far as I can recall.
The indemnity clause means that I have to bear Pothi.com's legal expenses if any legal suit is filed against my book!!! That is scary for me. I am OK with me bearing legal costs if anybody files a legal suit against me directly for the book. But paying Pothi.com's lawyers is something that would make me very uncomfortable. Anyway, I don't have a choice. Unless I agree to the indemnity clause, I cannot self-publish the paperback version of the book using Pothi.com self-publishing platform (or any other Indian self-publishing platform as this indemnity clause seems to be a standard practice). So I have crossed my fingers and have hoped for the best. But I want to play somewhat safe by limiting my Pothi.com indemnity risks for the book to India only.
I would be very happy to put up my "Who am I? I am I ..." ebook on Google Books for free. But Google Books requires me to indemnify them! And that's an international indemnity clause sign-off (via web form) with a mega international company! Far more scarier than sign-off on Pothi.com for books sold in India only.
Amazon does not allow free ebooks, I believe. But even if it did, it also has the same indemnity issue.
Most people simply agree to the indemnity clause as there is no other choice when it comes to companies like Google who will refuse to modify even one word for an individual and unimportant user.
The saving grace is that companies like Google and Amazon will face a lot of bad press if they casually use the indemnity arrangement to force authors to pay significant money to them (Google and Amazon), for legal expenses incurred for frivolous and patently unfair cases filed against Google & Amazon for authors' books. But the authors essentially have to depend on Google or Amazon doing the right thing in such scenarios. Legally, Google and Amazon need not do the right thing - they can simply charge the author(s) for expenses incurred by Google and Amazon for even frivolous lawsuits filed against the books (on Google and Amazon).
Not a happy state of affairs for authors. But that's life. Perhaps I too may give in to the power of Google Books platform and agree to their indemnity clause, so as to put up my free ebook on Google Books. Then I will just hope and pray that nobody files lawsuits against the ebook on Google Books and that even if they do, Google Books does not burn a big hole in my finances by charging me for their legal expenses.
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