What Justifies A Judgment?

A few years back a friend came to me and said she had a book of poetry that she wanted to publish. She wanted to do it on her own but she didn’t know how. I am a graphic artist and said I could lay it out and design it for her and then we would think about what to do next. At the time I had a number of friends who were starting their own publishing businesses. Thanks to the latest innovations in desk top publishing, print on demand, and the ease of internet marketing through such online sites as Amazon.com and Barnes & Noble, lots of small publishing businesses are forming. I decided to publish her book for her and then went on to publish two more books of my own.

The right to publish independently is one of the most time-honored of American traditions. Look at Benjamin Franklin and Thomas Paine and Henry David Thoreau. Small presses have always been the medium for people who had something to say and needed a means to say it.

The recent controversy around the Misha Defonseca hoax has brought so much scrutiny in so many areas that it is just mind-boggling to me. I have been blogging about it regularly, giving phone interviews, and participating in many discussions online and in person. It is horrific and there is a long way to go before all is revealed. But one thing that people ask me over and over and over is “what in the world justified a $33 million judgment against Jane Daniel and Mt. Ivy Press? What did she do that was horrendous enough to warrant that huge amount?” It’s a good question --- a question everyone in the publishing industry, independent or corporate, should be asking!

According to the judgment of the court Daniel and Mt. Ivy “engaged in deceptive business practices”, “failed to adequately promote the author’s book”, and “withheld monies owed the author”. Okay, first of all even if all of that was true (and based on the testimony of the sort of person Misha has turned out to be can we not assume much of her testimony was false?) what makes the case worth $33 million for a small independent publisher?

First of all, the book sold 5000 copies in the U.S. --- not a spectacular amount but certainly respectable. That means that even if Misha received not a penny from the publisher, the court awarded her roughly $4400 per book -- $4400 PER BOOK! We all know that every publisher takes the lion’s share of book profits so what in the name of heaven justifies an award of $4400 per book?

Second, has there ever been a publisher anywhere who didn’t say to an author “I’m going to make your book a bestseller!” Yeah. And all writers want to believe that. Baby, I’m going to make you a star and if it doesn’t work out you get $22 million. And whatever happened to the admonition caveat emptor? Did Misha have NO responsibility in checking out the publisher she was about to sign a contract with? If Mt. Ivy did not have the credentials she needed to promote her book why did she sign a contract with them?

Third, what exactly are “deceptive business practices”? Particularly now that we know that the contract Misha signed with Mt. Ivy verified that her story was true and autobiographical. So the entire relationship was built on a lie --- a lie unknown to the publisher but certainly not to the author --- from the very beginning. If the deceptive business practices were that Mt. Ivy did not have the resources and/or experience to adequately promote and market the book shouldn’t the client bear some responsibility for checking that out in advance?

I’ll be honest; this judgment has me very afraid. If this judgment could be handed down based on the facts presented in this case, what could happen to other publishers? This judgment is scary --- or should be to all publishers. It almost seems like a way of silencing the press. Take a risk on an author whose story strains credulity and who turns around and sues you and you stand to lose everything.

Of course the answer that we get is that the amount was "punitive" --- designed to punish the publisher for the author's charges against her. The author, of course, had lied from the beginning and entered into a contract based on her lies --- and reaped a huge reward. I’d really like to know what Jane Daniel and Mt. Ivy Press did that justifies a $33 million dollar award. I think every publisher in America should ask the same question.