Some Legal Developments

Have you heard about the FTC's new rules/guidelines for bloggers?

On Monday, the Federal Trade Commission released a revised "Guides Concerning the Use of Endorsements and Testimonials." The new rules require bloggers who review products (anything from a book to a DVD to a baby crib) to disclose if they received the product for free when giving an endorsement.

So if you bought a book on Amazon, and then post a review, well, you didn't get it for free. But if a publisher or an author sends you an ARC, the FTC wants you to disclose this fact on your blog. According to the Washington Post, breaking the new guidelines could result in up to $11,000 in fines.

FTC Bureau of Consumer Protection spokesman Richard Cleland states that newspaper book reviewers are exempt, because it's the newspaper who receives the ARC, not the individual reviewer. He also stated that he saw no issue with a blogger receiving a book for free, as long as they didn't then link to a site to buy the book, and the blogger didn't keep the book after reviewing it.

Which, you know, leads to a slippery slope for those of us with friends in the publishing world. Here at Fictionistas, we don't actively seek ARCs to review. Frankly, we're all way too busy to read and report on books that we didn't ourselves choose to read. We're not a review site...we're a site that focuses loosely on YA fiction (in addition to other things), and though occasionally we will do reviews, it's generally because we read a book that we loved so incredibly much that we wanted to spread the word.

Usually that's a book that we ourselves bought (as authors, we know the importance of going into the bookstore and adding to the sales of a book), but what is an author friend sent me a copy of her book. I'm talking out of the goodness of her heart here, not because she wanted me to review it. And I read it, and loved it, and wanted to blog about it. Is Mr. Cleland saying that I would need to a) disclose that my friend sent it to me for free (please note that I do disclose whether an author is a friend of mine if I rave about her book, simply because I don't want to hide that, and also because I want to brag a little that I'm friends with this super cool person), and b) give away my copy once I've blogged on it, simply because I got it for free?

Seriously?

And how exactly are they ever going to enforce this potential $11,000 fine provision?

Anyway...I have friends who work for the FTC, so I'm going to ask them to clarify. And the new guidelines don't go into effect until Dec 1, so I'm sure they will be revised before then. So we shall wait and see how things shake out.

Also in legal/publishing news, yesterday the U.S. Supreme Court considered whether federal judges have the power to approve settlements in copyright fights. The case stems from a NY court's approval of an $18 million settlement of a class-action brought by writers who argued their work was improperly reproduced for electronic distribution.

Newest Justice Sonia Sotomayor was absent from the bench. She recused herself for undisclosed reasons, but probably because she heard a similar case brought by individual freelanders back in 1997 when she was a district court judge. She sided with the publishers, but the 2nd Circuit Court of Appeals reversed her decision on the basis that the trial court lacked jurisdiction over claims related to unregistered works. (The Supreme Court later upheld the appellate ruling, 7-2.)

In the current case, the district court approved the settlement, and the 2nd Circuit ruled that the lower court had no jurisdiction and should not have approved the deal. They cited a federal law limiting copyright lawsuits to those who have registered their works.

The US gov't argued in their amicus brief in the current case that the 2nd Circuit ruling should be vacated. Solicitor General Elena Kagan wrote "An industry-wide settlement is unquestionably in the publis interest because it recognizes freelance authors' copyright rights while ensuring the public availability of their works."

The Computer and Communications Industry Association and NetCoalition (which represent Google, Microsoft, eBay, Amazon, and other techy companies) field a brief arguing that the 2nd Circuit ruling should stand.

So we shall see...