A Gronking To Remember Lawsuit Gets Strange While Amazon Argues Liability Would Chill Speech And Art

Somewhat surprisingly to me, the tale of the now infamous eBook, "A Gronking To Remember" continues to develop. Yes, this whole thing started when a book purportedly written by a woman named Lacey Noonan, which details one housewife's sexual liberation at the sight of Patriots tight-end (heh) spiking a football, was taken down off of Amazon. The speculation at the time was that the cover of the book was the cause of the takedown, with the NFL being the likely complainer, as the cover features Gronkowski in full uniform.

We learned later that the NFL wasn't actually the reason for the takedown. Instead, it was the photo of that couple embracing had apparently been appropriated from the wider interwebz without permission by the author or whoever designed the cover. That couple, choosing to remain anonymous, was suing not only the author but Amazon and Apple as well for selling the work on their respective platforms. So, what have we learned since?

Well, to start with, Lacey Noonan is a dude. Greg McKenna to be specific. Which, whatever, there's no reason a guy can't write sex-fics about a housewife wanting to nail a football player, but it was a surprise. We've also learned that the New England Patriots did indeed complain to Amazon about the appearance of the team's uniform on the cover, but it turns out Noonan/McKenna removed The Gronk from the cover and republished the book again, with the image of the anonymous couple still in place, we assume. We've also learned that Amazon has an automated system that checks the works authors seek to publish for pure plagiarism or insanely offensive material.

That last bit is becoming an issue in the case, as there are some suggesting that if Amazon can scan the text to omit plagiarism, why can't it run facial recognition software to search for unauthorized images on the covers? And if that question actually sounds reasonable to you, go get your head checked because you are insane. Checking text against a database of fiction is one thing. A very impressive thing, actually. But saddling Amazon, who isn't the publisher in this case, as they offer a self-publishing platform to sell works, with the responsibility to scan faces on bookcovers and then go seek out those people to ensure permission has been granted is crazy-pants. Not only is it operating under the theory that everything is infringing first until it's proven not to be, but it's asking the wrong party to be responsible for the wrong things. Nobody, for instance, is asking brick and mortar bookstores to police bookcovers. Amazon's argument in their brief is exactly on point.

"If Amazon were to be denied summary judgment in the present case, (1) Amazon would be forced to closely examine every aspect of every book an author sought to self-publish through KDP and CreateSpace (and Audiobook Creation Exchange), (2) Amazon‟s costs would likely increase substantially, (3) the prices Amazon charges to its self-publishing customers could rise significantly, (4) some authors and independent publishers might no longer be able to afford to publish their works, and (5) Amazon would likely be inhibited from allowing authors to self-publish potentially controversial works."

In other words, asking Amazon to pretend it's a publisher, when it isn't, would be a great way to kill self-published books. Which means a massive chill on speech and art, all in the name of not holding a self-publishing author responsible for what he or she publishes. Expect this to get tossed quickly under section 230 grounds.

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