Where there is a way to manipulate the system to sell books, a handful of authors will find it. We’ve had high profile cases of plagiarism and fake reviews (“sock-puppeting”), and now the Wall Street Journal has called our attention to authors who buy their place on “best-seller” lists by hiring a company that buys the books. By anointing themselves “best-sellers,” a label that lasts long after the book drops its rank, these authors mislead consumers into believing their book is popular and thus worth buying.
I can understand the author’s motivation: it’s hard to get noticed in a marketplace inundated with books. However, these authors should weigh their desire for attention against the drawbacks of obtaining it through dishonesty. If an author has oodles of money to burn buying his own books and does not have the mores to resist such behavior, then maybe the thought of legal problems and embarrassment will make a difference.
I asked Max Kennerly at Litigation & Trial for his thoughts on potential legal claims. Here’s what he had to say:
Courts are sharply split on whether readers who are (allegedly) deceived by the marketing of a book can recover damages. Perhaps the most revealing cases involve The Beardstown Ladies’ Common-Sense Investment Guide, a book purporting to show how an unassuming investment club had made an extraordinary 23.4% annual return over a ten-year period. An audit revealed their return was more around 9.1%.
Several lawsuits were filed alleging deceptive trade practices, false advertising, fraud and unjust enrichment. Intriguingly, courts in New York and California reached directly contrary results. The court in New York found “the First Amendment protects even erroneous statements in the contents of the Book, and on its cover, flyleaf and in the introduction,” while the court in California found “the advertising, alleged in the complaint to be false, was commercial speech which was not, in the context presented, protected by the First Amendment.” Hyperion eventually settled the case by offering readers the ability to trade the books for any other Hyperion title.
Thus, while these suits can be filed and survive in some jurisdictions, particularly California, thus far they haven’t produced much beyond refunds or replacements.
So, we could file a class action (keeping in mind that it would be hard to prove that we purchased the book in reliance on its “best-seller” status) or we could just return the book. It seems both would get us the same result.
With or without legal recourse for consumers, perhaps the lesson for us is that the “best-seller” label is meaningless. If we ignored these lists and that label, authors wouldn’t have as much of an incentive to skew sales figures to their advantage.