Parts of the warranty aspect are easy enough: they require you to affirm that you are the author of the work, and that you have not infringed the copyright of someone else by copying their work verbatim.
The libel aspect
is problematic, though, as you may write something
you believe to be accurate, but someone else
deems libelous.
Whether a court finally decides in your favor
or that of the "libelled" party,
your life—and finances—may be ruined by a
legal action that the publisher should have
prevented by careful editing and fact-checking.
It's the indemnity that causes
the biggest problems. Some
publishers try to require authors to cover all
the costs of a lawsuit against the publisher
over the book. So if a hotel or restaurant owner
decides that your description of his establishment
is losing him business, and he or she sues the
publisher, you—the author—must pay
all the publisher's legal bills and court costs.
This is grossly unfair, as the publisher
(and the editors) have a large share of the
responsibility for what goes into a book (or
stays in).
The best situation is if the publisher includes
the author within the coverage of the company's
liability insurance. A fair situation
is that authors agree to cover their
own legal expenses, or share expenses of defense
with the publisher.
Publishers will tell you that "the clause will never be used." If the poor author, rather than the rich publisher, assumes all liability, no one will sue because authors have no money, so a lawsuit would be futile.
Hogwash! If
it'll never be used, there's no need to have
it in the contract. Take it out.
If you have a house, or retirement savings,
they could go into some lawyer's pocket because
of a mistake introduced into your work by
an under-age, under-paid editor. Is losing
your house worth it?
Even
with an acceptable warranty and indemnity
clause, be careful what you write. As the
phrase goes, "you
can say you had a bad meal, but you can't
call the owner a crook."
What I did as a guidebook author is to report
what I found—exactly. If
I patronized an establishment three times, and
found the bill incorrect three times, that's
what I'd say: "All three times I dined
here there were mistakes on the bill in favor
of the restaurant. I don't say, "This hotel
(restaurant, club, etc.) cheats on its bills."
If I had a bad meal, I'd say "When I ate
there last, I had......, and I didn't like it."
I
may be sued for saying "They can't make
a decent chocolate peanut butter quiche here," because
maybe the head chef was out sick that night,
and he can indeed make a good one.
But I don't think they'd win a suit if I wrote
that I didn't like their chocolate peanut butter
quiche, because they can't prove that I did.
By "writing between the lines" this
way, you can tell your readers what they need
to know while defending yourself against legal
attack.
Bad warranty and indemnity clauses are one of the reasons I abandoned guidebook writing. My publisher began to demand acceptance of clauses that put the entire risk of lawsuit damages on me. This much risk made no business sense for me, so I wouldn't sign the contracts, so my relationship with the publisher ended.
It was an excellent business decision on my part, and I am now far better off self-publishing on the Internet.
