I guess it is entirely typical of the Internet that today, when people are supposed to be protesting against a very dangerous proposed law, that my Twitter feed is full of people arguing over whether the protest is being carried out in the right way, or making jokes about Wikipedia. We are very easily distracted monkeys. Well, none of the sites I run have gone dark today, which doubtless makes me a villain in some quarters. Equally, I’m just about to write about SOPA, which will make me a boring killjoy in the eyes of others. Before deciding how to be outraged, however, please take some time to read the following.
Debates about proposed restrictive laws often founder on the argument of “it couldn’t happen to me”. It’s the “first they came for the X, but I was not an X” problem. The chances are that most of you won’t be directly affected. You’ll be indirectly affected because the choice of websites that you have access to, and the type of posts you can make on social media sites, will change drastically, but you are unlikely to be sued. That’s not the case for me. As far as I’m concerned, it will be only a matter of time before SOPA shuts down my publishing and book-selling business. Here’s why.
At the end of last year I wrote about a law case in the US under which HarperCollins (a division of News International) is trying to claim that it owns the ebook rights to every paper book it publishes, whether the contract mentions ebooks or not. As I predicted, this is already affecting my business. Publishers are doing their best to frighten authors off self-publishing their back catalogs in ebook form. Mostly they don’t have any intention of publishing the ebooks themselves, they just want to grab as many rights as they can, just in case.
However, if a publisher does want to stop an author selling ebook rights then currently they have to go to court, as HarperCollins are doing. Under SOPA they won’t have to. They can just state that their copyright is being infringed, and shut down any ebook publisher or bookseller that dares to deal with the titles.
Currently my author and retail contracts ask the author or publisher to attest that they have the rights to the material that they are asking me to publish or sell. Under SOPA that’s not enough. To be fully compliant I would have to undertake an expensive copyright check on every book I publish and sell. And I do mean every book. Under current laws if it turns out that something I’m selling has rights issues then I can take it down, which I’d be happy to do. Under SOPA there only has to be one, unsubstantiated, complaint and my entire website can be taken offline. And because SOPA is predicated on the idea that ordinary citizens are guilty until they can afford an expensive lawyer to prove them innocent, I’d have no chance of challenging this. Indeed, SOPA is written in such a way that the mere act of questioning whether a complaint is justified or not would expose me to the prospect of far worse penalties than simply giving up and closing my business. (See Mashable for the gory details.)
Now you may think that publishers simply wouldn’t bother with someone small like me. What’s in it for them? But that’s not the problem. The problem is that anyone who loses a SOPA case becomes liable for damages, and to pay the legal costs of the company that lodges the complaint. So the publishers don’t need to do anything. Very soon enterprising lawyers will be devoting their time to hunting around the Internet looking for potential victims, and encouraging complaints against them. If the victim shuts down, there is very little cost. If the victim fights then the lawyer has a nice piece of business that will probably cost the publisher nothing. It will be like the “sue companies for liability for accidents” business, except this time it will the companies who benefit and the little guys who get taken to the cleaners.
If you still think it won’t happen, here’s something to chew on:
To Harvey Silverglate, the author of “Three Felonies a Day: How the Feds Target the Innocent”, this is par for the course in America’s federal justice system today. A couple of trends have combined to threaten justice and liberty. First, federal statutes are often so poorly written and so vague that they are in effect incomprehensible. This gives excessive discretion to bureaucrats and prosecutors, with their own career ambitions, who apply them haphazardly.
Second, federal law has been moving away from mens rea (“guilty mind”), a common-law tradition that suggests that a person who had no idea he was breaking a law should not be accused of doing so. With bloated federal legislation and without mens rea you can accuse most people of something or other, says Mr Silverglate. The question should be, he says, whether charges are reasonable when they run “counter to all human instinct and experience”.
That’s nothing to do with SOPA, and it isn’t some ranting lefty who is complaining. It is from an article in The Economist, and the case is about a marine biologist filming orcas.
If that sort of thing worries you, and really it should, please use some of that spare time you have from not reading Wikipedia (hah!) to lodge a protest. WordPress has helpful links for people both inside and outside the US, and an informative video.