This new commentary blog is intended to look outward to the world, not just focus on pingbacks to my own narrative. But my own experience with self-publication, most of all online (as detailed in Chapter 10 of my second DADT book) provides a gamer’s road map to all the major issues.
When I self-pubbed my first DADT book with my own printing in 1997 centered around my own narrative encircling the military gay ban, I expected word-of-mouth to sell copies, and indeed that happened, especially in the first eighteen months or so. A couple speaking engagements in the Twin Cities (at Hamline University and then the University of Minnesota, as well as a Unitarian fellowship) helped. I also networked a lot with the Libertarian Party of Minnesota, another topic that I’ll come back to soon (given the national party’s convention in Orlando, just finished, and how it could affect the 2015 race).
In the summer of 1998, I did put the entire text of the book online for viewing and lookup. In time, I was heavily indexed in Google and many other search engines, without having to do much work with metatags to attract them. I was clearly attracting a non-paying audience (judging from email response of the times) with free search engine exposure. I was entering a new paradigm, “Fame” (like the movie) and the asymmetric ability to affect a political debate without money. Indeed, this was the predictor of Reid Ewing’s sequence of videos in 2012, “It’s Free”.
My practice would become controversial. It’s also uninsurable (see the book) as the risk is unknown, byt I have yet to be served (knock on wood). Yes, I do get chased to pimp copies of my books (overpriced).I don’t need to make money from the publishing since I am “retired” (and previously had accumulated “rentier” assets in the stock market) but some people think my practice undermines their ability to make a living. I’ve heard that from LP friends (I am the new “threat”), and even Mark Cuban told me in an email that this was probably a bigger issue for big publishers and Hollywood than actual piracy.
My strategy, with flat sites of simple html, as extremely effective until well after 9/11. Gradually, social media eventually stole the thunder of a lot of what I had done. Not so much Myspace, but indeed Facebook and Twitter (and Instagram). But now I use social media platforms myself. They actually solved one problem for me somewhat (“conflict of interest”, as I had seen it, as explained here and here , note also the 2000 white paper on employee COI ), while creating new ones. Blogging gradually replaced flat sites, and I started using Blogger in early 2006.
I’m getting ahead of myself, but I did want to outline the major strategic “threats” to my ability to continue this activity, which has indeed comprised my Second Life. One was the possibility of being forced (by threat of prosecution) into self-censorship, as represented by the Communications Decency Act of 1996 and later COPA, the Child Online Protection Act of 1998. The other major concern would center around the major possible intellectual property torts, like copyright infringement, trademark, and then harm areas like defamation, invasion of privacy, insofar as these are possible perils that I, the speaker, could encounter. More serious is depending on a permissive climate that facilitates cyberbullying and recruiting of terrorists online. That’s maybe some “bad karma”. This leads to a discussion of downstream liability of service providers and publishing platforms.
The original CDA could have been quite draconian, but the censorship portions were struck down by the Supreme Court in 1997. I actually attended the oral arguments in March 1997. In 1998, just as my online stuff was starting to get found a lot, Congress passed COPA. I give a summary of my involvement with COPA on my “do ask do tell notes” blog here. This was a major element of my online life from 1998 until 2007. The Supreme Court had weighed in twice before the final district court ruling (and I went to the oral arguments the second time). I have more details on my legacy site here.
The irony of the CDA is that it was part of a bigger Telecommunications Act of 1996, one provision of which, Section 230, gives service providers immunity from downstream liability for torts committed by users in generating “amateur” content. Electronic Frontier Foundation as a major primer on the topic here. Section 230 shields intermediaries from liability from secondary liability for various torts, the most likely of which is defamation (with “online reputation” issues compounded for others), but which would also include invasion of privacy, and probably the results of cyberbullying and terror recruitment, for example.
The defamation issues crop up repeatedly with “review sites” like Yelp!, where some contractors and medical or dental providers try to force customers to sign controversial (and morally objectionable) no-disparagement clauses. Privacy has come up in the notorious Gawker case, which also raises the question as to whether big business interests should subsidize combative litigation of others. Defamation suits are less common on ordinary blogs and older sites. However, a major problem, somewhat connected to review sites, has been SLAPP, or strategic lawsuits against public participation, somewhat problematic in states with weaker consumer protection laws. There is still no federal anti-SLAPP law.
US law is more protective of providers than most other countries, and Section 230 has its critics. There have been proposals, for example, that Section 230 become overridable by state laws. Others, especially on the Left, say that, since big tech companies are so profitable (the biggest companies that survived the Dot-com bubble), they should share in the responsibility for the horrific outcomes of cyberbullying and terror recruitment. Major tech companies do remove objectionable content (as TOS violations) that is brought to their attention, and have some ability to filter some material (like ISIS propaganda). Recently, the companies have promised the EU to “step right up” and remove flagged content within 24 hours.
Ethically connected to the issue of privacy invasion is the idea of a “right to be forgotten”, which is being enforced in Europe and causing quite a bit of expense and headache for search engine companies in removing old results of true but damaging information (like petty convictions or old debts or foreclosures), material that in the old world would have taken a lot of trouble to look up manually at physical county courthouses in “public records”. Site content itself is not removed, just search results. But in maybe three unusual cases, I have been asked to remove information involving specific parties from my own sites.
The other big pillar of legal risk would, of course, be copyright. I had to ponder this when writing my first book in the 1990s. There was a whole cottage industry for securing permission for “quotes”. I wound up simply keeping my quotes shorter than I had originally wanted. The analogue of Section 230 is the “Safe harbor clause” of the Digital Millennium Copyright Act if 1998, which shields providers from secondary library for copyright infringement if they take down infringing material immediately. The major objection is that large media companies bully individuals, and that YouTube and others sometimes take down material without due process on frivolous claims, although there is an appeal process. There is little practical incentive not to file these claims. And in 2011, especially, we fought the battles to stop PIPA and SOPA which would have effectively given major media companies unprecedented power to have sites removed from the web for the infringement of just one user. This has happened anyway (as with the MegaUpload case). Likewise, some bloggers have had to fend of copyright trolls (like Righhaven) for copying news stories and photos from some smaller newspapers which joined in the litigation. I don’t do this myself. Frivolous trademark claims against domain names have sometimes been a problem, when they involve common words or come from unrelated business areas (in contradiction to actual trademark law in the US). YouTube (Google) does have some pre-screening automation that copyright owners can join and use, called Content-ID, and this seems to be an evolving product creating some controversy on its own.
Coming back to my “It’s free” paradigm, there is also the issue of what I would call amateurism and “gratuitous speech”, which is soap-box activity (like mine) outside the area of more usual narrow-issue speech from political pressure groups, and from established media. YouTube used to encourage this process with the slogan “Broadcast yourself!” I argue, that as a member of the “Fifth Estate” moving toward the “Fourth” (rather like Clive Barker’s “Dominions”) I claim that the value of my gratuitous speech is that it “connects the dots”. But companies could find it much less profitable in the future to provide the platforms for free stuff, as people put up “do not track” and ad blockers.
I could also reinforce the concerns about insurance in the future. If health insurance is mandatory, I can imagine pseudo-progressive arguments that media perils ought to be required too (because user-generated content comes with some collective risk, given all the benefits on keeping the powers that be –and the Fourth Estate — honest). Auto and home casualty insurance companies should be very careful about packaging coverage for Internet use (including identity theft as well as liability) with protection from losses due to conventional accidents, crimes, and tornadoes or hurricanes. The actuarial risk (especially of frivolous, SLAPP or troll-sourced litigation) is not possible to calculate, and yet auto companies already bundle all of this in high-end umbrella coverage, which could cause unintended consequences (and anti-selection, and then cancellations) down the road.
Indeed, gratuitous “self-broadcast” could come under fire, if looked at differently for “secondary risks”, as I fear could happen if Donald Trump is elected. Remember, Trump last fall suggested shutting down parts of the Internet (related to user generated content) if companies couldn’t get a handle on the terror recruiting, which he can argue is an existential threat that doesn’t need gratuitous invitation. (Trump has wanted to lower the bar to allow public figures to sue media companies and presumably bloggers with lower standards of malice.) Possibly, I could attract enemies and indirectly put others in danger of targeting, which I could imagine could even be an issue for future landlords, for example. It’s part of a style of tribal thinking that I have had to pay more heed to in recent years. But any activity that interacts with the public has its own risks (like, say, selling life insurance or tax planning, something I have fielded unsolicited appeals to do instead). There are philosophical questions, about helping others directly and getting meaning in doing so. But I can’t let others use my own life as a bargaining chip.
(Published Monday, May 30, 2016 at 1 PM EDT)