Smashwords Censorship: Unintended Consequences

Smashwords distributes eBooks created by self publishing authors to the various proprietary eBook platforms.

Recently PayPal has told Smashwords that it must:

“..remove fiction that contains themes of bestiality, rape and incest”

— Smashwords Member Alert – March 5, 2012

Is censorship ever advisable?

Ratings systems have long proved an effective method for preventing people from stumbling on material that they would find offensive. I grew up in a small rural community with a very strong religious presence. Still, our local video store had a back room where those so inclined could access material that might otherwise offend. There were also adult magazines nestled on the top shelves at the back of magazine racks in local variety stores. I know that because I clerked in such a store in high school, and I remember my profound shock the first time an Old Order Mennonite man arrived at the store in a horse drawn buggy and proceeded to purchase the latest issue of “Hustler.” But although I am quite sure that the elders of his church would not have been pleased, in a free society, adults must be accorded the right to choose for themselves.

Else we’ll certainly end up in a world very much like the one George Orwell tried to warn us against.

Although not classed as erotica, my own debut novel, Inconstant Moon, actually deals pretty prominently with the crime of rape.  If I hadn’t already taken it off Smashwords myself (because I will not deal with PayPal) it could very easily have been one of the titles censored.

TechDirt considers that Paypal is just following orders Paypal Pressured To Play Morality Cop And Forces Smashwords To Censor Authors, while the Electronic Frontier Foundation is planning a legal challenge.

But in an email to Smashwords authors, founder Mark Corker indicates he is negotiating with PayPal, and although

“Many Smashwords authors have suggested we find a different payment processor. That’s not a good long term solution, because if credit card companies are behind this, they’ll eventually force crackdowns elsewhere. PayPal works well for us. In addition to running all credit card processing at the Smashwords.com store, PayPal is how we pay all our authors outside the U.S. My conversations with PayPal are ongoing and have been productive, yet I have no illusion that the road ahead will be simple, or that the outcome will be favorable.”

— Mark Corker,  Smashwords Author/Publisher Update – March 2, 2012

So  readers and writers have been duly warned that Smashwords will cave to PayPal demands rather than switch payment providers should negotiations fail.   That’s a business decision, and Smashwords can legally make it, but make no mistake: PayPal will not be the entity censoring eBooks, that task will fall to Smashwords.

Unintended Consequences

Smashwords is an internet company operating in the United States, and as such is subject to the DMCA.

Under the DMCA, You Tube is not liable for copyright infringing material that users upload, because YouTube doesn’t create the videos, it simply distributes them online. So much material is uploaded to YouTube, the cost of YouTube having to police the content of its users would instantly put YouTube out of business. Thus the DMCA allows Internet companies like YouTube an exemption from responsibility for the content they distribute, because these companies can’t reasonably assess such content for legal infractions.

The DMCA defines such a distributor as a “safe haven” so long as it complies with the DMCA.   So YouTube only takes down material when it receives a specific DMCA take down notice.

Smashwords relies on its automated processes to do what it does, and so far, no human has had to go through and vet every submission. But by accepting this PayPal censorship directive, Smashwords would assume responsibility for the content of the books it distributes.

Seems to me, the unintended consequence of a Smashwords decision to censor the books it distributes would remove the “safe haven status” Smashwords enjoys under the DMCA. Which would mean that Smashwords will have no choice but to police every title it distributes, or else be legally liable for any alleged copyright infringements.