More recently, some discussion has cropped up about whether bloggers are running illegal website contests, and so I thought it would be timely to post my RWR article. It doesn’t address the complaints of rigged giveaways–honestly, I thought it went without saying that if you say you’re going to give a prize to one randomly drawn commenter, you have to freaking give the prize to a random commenter! But the article does talk about the contours of the law. A little.

Be advised that it’s an attempt to be light-hearted, that it was written for an audience of romance writers–and that it was more tailored to address specific circumstances than it was to provide a full and complete background of the law of contests.

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You’ve seen this situation a thousand times before.  Author Jane Promoter, eager to start some online buzz about her novel, announces an exciting contest on her website:  Buy her book, send her the receipt, and you’ll be entered into a drawing to win a box of chocolates.

Jane knows that the release of a book is a make-or-break event, and she’s determined to make it in the world of publishing.  A contest is a good idea . . . or it would be, except that by virtue of her little promotional contest, featuring a $20 box of chocolates, she’s now guilty of a misdemeanor offense in California, New Mexico, Rhode Island, and a multitude of other states, punishable by up to two years in prison.

Website contests are wonderful promotional tools. They have been used as wonderful promotional tools ever since the first Australopithecus advertised her skill in making flints by painting on cave walls.  But because contests are so effective at drawing people in, they have been regulated ever since the second Australopithecus came up with a scheme that conveniently required every entrant to give him the carcass of a woolly mammoth.

Since the time of the Australopithecines, there has been a bit of modernization on the contest front.  We have access to fire, paper, printing presses that utilize movable type, and the Internet.  Sadly, law enforcement officials have access to these same things, too, and they’re tasked with the difficult job of enforcing the law.

What this article covers

If you’ve ever read the fine print for contests run by major corporations, you’ll notice that the contest rules contain exceptions and clauses stating “void where prohibited” and “cannot be redeemed in Azerbaijan” and “no cash value.”  This is because a contest, even one that is situated in one state, must abide by the rules and regulations of every state, territory, or country in which participants are solicited.  The law of contests and raffles fills entire treatises.

Not only is the law on this subject voluminous, the law changes.  Legislatures rewrite portions, especially as it applies to the internet.  There is only way you can be 100% certain that your website contest is completely kosher, and it is to hire a good lawyer, who will survey the law in existence at the time of your contest, and who will examine the specific facts of your situation.

Needless to say, if all you want to do is give away copies of your book on the Internet, the prospect of hiring a lawyer to perform hours of legal research is probably outside your budget.

This article discusses the black areas and the gray areas in contests.  It tells you the one contest you (or your RWA chapter) should absolutely never run (hint: it’s a raffle), and the contest you should probably never have (hint: you require people to purchase your book).  It provides a few useful guidelines for your website contest.

What this article can’t do is provide you with absolute certainty that you are operating within the bounds of the law.  For that, you need a lawyer.

A note about jurisdiction

When discussing website contests, you might wonder, “Why do I care about the laws of all 50 states?”
The answer to that is called, in legal terminology, long-arm jurisdiction.  As a general rule, if you rob a bank in Montana, the state of Rhode Island cannot prosecute you for it.  That’s because Rhode Island only has the power to protect against activities that happen within its boundaries.  Legally, one would say that Rhode Island lacked jurisdiction.

You might imagine that in order for a state to have jurisdiction over a person, you would need to live in the state.  But suppose you live in Montana, and you hack into a bank in Rhode Island.  Even though you were situated in Montana, the act you took had an immediate, obvious, and foreseeable effect in Rhode Island, and Rhode Island can assuredly prosecute you.  It is not always easy to tell when your activities open you up to a state’s jurisdiction; the Supreme Court has stated that a state may have jurisdiction over you based on a test that balances “the quality and nature of the activity in relation to the fair and orderly administration of the laws.”  In other words, you can be prosecuted by a state so long as you have “minimum contacts” with that state.

How does this apply to website contests?  Many states have what are known as general long-arm statutes.  Long-arm statutes are exactly what they sound like: they are statutes that reach a long arm outside of the state, and provide that people who violate the laws of the state, and have the “minimum contacts” required by law, can be subjected to the laws of the state.

How does it matter? If you hold a contest in Montana, and you forward the announcement to a chapter in Alabama, you are effectively soliciting entries from Alabama.  Now, Alabama does not just prohibit gambling; it also prohibits promotion of gambling, which includes advertising and profiting from gambling.

Alabama not only has a general long-arm statute; its laws state: “It is no defense . . . that the lottery itself is drawn or conducted outside Alabama and is not in violation of the laws of the jurisdiction in which it is drawn or conducted.”  In other words, if you run a lottery, and you solicit entries from Alabama, you might be in violation of the laws of Alabama—and they reserve the right to come after you.

The precise boundaries of personal jurisdiction, in the days of the World Wide Web, are still up for debate.  The Supreme Court is still shaping the doctrines at issue here, and states (and other countries) themselves are experimenting with enforcement of laws that apply to entities outside their territory.
If you want to become a test case for the exciting litigation in this area, you should feel free to experiment.  If you do so, you might someday have the enthralling prospect of paying for an attorney to represent you in front of the Supreme Court.  Law students everywhere will curse your name as they struggle to understand the implications of the precedent you set.

If shelling out hundreds of thousands of dollars in attorneys’ fees doesn’t sound like fun, this article is for you.

The Black Area

While the law of contests varies substantially from state to state, there is one thing that even a cursory examination of the law reveals: Raffles and lotteries are highly regulated, and mostly banned.  You should probably not run one unless you have consulted a lawyer in depth, and my best guess is you should not run one at all.

Raffles or lotteries are games where someone sells tickets for money or something else of value, in exchange for a prize that is distributed by chance.  It does not matter if that chance is a random drawing or a game of Bingo or the culmination of a vingt-et-un tournament.  If you are collecting money and offering a prize that is distributed based on chance rather than skill, you are running a raffle or a lottery. These activities are regulated because they are a form of gambling: They entice people to give up money in exchange for a chance to win.

When raffles or lotteries are conducted online by RWA members, they are for a good cause.  The beneficiary of such a contest is an RWA chapter, or an author who has fallen on hard times due to unforeseen medical bills.  You might think it is okay to hold a raffle if it is for a good cause.
In a few states, you might be right.  In the rest of them?  Not so much.

Every state has specific rules about what counts as a “good cause.” In just about every state, the only private organizations that are allowed to apply are registered nonprofits.

An individual simply cannot raise money for a friend via a raffle.  That is illegal in just about every state, almost certainly including the one you live in.

Even if you are affiliated with a registered nonprofit (for instance, RWA chapters are nonprofit organizations), the requirements for running a raffle are usually quite stringent.  For instance, California states: “An eligible organization may not conduct a raffle authorized under this section, unless it registers annually with the department of Justice.”  Furthermore, California also states that “[i]n no event shall
funds raised by raffles conducted pursuant to this section be used to fund any beneficial, charitable, or other purpose outside of California.”  New Mexico requires raffle-holders to obtain a license from the state and to pay a tax on three percent of the proceeds. It will only license an organization “which has been in existence in New Mexico continuously for a period of three years immediately.”

These are the laws of just two states, and I think if you put them together, you’ll see why online lotteries are such a conundrum.  A lottery is only legal in California if the funds raised do not benefit a purpose “outside of California.”  New Mexico only license organizations which have existed in New Mexico continuously for three years.

As far as I can tell, the only way that an RWA chapter could meet both these requirements with an Internet lottery would be if the New Mexico chapter of RWA held a lottery to benefit California romance writers.  All you need to do is add in one more state and you’ll see that it is simply impossible to run a nationwide raffle that satisfies all state laws.

This means, if you are running a raffle over the Internet, and soliciting entries from chapters throughout the United States, your raffle is very likely illegal.

There may be ways to legally run an internet raffle.  But if your organization hasn’t talked to a lawyer who is familiar with the hazardous law of lotteries, it is almost a given that your raffle is illegal.  If you or your RWA chapter are raising thousands of dollars on a raffle conducted on the Internet, you need to stop reading this article and start talking to a lawyer.

The Gray Area

You’ve probably seen a thousand commercials for contests run by corporations, in which the announcer at the end states that “no purchase is necessary.”  Most states require that contests allow all members of the public to enter, even if they have not made a purchase.

If you hold a contest in which the method of entry is to provide a receipt for a book that the person has purchased, you have entered a gray area.

You can probably stay legal by providing an alternate form of entry—one that does not require a purchase—but if you do, you must make sure that you state the alternate form of entry clearly and plainly, so that anyone who learns of your contest can find out about it, and can enter as easily via the free method as they would be able to enter if making a purchase.

If people can e-mail you a receipt from Amazon to show they purchased your book, you must allow them to e-mail you a free ticket to enter.  You almost certainly cannot allow e-mailed entries of receipts, but require that free entries be sent via US Postal mail.

Contests that require receipts for entry (even if you have an alternate method for entering) are gray areas.  They are not safe.  If you have any doubt about a website contest that requires a receipt for entry—and if you are running such a contest, you should likely entertain such doubts—you should either consult a lawyer or change your contest.

Areas that are probably white

If you do not require people to give up money for a chance or to make a purchase, your website contest is… I hesitate to use the word “legal,” but it is probably not going to be subject to scrutiny.

Here’s the unfortunate truth: If you live in Rhode Island, and you are giving away a book from your backlist, your prize is worth perhaps $6.99 (unless you look at the used price on Amazon, in which case the value is more like $0.02).  Even if your contest violated New Jersey law, how likely is it that a prosecutor from New Jersey will care about your illegal contest?

For the same reason that prosecutors would (usually) not go after a group of friends betting on the outcome of a sports event, even if that conduct constituted illegal gambling, they are unlikely to pursue your website contest.  Let us face it—New Jersey has more hardened criminals to deal with than renegade authors who willfully give books away to fans on the Internet.

I care profoundly about legal ethics and the rule of law, and so even if your $6.99 giveaway will never be subject to state scrutiny, I must say that you should never, ever break the law, not even a little.  No, you may not even jay walk across the street to buy my book (but if by chance you do, please buy two).

Unfortunately, given the frequent changes in the law, the accessibility of website contests around the world, and my inability to speak languages other than English well enough to decode worldwide laws, I can’t tell you for sure how to create a website contest that abides by all laws.

But there are a few things that I found in common.  If you want to be really, really safe, here are a few things you can do to increase your sense of security:

1. Limit participation to US Residents.  The laws of other countries are too diverse and too different from the United States, and there is simply no way to make sure that you are interacting with jurisdictions that allow your contest.

Many contests run by corporations deal with this problem by use of the following fine print:  “Void where prohibited.”  It’s a good idea, and one you might consider adopting, but it also means that you need to know where your contest is prohibited, so that if a person from Thailand is drawn as the winner to your contest, you’ll need to find out if she’s allowed to enter.
2. Provide the odds of winning.  Many states require that you clearly state the odds of winning.  If you are awarding a prize to every 20th commenter on your blog, you would need to state: “The odds of winning are 5%.”  If you are giving away one copy of your book to a blog commenter, state “The odds of winning depend upon the number of participants.”
3. State what the prize is up front. Don’t say, “It’s a very good prize” or “it’s a surprise grab bag of really cool things.”  Do say, “The prize is a copy of Proof by Seduction, my latest release” or “You can win a $25 gift certificate to your choice of Borders or Barnes and Noble.”
4. Don’t make it onerous to enter. If you state that valid entries must send you the name of the French maid employed by the Duchess of Whatsit (material that only appears in chapter 21), you could fall in to the gray area above, because you might be (indirectly) requiring a purchase of your book.  True, a person might be able to find the answer by borrowing the book from the library.  But you’ve now made it much, much easier for someone who owns the book to answer the question than someone who doesn’t, and that could run afoul of state laws requiring that non-purchasers be able to enter the contest as easily as purchasers.  Do ask readers to find the answer to your question in an excerpt provided on your site.

None of these things can guarantee that your contest entry will be legal—only a lawyer can do that.  But if you follow these guidelines, and make a good-faith effort to adhere to the laws, chances are that you will be safe.

This is particularly true when it comes to legal matters. That’s why I post about the First Amendment, the Google Book Settlement, and the legality of text to speech on Amazon’s Kindle. It’s also why I post about annulment and debtor’s prison. Even if I think I know something cold, I don’t post anything legal without checking and double-checking the law first–even if I am posting a one-off comment on Dear Author.

While people may not always agree with my legal analysis, I want them to trust that I can back up what I say with solid, intelligent arguments. I want you to be able to trust that when I comment on Dear Author historical first pages saying, “this is legally possible” or “this is legally not possible,” that I’ve thought it out and looked it up and can provide pages of citation, if necessary. In fact, I will often provide them before I’m asked.

I don’t say anything about legalities without checking that I am right, and for good reason. My reputation on this question really, really matters to me–both because of what I say online, and because I write books that sometimes have legally intricate subplots.

At its heart, Unveiled, my upcoming February release, is about the interaction between two families: the Dalrymples, the children of the current Duke of Parford. They were declared bastards when the marriage that produced them was found to be bigamous. Then there’s the Turners, distant cousins who stand to inherit when the duke dies.

The Dalrymples aren’t taking this lying down, though: they’ve asked Parliament to legitimize them and restore their inheritance. This pending bill is a big part of what pits Ash Turner, my hero, against Margaret Dalrymple, the heroine.

I’ll stake my reputation as an author on the validity of that legal arrangement: the bastardization, and the ability of Parliament to legitimize bastards and restore their inheritance.

The correct statement of the law on legitimized bastards is this:

Where a person is admittedly a bastard by birth, there is no way, generally speaking, in which he can be made legitimate, except by Act of Parliament.

The Laws of England.

That exception–that you can become legitimate and inherit by Act of Parliament–is what Unveiled depends on. The disinherited Dalrymples are not seeking legitimation through ecclesiastical decree. They’re not relying on some technicality in canon law. They’re going directly to Parliament and saying, “We will not be able to inherit unless you pass a law that says we can.”

I know Parliament can do this for two reasons. First, and most generally, the doctrine of parliamentary sovereignty says that Parliament can make or unmake any law it wishes. The only thing it can’t do is bind future Parliaments. So if there’s a law that says that bastards can’t inherit, Parliament can undo that law.

Second, we know that this can happen specifically because bastard children have in fact inherited by Act of Parliament. For instance, Parliament legitimized the children of John of Gaunt, Duke of Lancester, allowing them to inherit from their father everything except the possibility of succession to the throne. Parliament also legitimized the children of Sir Ralph Sadler, whose wife was a bigamist (she believed her first husband was dead), and stated that their children “shall att all tymes hereafter for ever be had, reputed, taken, esteemed and adjudged legitimate and lawful children begotten of the body of ye said Ralph Sadler, and shall be inheritable as well to the same Ralph Sadler…to all intents, constructions, and purposes, as they hadde been ingendered, begotten, and borne, in lawful, perfect, and indissolvable matrimony.” You can read the entire text of that Act here.

I modeled the putative Act of Legitimation in Unveiled after the real-life Act passed for the benefit of Ralph Sadler’s children.

For a more comprehensive discussion, footnote (g) on this page of The Laws of England collects cases of legitimation by Act of Parliament, including a discussion on the particularities of inheriting through such legitimation.

So if you are wondering, for any reason, whether the arrangement in Unveiled is valid…it is. I research these things very thoroughly. If you ever have questions about the validity of any of the legalities I mention in my book, please e-mail me and I will be delighted to share with you the reams of research on the subject. And, lesson learned: next time, include an author’s note. Just in case.

I’m not allowing comments to this entry, not because I want to squelch discussion, but because I don’t want to tempt myself to say any more than I have.

That tells you that this is a more passive-aggressive post than it really should be–and I wouldn’t have said any of this if I didn’t think that this reflected not only on Unveiled itself, but on the character and reputation that I have painstakingly tried to establish.

I suppose the question of annulment for non-consummation is up for debate, in the same way that the question of whether cats are reptiles is up for debate: you can have lengthy discussions about things that are questions of fact, and people can, in fact, disagree. But this isn’t a disagreement about whether vanilla ice cream is better than chocolate ice cream. It’s a disagreement where one person is right, and the other is wrong.

So, let’s settle this debate once and for all.

Nonconsummation, in and of itself, was never grounds for annulment. It was, however, a necessary (but not sufficient) component of seeking an annulment on grounds of impotence. And, here’s the kicker–today, when we think of “impotence,” we tend to think of it as a strictly medical condition that deals with the question of whether the man is capable of getting it up and using it, but what was meant by impotence back then doesn’t track modern meaning. A few things to consider:

• A man was not considered impotent, for purposes of annulling a marriage, if he could get it up and use it, even if he was unable to get to his happy ending.
• You could be considered impotent with respect to a spouse even if you were capable of having intercourse with others.
• A woman could be considered impotent if she had a violent hysterical reaction every time her husband tried to have sex with her, so that the only way to proceed would be to use physical force. But mere resistance (or, as they so lovingly called it back then, “frigidity”) on the part of the woman is not enough: it has to be an involuntary response.

So how does this play out? If you want to get an annulment on grounds of impotence, you are going to have to prove that you are impotent. You can do this a couple of ways. First, you can submit to medical evaluation. But remember that you can claim that are impotent with respect to a particular spouse–how on earth would you prove that to a doctor?

Well, this is where nonconsummation finally becomes an interesting question. Up until this point, nonconsummation would have been proof that the parties in question were not impotent. But the rule was that if the medical evidence was inconclusive, the courts would require the spouses to cohabit for three years. If they were able to do so without consummating the marriage, the court would presume that the couple was incapable of having sex, and they would annul it.

So nonconsummation, in and of itself, can be a grounds for annulling a marriage. But it has to be nonconsummation for three years of cohabitation–something that no romance couple has ever managed to accomplish.

The clearly readable A Handbook of Husband and Wife lays all this out, including a discussion on how these rules would vary in Scotland. For those who might get annoyed that this is technically a book about Scottish law (even though the author talks about England and Scotland), the same rule is discussed (in less clear terms) in A Practical Treatise on the Law of Marriage and Divorce, which is all about England.

So you want a marriage to be annulled for impotence? You need to live together for three years. And not just be married for three years, but generally live in the same place.

One of those pet peeves looks like this: “A married woman was the property of her husband.” Or sometimes, even more explicitly, “a woman was her husband’s chattel.”

My problem with this is that it’s not true. No one educated in the Regency or Victorian period would have claimed that a woman was her husband’s property. And, in fact, if you read Mary Wollstonecraft’s “Vindication of the Rights of Women,” she does an admirable job of listing many of the problems with a woman’s place in the world, but she never once claims that women were a husband’s property.

The notion that women back then were like property is actually (a) either fairly modern; or (b) based on misapprehensions that were not mirrored in law, and were, in fact, punishable if acted upon.

For instance, there were some people back then who believed they could sell their wives. These people were wrong and ignorant; they could not. Some people today believe that the payment of income tax is voluntary. Those people are wrong, too. (In point of fact, if you go to that site, there’s a $300,000 challenge that they offer: identify the law that says you have to pay income taxes, and we’ll give you $300,000! I’m guessing that they somehow missed 26 U.S.C. § 1, and I would like my $300,000, thank you.) To give the wife-sellers’ views legal credence is like looking back on the U.S. 200 years from now and saying, “Gosh, it’s amazing that all those people voluntarily paid income tax.”

So let’s go to the first point: that the notion that a woman was property is a modern gloss on the actual situation. A wife was never considered a husband’s chattel. There are things you can do with chattels that you could never do to a wife. For instance, you can give chattels away. You can destroy them. You can sell them. On the other hand, if a man in Victorian England walks away from his wife, she has the right to go to an inn and order food…and he will be stuck with the bill. Even if he has not seen his wife for years, she can send bills for her necessary expenses to her husband, and if those expenses are necessary to her station in life, he will have to pay them. Likewise, it would have been illegal to dispose of his wife. She wasn’t alienable.

This is not to say that women’s place in society was equal to the man’s. The true relationship between husband and wife was actually closer to feudal lord and vassal. The husband was in charge of his wife, and was her legal face to the rest of the world. In some ways, this shielded the wife from many of her decisions; if she spent rashly, her husband would have to take the heat. In other ways, this left her with little recourse; she couldn’t sue her husband if he failed to pay her pin-money agreed upon (although she could sue his estate for the value of the money if he eventually died), and he had the right to control where she lived and to some extent, how. I wouldn’t have wanted to live in those times, and I’m thankful I did not.

But however inequitable the situation was, and it was awful, wives in Victorian England were not considered property–not by anyone except a handful of very ignorant, uneducated people. The notion that women were a husband’s property is actually quite modern–and it’s very much a function of our modern view of property as a set of rights.

Some examples:

• I got to hold–hold and handle–the rolls containing the oaths of office of all city officials. I wanted to see what form the oaths took. These were 200 year old pieces of parchment. Yes, actual parchment, not paper. It was amazing.
• There was a massive book containing nothing except parking tickets circa the 1840s, which, while printed on thick paper, gave me a wave of nostalgia for present times: Dear John Sheppy, you left your wagon in the street for two hours, and caused an obstruction; appear at the Council House and pay a fine of up to 40 shillings.
• There was the book of informations laid in the Petty Sessions. Petty Sessions deal with small crimes. You know the type; hitting your wife, assaulting a constable, stealing pigeons, running away from apprenticeships and the like. Out of around 800 informations laid in the book I looked at, 4 were dismissed; the others were convicted. The punishments were usually either the paying of a fine and/or imprisonment; the normal term was about 7 days, but they went up to 6 weeks hard labor (that one was for exposing ones person), and were as low as a fine of 5 shillings for being drunk in public. Of the four instances where charges were dismissed, two of the defendants had obvious indications of wealth: One had hired a lawyer (there was a cross examination listed in the book), and the other made note in talking of his defense that he had “his gig waiting” during the supposed assault on the constable. Of the other one, one was accused of animal cruelty, and the other of breaking a window. For that last one, the court clerk, clearly knowing what to expect, had already written “convicted” on the line, and had to cross it out.See? That first line–C-squiggle-squiggle-loop–is the law hand abbreviation for “convicted.” I saw a lot of those. If you squint, you can read the line just above it, which shows his defense (or, as they spelled it, defence): “It was accidentally done.”
• While we’re at it, I’ve always known that the Oxford English Dictionary, which gives the first use found in print, for various phrases is off, particularly for slang. That’s because most words are used in speech long before they are used in printed publications. This is particularly true for words that would have been considered obscene at the time: it would have been illegal to print them.But my margin so far has been around 10 years, maybe 15, depending on the word in question. I’m going to have to rethink that. The phrase in question is “bloody hell,” and the OED attests it first from 1886. But here we are in 1838, and the constable claims he’s been told to go to bloody hell. Now, I note that this is not quite the same thing as using “Bloody hell!” as an exclamation. Nonetheless–all the bloody hell naysayers should take note.

  Incidentally, I liked this court reporter best. His handwriting was legible and not spidery, he wrote fast (meaning that we got much more story when he wrote, instead of a few lines), and he didn’t stint from using language like “bloody hell,” unlike the lame reporter in the beginning who started to write “exposing his naked parts” and then crossed off “naked parts” and substituted “person.” Once I figured out that “afs–” was his abbreviation for assault, we were all good. I imagine from his handwriting that this dude was cute. (I know. He was probably 75 and bald. Awww.)

  I’ve blurred out most of the document because the rest of the tale is pretty darned good–it’s obvious that the defendant knows how to tell a story, and who knows? I might end up using this in some altered form!

• There was much, much more. But this was seriously awesome.

Step One. Identify the believable threat the person has employed.

The threat has to be believable–that is, hyperbole (“I’m so mad, I could flamebroil you!”) and idiocy (“My brother’s dog’s girlfriend’s cousin’s lawyer is the county prosecutor, and he’s gonna throw you in jail!”) don’t count.

Step Two. Ask yourself, how bad is this threat?

“If you do not admit that Stephen Colbert is the best presidential candidate, I will have you executed by the government.”
“If you don’t stop arguing with me, I will throw you in jail for five years.”
“If you don’t stop criticizing my company, I will sue you for $400,000.”

Yup. These threats, if believable, are bad. They would have chilling effects. They have real power behind them. You need a non-quick guide to the first amendment, and you need it fast!

“If you don’t stop arguing with me, I will not read your next book.”
“If you do not admit that Stephen Colbert is the best presidential candidate, I will taunt you a second time.”
“If you don’t stop criticizing my company, I will compare you to a Nazi.”

These threats are threats to do precisely what someone has the right to do in the first place. In other words, suck it up.

Those who know about law will recognize that I have sailed right over basically every legal question, like the tricky question of state action, and any actual standards for recognizing categories of protected and unprotected speech. But those who know the law also realize, through repeated application of palm to face, that 98.6% of Internet free speech “violations” are, in fact, of the “taunt you a second time” variety, and so despite the lack of connection to case law, this is a pretty good test.

—–

* The only thing more confusing than some of the free speech doctrines (one part of the first amendment) are establishment clause doctrines (another bit). Luckily, the establishment clause is so confusing that random people on the Internet can’t figure out how to accuse each other of violating it, and so no quick guide is necessary.

So let me tell you what I mean by this.  I’m going to start with a person who doesn’t exist—at least, she doesn’t exist precisely as I describe her.

But imagine there’s an anonymous book blogger who calls herself Ms. Revels.  Ms. Revels reviews young adult books with a mission: She wants to highlight books that are fun and entertaining for young adults, while still being clean enough for the parents.  Ms. Revels’ reviews range the gamut.  She glows about Ally Carter’s DON’T JUDGE A GIRL BY HER COVER, because of its proactive, positive message.  She completely trashes Suzanne Collins’s THE HUNGER GAMES because of its violence.  She gives a so-so to Scott Westerfeld’s UGLIES, because while it is violent and scary, she thinks the message about being comfortable with your own body is important for teenagers to hear.

Ms. Revels, however, has a secret.  She is also a young adult author.  She does not review her own books; she considers that ethically suspect (and she is trying not to be suspect).  But she receives regular checks from Simon & Schuster and Random House (she has written for both over time), is friendly with editors from all the major houses, and as a fairly prominent author herself, she regularly receives ARCs and manuscript copies for her blurb (or, just in case she reads it and maybe likes it).  The vast majority of her reviews come from these free copies.

Ms. Revels has not disclosed that on her site. She has not done it for one very simple reason: She has lambasted books that her own editor worked on.  She has called “dangerous” books that people who are her friends have written.

She does so, because she firmly believes that teens should be taught that “clean” activities can be fun.  Now, you may not agree with Ms. Revels’s philosophy.  You may not like her. But that’s the burden of the First Amendment: we let people speak, even if we think what they are saying is a load of crock.

The requirement of disclosure would sink Ms. Revels. In order to meet the FTC’s disclosure requirements, she would have to issue a statement that she had written books for Simon & Schuster and Random House, and that she receives ARCs from all major houses. And that disclosure would be tantamount to a revelation of identity, because there aren’t many people who would fit that bill.

There is some value to the consumer in having that information about Ms. Revels.  But Ms. Revels’s speech is entirely burdened by the FTC’s disclosure requirements: She must either provide information that divulges her identity, or quit speaking altogether.

For people outside the U.S., it’s hard to understand why anonymous/pseudonymous speech is given such a privileged place in our system of laws.  It is, however, a large part of our culture.  A major event in the Revolutionary war involved anonymous persons dumping tea in Boston Harbor.  Advocates for the Constitution wrote “the Federalist Papers” under the pseudonym “Publius.”  In more recent history, the Supreme Court held in 1958 that members of the NAACP had a First Amendment right to keep its membership rolls private, because members of the NAACP, if disclosed, might be subjected to abuse, ranging from lynching to burning crosses.

Under the First Amendment, we protect people who voice unpopular opinions from disclosing their identity.  We think the opinions they have to share are more important than the value the public gets from the disclosure. And it is this that makes me quail from the FTC guidelines:  The disclosure the FTC seeks, in some cases, requires a person to leave a trail of informational breadcrumbs leading to her identity, as a precondition for engaging in speech that is both politically and culturally valuable.

Let me give a somewhat less abstract example:  Moonrat.

Moonrat talks about books on her blog.  She is in publishing, so presumably, she gets many of these books for free.  More importantly, if she ever discussed a book produced by her house or one of its subsidiaries, she would have to disclose her interest, and that means she would have to disclose her house. If she discussed a book produced by a friend of hers, who bought her coffee, she would have to disclose that.  And that means, of course, that if she talked about books at all, she would have to divulge information that would make her identity a foregone conclusion.

Moonrat is anonymous, and we all know why: Because if she were not, she would be deluged with people telling her to buy their novel. Also, her authors would tear their hair out, and people would take all her rejections personally. Moonrat nonetheless provides a very valuable service, and I would be sorry to see her go away, or to discover that Moonrat might not be able to talk about books.

The book publishing industry is small, intimate, and interconnected.  Sometimes, the only way for insiders to speak harsh truths about books is under the veil of pseudonymity.

Yeah, piracy sucks.  And like I said, pirates are assholes.  But . . . if I live the average life expectancy, I will get eleventy-one more years of copyright protection for my book.  So heftier protections–a larger scope of copyright protection, or a longer term of copyright–is not really going to help with the main problem.  Pirates exist because people are assholes.  If people are assholes, in violation of the law, it’s hard to come up with a law that stops them from being assholes.  Not unless you want to go way draconian, and writing books and publishing should be fun, not a second invention of the Spanish inquisition.

We don’t need stronger copyright laws.  We need stronger social norms against being an asshole–and that means that you can’t go grabbing everything you can get.

Let’s go back to my playground analogy.  People are more likely to respect your claim to have a soccer ball at recess if your claim is reasonable: say, for ten minutes, or for half of recess, or maybe if you are playing with a large group, for all of recess.  But if you say, “Anyone who gets the soccer ball gets it for a month,” the social norm of respecting the first possessor of the ball as the putative owner for some duration is going to fade real fast.

If you don’t want people to be assholes, you shouldn’t be an asshole yourself.  And I think that pushing for more and more copyright protection–long past the point of commercial value for 99% of the copyrights out there–is a purely asshole move.  Don’t want people to be assholes?  Don’t be an asshole yourself.

And so I see copyright as a way to help authors make enough money so that they can write a little bit more (or, um, promote her book so that anyone reads it at all).  It’s not a moral thing; it’s a manners thing.  (Not plagiarism, though–plagiarism and copyright infringement are distinct, and plagiarism is morally abhorrent.)

I’m not sure this makes any sense, but I see copyright as kind of my bargain with society:  You guys recognize that I did something cool, and when I’m done with my toys over here, I’ll pack them up in a nice box and let everyone else play with them.  That’s it.  Copyright infringement, in my mind, is like taking a soccer ball from someone else on the playground–if someone else took possession of the ball first, they should get to use it first that recess.  Taking the ball away from someone who claimed it first is a complete asshole move–but it’s not the same thing as stealing.  It’s just being an asshole.

Copyright, like a soccer ball at recess, has a time limit.

I recognize that this is a minority view.

I have some very strong views on copyright.  Or, to put it differently:  I have very strong views on the strength of copyright.  I think, among other things, that the term of copyright granted in our society is way too long.  I think, among other things, that fan fiction should be unambiguously allowed.  If I had my way, I’d set the term of copyright to the term of patents, or at most twice that:  twenty to forty years, max.  Possibly twenty years with an additional twenty year automatic extension, which must be applied for with a tiny (say $10) processing fee.

That is never, ever going to happen, so I think that the second-best thing is to contract around onerous copyright rules, e.g., through a Creative Commons license.

But I did just happen to sign a contract that gives HQN the rights to my copyright so long as my book remains in print, for the natural length of copyright.  I feel . . . very ambiguous about this.  I feel that it would be wrong–really wrong, and because I feel so strongly about copyright length, for me, downright morally hazardous–if one of my descendants were still making royalties off my book in a century.  And however much I still want my book to be on sale then (I know, dream on), it bothers me.

Ultimately, I had no problem signing the contract simply because I don’t think my book will be in print in 100 years, and my rights will revert to me, and I’ll probably release it into the public domain long before then, either by bequest or during my life–because once my book has lived out its time of commercial viability, I feel I have an obligation to release it into the public domain, even if technically the copyright has many decades to go.

What do you think of all this?  If you’re an author, do you feel like you have any interest at all in what happens to your books 100 years from now?  Does it bother you to think you can hold on to a piece of culture for a full century?