Journalist David Aaronovitch has a full page opinion article in The Times today, which I can’t link to as it isn’t openly available online, in which he complains that “There’s nothing noble in this Wiki blackout”. Although the article is ostensibly about the decision by Wikipedia to join the anti-SOPA blackout, which he calls “self serving and arbitrary”, reading the article in full it’s clear that his main objection to Wikipedia’s action is because he shares the objectives of SOPA.

To begin with, Aaronovitch sums up Jimmy Wales’ opposition to SOPA as being based on the3 “slippery slope” argument:

If corporations can sue providers for content placed by third parties, then a form of censorship or self-censorship will be constantly taking place. And the mechanisms for enforcing compliance could be expanded to include political content by authoritarians.

Now, it is true that one of the concerns about SOPA is that it does provide a platform for subsequent, more onerous restrictions. But that really isn’t the primary concern, and Aaronovitch is being disingenuous to present it as if it was. There are other, far more pressing issues, not least the fact that it would potentially make any website which includes user-generated content – especially commercial websites which sell paid subscriptions, such as that of The Times – liable to be blocked in the US if a user posts something which is perfectly legal in the UK but happens to be illegal, or even just an infringement of a commercial right, in the US. Then there’s also the problem that the mechanism for enforcing SOPA would actively work against protocols designed to make the Internet a safer place and minimise things such as fraud and phishing.

Aaronovitch does admit that

I am no expert on copyright law and it could be that SOPA and PIPA are as badly drafted as opponents claim

which is honest, at least, but surely his awareness of his ignorance should have given him pause for thought. He goes on to comment on a case a bit closer to home:

I was struck by the recent case of the Sheffield Hallam student Richard O’Dwyer, who is resisting extradition to the US and being treated as a geek-martyr. What he did was to set up a website from his student bedroom collecting links to sites where people could access copyrighted material free. For next to no investment of his own, and by encouraging the theft of other people’s intellectual property rights, O’Dwyer made nearly £150,000 in three years, which he spent on computer equipment (note to geeks, why didn’t he just steal it?) and racing his Mini Cooper. His defence, in essence, is that he merely made money from bringing the thief and the purchaser together. In common parlance, he’d be called a fence.

If I was Richard O’Dwyer, I’d almost be inclined to sue for Aaronovitch for libel, given the inaccuracy of that description. For a start, copyright infringement is not theft, and calling it theft betrays an ignorance of the law of theft as well as the law of copyright. And that, of course, is why O’Dwyer paid for his computer equipment, because he isn’t a thief. Nor were his customers, or the people who supplied them with content.

Obviously, there is a large body of belief that what O’Dwyer did was morally wrong. But in the only case of its kind to come before the UK courts so far, that of near-identical service TV-Links, a judge ruled that it was not in breach of UK law. David Aaronovitch may believe that it should be illegal, but the current state of the law in the UK is that it is not. So Richard O’Dwyer is facing extradition to the US for running a website based in the UK, aimed primarily at UK users, and hosted in The Netherlands, doing something which is perfectly legal in the UK and other EU countries.

There’s more to it, though. Aaronovitch goes on to lament that

[…]because this happens online and is now very common, many in my children’s generation can hardly be brought to see that there’s anything wrong with it.

He’s right, of course, that sharing digital content with family and friends is now widely considered to be acceptable. In fact, a recent survey in the US found that a majority of all ages – including not just those of Aaronovitch’s children, but those older than him and me – consider it acceptable. And here’s the real rub: We live in a democracy. In a landmark ruling in 1774 (yes, that long ago), the House of Lords issued a judgement that copyright is “a creature of statute” and has no basis in common law. This ruling has been the foundation of Intellectual Property law ever since, not just in the UK but in the US as well. And one of the key aspects of statute law is that it is whatever the government of the day decides it should be. If the respective governments of the US, the UK and the rest of the EU were to pass legislation tomorrow abolishing copyright, there would be no constitutional challenge, no appeal to the Supreme Court, no referral to the ECHR. In constitutional terms, it would be no different to abolishing stamp duty or increasing the speed limit on motorways to 80mph.

That’s not going to happen, of course, because majority opinion is still firmly in favour of the basic principles of copyright. But it isn’t firmly in favour of David Aaronovitch’s view of copyright. On the contrary, he and others like him (such as his employers at News International) are now in the minority. And, far from being “self-serving and arbitrary”, Wikipedia’s actions – and those of other participants – have helped demonstrate that to legislators, with predictable results.

The simple fact is that “Wicked Rupert” and “Big IP” (Aaronovitch’s words, not mine) have lost. Public opinion is already against them, legislation is turning against them. What Wikipedia did wasn’t pointless at all, it merely demonstrated where power is shifting to.

Incidentally, the image at the top of this article is taken from David Aaronovitch’s Twitter page. It’s pretty obviously a screenshot from the time when he was on University Challenge in 1975. That means that copyright in the image belongs to Granada Television, the makers of the programme. I can’t find anywhere, either on the Twitter page or Aaronovitch’s own website, where he acknowledges that copyright. I sincerely hope that he does actually have written permission from Granada to use that image, since it would be hugely embarrassing if he didn’t – that’s exactly the sort of thing that could get a site shut down under the provisions of SOPA. But then again, he is “no expert on copyright law”.