Comments over my last post show just how personal perceptions can color views of matters, especially of law. So… let’s talk about law. In general terms, criminal law is the codification of those offenses which society has termed unacceptable and which the governing authority has codified and promulgated, defining the offense and prescribing the penalties or range of penalties for violating that law. Law is not an “ideal”; it is a code. Nor does that code always agree with what many citizens feel it should be, or even what many people thinks its provisions mean. That’s one reason for courts, and why the U.S. Supreme Court has the power to review laws passed by Congress, or by state and local governments.
Initially, copyright infringement was strictly a matter of civil law, but copyright violations became so egregious in the late nineteenth century that in 1897 Congress enacted the first very narrow criminal penalties for copyright infringement, but in less than a decade it became clear that a more comprehensive approach was required, and the first broad law criminalizing a range of copyright infringements was enacted in 1909. Since then, various provisions have been added to criminal copyright law, including the No Electronic Theft (NET) act in 1997, and the Digital Millennium Copyright Act of 1998.
As is noted by most good property law scholars, “property” is not legally limited to tangible objects, but much of the controversy over copyright infringement or theft of intellectual property lies in the fact that the vast majority of people do not place the same emotional value on the copying of an ebook or a music download as they would on someone taking a physical copy of the same book or a music CD from a store without paying for it. Yet current law places the same value on theft of a digital book or an authorized digital copy of a song as of a physical book or music CD. And it should, because for the bookstore, the wholesaler, and the author, that “free” copy represents a very real loss. It is a foregone sale, just as the theft of a physical book or CD represents a foregone sale. Admittedly, in the case of the book, the physical book costs somewhat more to produce, but the bulk of the production costs do not lie in the printing and binding of even the physical book, and the ebook is priced lower because the physical costs have been deducted.
In the case involving Aaron Swartz, what seems to have been overlooked in many of these comments is the law itself. In 1997, Congress passed the No Electronic Theft (NET) act. Those provisions, as codified in 17 USC § 506 (2)(2000) provide criminal punishment for reproducing or distributing, “including by electronic means, “during any 180-day period, of one or more copies or phonorecords of 1 or more copyrighted works having a value of more than $1,000”. What is often overlooked or ignored is that while looking at or reading a copyrighted work electronically is not a violation, actually downloading a work is, under law, the reproduction of that work.
Like it or not, the physical facts in the case are not in dispute. Whether or not Aaron Swartz intended or did not intend to further distribute the more than four million articles he downloaded, it is absolutely clear that he electronically reproduced at least one copy of each of those articles and that those millions of articles had a sum total value of more than $1,000. He also did this under “guest” privileges used fraudulently, because, at the time, he was neither a student, nor did he register honestly when using the MIT system. Under the U.S. Code, that is against the law.
Whether the law is “right” or not is a totally separate question. If one wishes to live in a nation of laws, then there is the obligation to live by those laws, although, at least in the United States, there is certainly the possibility of changing that law. If one violates those laws, however, there is always the risk of being prosecuted. Aaron Swartz did not believe in the laws, as written for information, and violated them. He was prosecuted.
Should he have been prosecuted in the way the government did? How could the government ignore the illegal copying and downloading of more than four million files once it was brought to the attention of the Justice Department? Not to prosecute would have been an invitation to others to indulge wide-spread downloading and hacking/copying. Just as clearly, no one at MIT understood the significance of the case when they reported it.
Nor do the legal scholars who write articles and briefs attempting to distinguish between “minimal” incremental harm created by personal copying and larger harm created by “commercial” pirating. Admittedly, any individual’s personal copying of electronic articles or books represents minimal economic harm to the copyright holder, but when thousands of individuals, or tens of thousands, download torrent e-book editions, or journal articles, or anything in mass, that individual minimal harm becomes a significant collective harm to the copyright holders… and as I’ve noted repeatedly, that harm is reflected already in sales figures.
But… the Justice Department cannot very well go after tens of thousands of individuals… if it could even locate them. All government prosecutors can do is to go after large instances of illegal copying and downloading… and Aaron Swartz was one of the largest.
In this case, if there is any party responsible for Swartz’s suicide beside Swartz himself, it is not the federal government [and I’m no fan of the Justice Department], but MIT. MIT already had a trial program for open reading access to most of the files, one that, ironically, MIT made permanent after Swartz’s death. If they wanted to punish Swartz, they could have revoked Swartz’s access and any other privileges. They could have filed a civil suit against him or sought damages. From what I can tell, they did none of those. Instead, acting as so many university bureaucrats do, they passed the buck to the Justice Department. Then… when they realized what might happen, they begged and pleaded that DOJ not prosecute. What would have happened if DOJ had dropped all charges or only given Swartz a slap on the wrist? I can just see the headlines – “DOJ Caves to MIT” or “Feds Ignore Reddit Exec’s Piracy.” Obviously, DOJ could see them as well.
There are stories that suggest Swartz had attempted to get a plea bargain, but that DOJ refused any plea bargain that didn’t involve jail time for Swartz, and that Swartz didn’t believe he should serve time for something he didn’t see as wrong. What Swartz – and some commenters here – didn’t understand was that the law is the law, and that following personal feelings of right and wrong which conflict with the law often has a very high price… as it should, because, otherwise, everyone’s personal feelings would be above the law… and that is a recipe for anarchy.
It’s one thing to use those feelings – and those of others who share those views – to change the laws, and that can be constructive, but to flaunt the law and believe that there should be no significant consequences…?
In the end, however, given the outcry over cases such as that of Swartz, and the political pressures, those who want intellectual property cheaply, or for free, will likely win out in any venue where the product can be duplicated almost effortlessly and cheaply. The result will be that “popular” culture will sink even below mediocrity and that the vast majority of work of originality and quality will either be drowned out or lost in the flood of cheap presentations, or funded by wealthy patrons, as music and novels were in the late eighteenth century, or offered in some involved high-technology way that cannot be easily copied, thus making billions for a handful of media empires. Research will dwindle and be limited to the corporate sector in those areas where corporate security and “trade secrets” can offer some modicum of protection. All this cannot help but have a negative impact, both in terms of national productivity and creativity, because “free” does not pay for either productivity or creativity — or the support services they require — and very few people or organizations can afford to produce or create for free.