Law and “Right and Wrong”

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.

36 thoughts on “Law and “Right and Wrong””

  1. Wine Guy says:

    The last paragraph smells of William Gibson novels…

    And I don’t know of ANY organization that can produce/create for free: even the ones who purportedly do things ‘for free’ do it with other people’s money. What goes out from there is supposed to enrich society… or it gives them some manner of secondary gain (e.g. free cell phones when cell phone services and long term contracts are the real $$ makers).

    1. j says:

      ‘For free’ almost always means advertising supported. And profits per view from advertising are so low that only media aimed at a truly massive number of people can even break even. The need to reach such a massive number of people means that creators always have to aim at the lowest common denominator just to stay in business. And there’s the dystopian future of Mr. Modesitt’s last paragraph.

      The only entertainment business that stands a chance without the lowest common denominator approach is always-online video games, which are piracy resistant if not completely impervious. And, to say the least, video games have yet to display much artistic potential or even much desire to aim above the lowest common denominator.

  2. Ryan Jackson says:

    Slight tangent here, J, but have to disagree. Many video games do only cater to the lowest common denominator. And many more rise above in the genre’s they dwell in. For every Call of Duty X or Madden New Edition dealing in lowest we generally will have something like the Early Silent Hills or various individual efforts from Square that cross the line into true art and expression. I can honestly say I’ve never been frightened by a film or book the way Silent Hill 2 was able to mess with me. And while I would never hold them up to Mr. Modesitt’s work or Robert Jordan’s, I can honestly say that I have been every bit as moved by Terra’s struggles in Final Fantasy VI, or Fei’s search to find out what he really is in Xenogears.

    The challenge there is less only appealing to the lowest common point and more to getting people to recognize and accept that these are art forms every bit as valid as literature, music and film.

    Sorry for the derail. I honestly agree with everything Mr. Modesitt said, so can’t really comment further unless someone else opens the arguement.

  3. Joe says:

    It is sad how you are trying to bash a round peg into a square hole. Aaron was prosecuted for wire-fraud under 18 U.S.C. §§ 1343 and 18 U.S.C. §§ 1340. Not copyright law, and not the NET act. Read the indictment:,%20Aaron%20Indictment.pdf

    Copyright was invented to cope with a technical innovation: the printing press, in particular the depredations of publishers on authors. It would not be surprising if another technical innovation (computers) required it to change. Nevertheless, valuable work was produced before the invention of copyright. William Shakespeare, Homer both produced works of far greater value than either of us have, even with the benefit of copyright.

    Before copyright, work was funded. Some by rich people, some by everyone. Now we have sites like indiegogo and kickstarter which have funded many creative works. 10% of the movies at the Sundance festival were funded by kickstarter, as well as one Oscar nominated movie. In the past the Church funded most work (all those illuminated manuscripts created during Europe’s medieval era? Bach’s Cantatas?). Rich patrons supported the arts (Classical music was not “popular”). The scientific work Aaron was interested in were not funded by the papers he downloaded. Nor was Newton’s work funded by copyright, and it is original. It seems ludicrous to suggest that high quality creative work will stop if copyright ends. Just turn on your TV and tell me that the 500 channels of copyrighted crap encourage creative work.

    Anarchy without law? Yes, to some extent. But never forget laws are bought and paid for by supporting pet politicians. When laws are only applied to the weak they lose their moral authority, and end up ignored. If Americans had respected British law, the US would still be a colony. I note that none of those responsible for the greatest recession since the great depression have been prosecuted. Just in the last month HSBC got away with drug money laundering, because they are too big to fail. Even you must admit that copyright violation pales in comparison to what the world’s financial class has gotten away with. Law is a tool and historically only lasts as long as it is perceived as useful by the majority.

    Now some technical points.

    Technically there is no difference between downloading and viewing a document on your computer (read up on swap file, and browser caches if you care). JSTOR recognizes that fact in its terms of service. The fact whatever idiot lawyer you are quoting doesn’t just shows his technical incompetence.

    While you are good at pointing out others’ hypocrisy, here is yours: this website runs on Linux, which was developed by many people in their spare time. Your argument would suggest Microsoft’s products are better since they are funded by copyright. Yet Linux runs most websites. Over 60% of websites run the open source nginx and apache webservices. Every single copyrighted choice is technically inferior. So much for your argument. I notice you are even using Aaron’s work on your website… Did you pay him for it?

    The intellectual and real honesty of the people who developed the software that runs the internet is that most of the software you use to communicate on the internet is open source. The proprietary vendors have died. The most powerful change to our lives in the last 10 years has been made possible by people working in their spare time. Aaron was one of them. You may claim dishonesty but you do not clearly do not understand how the technology you take for granted came about. Windows, MacOS, the iPhone all contain open source software that make it possible for your computer to connect to and browse the internet. Had proprietary vendors had their way, you would still be stuck in AOL’s walled garden.

    Ultimately you are right on one score. You will lose if you only shout the same point again and again more and more shrilly. Perhaps copyright will be adapted to better suit the times, or perhaps it will break under the strain of new innovations. I hope we get a better system after the breakage, but that will depend very much on whether people like us come up with better ideas or cling to the way it’s always been done.

  4. There is one major difference between viewing and downloading. Viewing is cached and temporary. Downloading is the intent to make permanent, a distinction recognized by a number of court decisions. You’re the one hanging your hat on technicalities here.

    As for me, I’ve never claimed that copyright makes anything better. I’ve claimed that it grants rights and privileges and often income to the creator and tries to protect his or her rights. Once more, you’re conflating issues.

    It’s not hypocritical to use open source material or documents, especially since those who created open source codes and systems did choose to offer them openly. It is hypocritical to claim honesty and then infringe copyright.

    So… Swartz was both violating copyright, for which he was not charged, and for wire fraud and illegal use of the system, with which he was charged. That makes it better?

    As for the banks, you might do me the honor of noting that I’ve been making, for years, the same point you have about banks and the financial community. I’ve repeatedly raised a wide range of issues about their actions and their lack of ethics, not to mention their ineptitude.

    1. Joe says:

      The documents were PDFs, PS, and Djvu. Browsers do not support inline reading of some or all of these formats. Therefore one must download the documents to read them. If I intend to delete them afterwards, it’s not downloading??? I’m not convinced but then lawyers do tend to make the simplest things convoluted.

      No it is not hypocritical to use open systems, but it is consistent for those who wanted them open to make them open and to advocate more openness. Open information advocates can be honest. Honest does not mean law-abiding. Gandhi broke the salt-laws in India because of his honest belief that they were wrong. He was honest, and a law breaker.

      Fundamentally you seem to be arguing that you have rights over others because the law grants them to you, whereas it seems to me that it is because we all consent to follow the law that you effectively have those rights. We are granting you those rigths because we find it benefits us all. If we all decided to behave in some other way, those “rights” disappear because they never actually existed, unlike gravity which exists whatever I do. George Bush was correct when he said the Constitution is just some damn piece of paper — it is unless we follow it. As such there is value in conversing with those that want to change the system rather than railing against them.

      Yes it does make it better if your statement is simply “I, LEM, am of the opinion that Swartz was violating copyright”. I am not aware that this opinion has been established as a fact, but you are perfectly entitled to have an opinion, although I wish you said it was your opinion and not a fact.

      I’m glad we agree on banks. Hopefully one day we will agree on copyright.

      1. I’ve never disagreed with the idea that rights come from those with the power to establish and maintain them. In the USA, that power is represented, rightly or wrongly, by the three branches of government…and they established copyright. I have rights under copyright, but they aren’t rights “over” anyone, not unless you’re willing to say that everyone has rights over lawbreakers.

        I have said, under the laws of Congress and the decisions of the courts, that the acts Swartz committed are a breach of copyright. Whether they should be is another question. You’re arguing “should” as opposed to law. You have that right, and you even have the right to claim the law is wrong. But when you imply that Swartz and others have the right, because they believe it is right, to take actions,which if followed by others, cause me harm and which are proscribed by law, then you are advocating law-breaking. Under those circumstances, I think that taking me to task for pointing out that law-breaking is law-breaking is a bit much.

        1. Joe says:

          I am not arguing should. I am arguing fact. You claim copyright violation yet you present no evidence.

          It may seem obvious that Swartz violated copyright, but it isn’t. To claim copyright you cannot just have digitized papers you found in the public domain, which is mostly what JSTOR consists of. As you must know from having published books, there must be a clear trail of paperwork from the author to the current copyright owner. Along this trail someone must have registered the copyright. It is a felony to forge this paperwork, just like it was a felony to “robo-sign” mortgage transfers.

          If you do have evidence that Swartz violated copyright, please present it. Otherwise you making a claim based on an assumption. I.e. you have an opinion.

          While I do not have evidence that there was no copyright violation, I find it unlikely that Swartz violated copyright because the prosecutor found 4 things to charge Aaron with, and then found another 9. Copyright violation would be a no-brainer, yet for someone with such zeal, s/he did not charge him with copyright violation. My guess is it really wouldn’t stick. This is surprising since the wire-fraud claims were technically very weak as was pointed out in a link I posted previously.

          I read your previous post as stating violating copyright is intellectually dishonest. I disagree with that statement. I do agree that it is breaking the law.

          1. Disagree all you want.

            As for proof in the legal sense… you know as well as I do that only a court could judge that. I do have evidence. Four million articles are a hell of a lot. Tell me. Tell me that every single article was in the public domain. Turning the argument around… you can’t.

            And if it was so legal, why did the most honorable Mr. Swartz have to log on illegally [and there is proof of that] and break into a restricted space to park his laptop?

            Come on, Joe. He broke the law. You’re justifying all his actions on the basis that you believe the law is wrong. As I’ve said before, that may be. But it is the law.

          2. Joe says:

            LEM, you’re not following basic logic. If you posit something you must provide evidence for it. If you do not posit something, you do not have to provide evidence for it not existing. If you state there is a spaghetti monster in the sky you have to provide evidence for it. I who make no such claim do not have to provide evidence for it not existing. You posit Swartz violated copyright. Where is your evidence? I do not claim that he did not violate copyright, but I don’t claim that he did either, and I see reasonable grounds for believing it is questionable that he did which I stated above. You appear to believe without a doubt that he did. The burden of proof is on you, not on me.

            He changed his MAC address. That is not uncommon practice. My ISP requires me to do it to my router, and it is certainly not illegal. Security experts disagree what “authorized” access means in a situation like MIT’s open network with someone who was a fellow at Harvard with whom MIT shares access. If those skilled in the art struggle to interpret the law, I don’t really know how a science fiction author who struggles with his word processor can know.

            He trespassed. That is illegal and punishable in Massachusetts by $100 fine. He should have been fined. We can agree on that.

        2. j says:

          The freeloaders needed a martyr (Joe is already making comparisons to Gandhi), and now that they have one they will defend him by whatever means necessary until Google can get a street named after him.

          The fact is he broke the law, Joe thinks this is fine because he doesn’t like the law, he wants a revolution against the ‘oppression’ of copyright–our main legal means of allowing creators to choose whether or not they give their work away for free. In my experience anyone who claims to be oppressed by copyright and needs to cite Gandhi, the American Revolution, HSBC, and George Bush within a few paragraphs probably just wants free stuff. Student looters always defend themselves by talking on about social injustices, using the language they learned in their political science classes, but the truth is they’re just looters stealing iPhones and sneakers.

          1. j says:

            I used to use JSTOR every day when I was in grad school. I seriously doubt they even _have_ four million articles that are out of copyright in the whole system.

            Here’s what Jimmy Wales says:

            Beginning September 6, 2011, JSTOR made public domain content freely available to the public.[24][25] This “Early Journal Content” program constitutes about 6% of JSTOR’s total content, and includes over 500,000 documents from over 200 journals that were published before 1923 in the United States and before 1870 in other countries.[24][25][26]

            There you go, 500,000.

  5. j says:

    Joe, for someone so skeptical about current elites (bankers, etc.) it’s odd that you look for a model to past times where the elites controlled which artists would be financed and which wouldn’t. The methods Shakespeare and Homer used to profit from their art are no longer viable.

    1. Joe says:

      This comment is illogical. Wanting to change copyright law does not imply that I want culture controlled by bankers. Nor does copyright prevent culture from being controlled by the elites running corporations — if anything it enables it.

      Shakespeare sold plays to theatre companies. You can still do that. I do not know how Homer made his livelihood, but generally speaking bards of the time were performers and were paid when they performed. People still do that. So your second point is false.

      Finally, some people have a day job and create in their free time. People like Einstein, Douglas Adams, Charlotte Bronte, Kurt Vonnegut, and pretty much every modern poet including the one that will speak at Obama’s inauguration. Others like Van Gogh lived off very little but still produced masterpieces in only 7 years. It’s not ideal, but it’s not impossible.

      1. And you think that going back to a system where the majority of great creators lived at the whim of others or had hand-to-mouth existences is a good thing?

  6. Joe says:

    For someone who claims to have gone to grad school, @j, you really have issues with reading comprehension.

    Beginning September 6, 2011, JSTOR made public domain content freely available to the public.[24][25] This “Early Journal Content” program constitutes about 6% of JSTOR’s total content, and includes over 500,000 documents from over 200 journals that were published before 1923 in the United States and before 1870 in other countries.[24][25][26

    This says that JSTOR’s collection includes at least 500,000 documents from before 1923. It does not say JSTOR’s collection includes only 500,000 documents from before 1923.

    Nor did I say Aaron was like Gandhi. I said it is possible to be honest and break the law and cited Gandhi as an example. I could have cited Rosa Parks.

    1. Joe says:

      Let me quote JSTOR’s own FAQ about those documents that were released

      “We do not believe that just because something is in the public domain, it can always be provided for free. There are costs associated with selection, digitization, access provision, preservation, and a wide variety of services that are necessary for content to reach those who need it. We have determined that we can sustain free access and meet our preservation obligations for this particular set of content for individuals as part of our overall activities undertaken in pursuit of our mission.”

      I.e. there is other public domain material on JSTOR.

  7. j says:

    Should we call it Swartz Avenue, or Swartz Road? Let’s start a petition. I think we can have it put next to MLK Blvd.

  8. Delusions Demise says:

    I like this post exponentially better than the last. When you break the law you take a risk, it is up to the individual weather or not that risk is actually worth it.

    Yes, Swartz did break the law and while his suicide is unfortunate, he should have realized the implications of the gamble he decided to take. Playing hardball with the legal system is not exactly the healthiest of pursuits. It is shameful how he did not take responsibility for his actions and instead decried the law as unjust. In his mind, it was always likely someone elses fault, but he has no one to blame but himself.

  9. Joe…I say that the volume of content argues for copyright infringement… call it statistical inference. No… it’s not legal proof, but, frankly, my claim to violation is a lot stronger than your claim of no violation. You assert no violation, and claim I must provide an iron-clad evidence of my position. Logically, since we’re talking logic, you have to do the same. You haven’t. In fact, most of what you say, if you look at it clearly, suggests that Swartz was committing various crimes in pursuit of “open access,” if you will.

    Second, MIT/JTOR’s FAQ points out something that all you “information should be free” freaks tend to ignore. It costs money — and you don’t want to pay it. You want the creators, compilers, and providers to pay for it. Or rich people. Or corporations. Anyone but you.

    1. Joe says:

      And why do you claim I am an “information must be free freak”? I have never said that nor do I believe it. That something costs money does not imply it has to be funded by copyright. It would be nice if you were able to discuss things rationally. I am disappointed that you are not. Good bye.

      1. j says:

        Like I told the shopkeeper the last time I stole his goods: I understand it costs money to run your business, but you really ought to seek an alternate source of funding.

        1. j says:

          I started telling him about Van Gogh and Gandhi too but then I heard some sirens so I had to scram.

  10. Delusions Demise says:

    As Joe leaves ever so angrily with his tail tucked between his legs, I ponder what the use of his efforts were if he is to shun anyone who disagrees with him. =^.^=

    Whatever happened to good sportsman ship? It was a fair caught. If it were so that more people were able to agree to disagree we may be able to get more things done as individuals.

    I disagree with about 40% of Modesitts posts, but all of them are very thoughtful and well written as would be expected. You don’t see me name calling him or revealing any deep rooted prejudices. Perhaps more people should follow-suit.

    Quote from Ali G “Respek” lol

  11. Alan says:

    I believe there may be something to Joe’s comment about burden of proof. You, LEM, have stated that you are providing proof by statical inference. Meaning that the volume of matter attributed to the individual alleged to be committing the crime is sufficient to convict, yes?

    You wish to prove that Swartz did in fact violate copyright. Joe did not state that Swartz did or did not violate copyright, only that there must be proof. Today’s legal system requires incontrovertible proof which will convince a jury beyond a shadow of a doubt that Swartz was guilty. Joe’s notion that some one must prove Swartz was guilty holds true to that. So long as any one person on a jury of Swartz’s peers could be convinced to have a doubt as to Swartz’s guilt, he would go free.

    And once free, he is absolved of any potential crime.

    Joe would not need to provide proof that a copyright violation did not occur. Merely toy with your statistical proof enough to create a shred of doubt. Legally, there is nothing logically which requires he prove a thing. Simply make your proof…shaky.

    For my two cents:

    If you are utilizing some one elses network, storage facility, library, etc to obtain something, and they wish to charge you, that is their right as the holders of the item in question. Be it a book, a magazine, a tool or a chair. If they wish to make access free to you, that too is their right. But as the maintainer of that property (Intellectual, physical or some other form I’m missing out on!) they may determine the disposition of that property.

    Simply because something is in public domain, say a book of Shakespeare’s plays, does not mean you get that book for free. Be it electronic or physical media, I must pay for that book. Now, if I locate some one who will give me a copy of that media, for free, which is considered a part of the public domain… Well, that’s a different ball of wax entirely. The holder of the media is offering it for free. It’s public domain, there for I am violating no copyrights. I’m just fine in accepting the book of plays.

    However, if the media is not in the public domain and you offered me a complete collection of LEM’s works in digital format with out paying for the additional copy, which I then accepted, we would both be guilty of piracy and copyright infringement. More over, even should I have one copy of the book in question, and you offer me a digital copy, that does not make it all right for me to accept it. The above provisos would still need to be addressed. My owning a digital, or physical copy already does not clear the way for carte blanche to do as I please in getting another copy.

    1. You’re right in the legal sense, and that’s probably why DOJ went for wire fraud charges. It’s also why Al Capone went to jail for income tax evasion, rather than murder or various other gang-related charges. HOWEVER, Swartz downloaded 4.8 million articles. There was no way he could even have known what was in at least 99% of them [one tenth of one percent amounting to 4,800]. To me and to any reasonable person, it would seem to me,that suggests that either he didn’t care in the slightest whether he was breaking copyright or he fully intended to. He was trying to make a statement without fully considering the costs to himself, or for that matter, to anyone else. There is also the question of whether someone did something and whether he was found guilty. Under law, only the verdict counts, but that doesn’t necessarily mean that he didn’t do it… or break the law in doing it. As Joe and I have both pointed out, scores of finance executives have committed fraud and were never charged, let alone convicted, and there’s plenty of evidence… but the resources required to make the case would be staggering, especially against the legal talent mustered.

  12. sarf says:

    There seems to be a disturbing trend in academic publishing as in order to be published, one must assign over the reproduction rights to the corporation which is doing the publishing, who will then profit (or not) off of reproducing the paper.

    This artificially restricts the mostly non-corporately sponsored output of academia, and increases cost as each research institution needs to purchase access to the papers published.
    This decreases the already scant money available to universities for research purposes – not to be confused with the total budget of a US university, much of which seems to be dedicated to professional sports subsidies, monuments to the glory of board egos and management.

    It is somewhat understandable if this leads idealistic individuals to conclude that the current system is broken, particularly with the propaganda of “all politicians are the same, change is impossible so make sure you keep what you have at any cost” as well as the lack of propaganda from collective action groups.
    Thus, they take action, assuming that society will be magically transformed by their actions, possibly by martyring themselves and causing a shift of popular (and after that, official) opinion in their favour. The consequences of their actions to themselves are – for most – assumed to be minimal.
    I must be clear that this is not meant to be a insult to the people who do act based on their ideals, but that most people who do so do not have a realistic opinion of how likely they are to be successful nor how likely they are to get hurt by them.

    There have been idealists who have succeeded, even while martyring themselves intentionally, but almost all who have done so have done it with a support organisation (often created or supported by the individual themselves).
    The stories told about them are, however, often simplified and only pay attention to the last actions taken that magically cause the desired effect. For instance, how many people fully grok that Gandhi spent 21 years in South Africa rather than, as most documentaries about popular heroes do, treat it as a brief work/vacation visit?
    “Gandhi went to South Africa, practised as a lawyer and discovered that racism was Bad. He then went back to India, dressed in a loincloth and freed the country from the now-oppressive (but previously remarkably civilized) British Empire. And they all lived happily ever after. The End.”

    Another interesting discussion might be about how social media, allowing for extensive self-selection of peers and like-minded individuals, cause individuals to over-estimate how common their opinions are – and thus erroneously believe that the time for standing up to the Man has come.
    I doubt that it is just the elites that find their version of the Truths to be Self-Evident these days.

  13. Brian says:

    “There is no justice in following unjust laws. It’s time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture.
    We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access.”
    –Aaron Swartz, “Guerilla Open Access Manifesto”, 2008

    After this ‘Manifesto’ was ‘published’ Aaron Swartz wrote a program in 2008 to legally download and post federal court documents for free online using free access via public libraries, rather than the few cents per page that the government charges through its electronic archive, PACER. The FBI declined to press charges.

    For the present case, prosecutors accused Swartz of hacking into MIT’s system in November 2010 after breaking into a computer wiring closet on campus. Prosecutors said he intended to distribute the articles on file-sharing websites.

    The debate here and the previous Blog entry has primarily focused upon the issue of distributing ‘the articles on file-sharing websites’, copyright law etc. The issue of physically ‘breaking into a computer wiring closet on campus’ has been largely ignored.

    Aaron Swartz played a long-term cat-and-mouse game with MIT and JSTOR. They repeatedly tried to get him off the network and he repeatedly used different pseudonyms to get back on. He broke into the ‘computer wiring closet’ because he was trying to find a way to do what MIT and JSTOR were trying to block. He knew that he was doing something illegal and he was trying not to get caught; he hid his face from the video camera in the MIT closet. When the police spotted him, he wasn’t surprised that they wanted to talk to him; he jumped off his bike and tried to outrun the police on foot.

    Aaron Swartz stated the end (of publicly sharing information) justified the means (of breaking existing laws including breaking & entering with the intent to commit a felony) to obtain it. He proved he would follow his words with actions in 2008 and so too in 2010. Was he arrogant or naive to believe he may get away with the MIT job, too? Was he arrogant or naive to believe that he wouldn’t suffer any consequences on the chance he did get caught?

    The great tradition of civil disobedience is to intentionally violate the law and proudly bear the consequences in order to change public opinion and eventually change the law, not to violate the law in secret and try to render the law you oppose unenforceable while avoiding punishment. With his trial about to begin and given the chance to uphold the tradition of civil disobedience by taking advantage of the opportunity to publicize his desire to change existing laws in a meaningful way Aaron Swartz…..does what? Commit suicide. Did he martyr himself or was he a coward? Did his depression problems leave him defenseless and helpless to take advantage of the opportunity he made for himself? (Before the self righteous indignantly accuse me of insensitivity toward the very real problem of depression, you would be accusing one who had it and overcame it. Got it? Good!).

    Did prosecutors drive him to suicide? His family and supporters need someone to blame for their own comfort and the prosecutors are easy targets. I doubt they were
    harder on him than they are on other defendant. Given the “Guerilla Open Access Manifesto”, Aaron Swartz started down this road at his own initiative. Did he fail to understand that he was now entering the playground of adults and that game is played for keeps? Or didn’t he have what it took to follow through on the tradition of civil disobedience and on his vision and accept the consequences, good or bad, for it?

    One thing is certain: Aaron Swartz started a fight that he was not up to the task to finish himself…

  14. Wine Guy says:

    A spirited discussion. Too bad Joe ran away.

    I must say, Alan’s 2 cents seems quite on the money.

  15. Wayne Kernochan says:

    Brief belated notes from my computer industry experience and conversations with my dad (columbia copyright law professor): first, characterization of open source is incorrect. It doesn’t dominate markets; my rule of thumb is that open source acceptance means a commodity and competition has shifted elsewhere. Linux does not dominate the market. It is not a better product than Windows — its parent, Unix, has fundamental flaws in access control and I/O, which make its security lag and its standardization not complete (database companies bypass the I/O) — I was around at the time Unix was developed. The electronic frontier foundation was founded and endures because companies and the government simply were using the law to protect monopoly, not just to protect the interests of authors or the companies themselves.

    With regard to copyright (and patent), copyright was intended to protect individual rights against other individuals, but it has historically done a poor job of protecting individual authors/inventors against companies, which is the reason why copyright length kept getting extended (authors’ families needed the income). Motown’s Gordy Berry was notorious for ensuring that no author wound up with anything meaningful for his or her contributions. The creation of a global market for celebrity has resulted in a much more winner-take-all kind of market, which has allowed more authors to prosper but has mostly empowered the companies that can sell to this market. Any solution that trusts the companies to pass back enforced copyright revenues (or patent revenues) to an individual author where appropriate is far from optimal.

    must stop here – w

  16. Jack says:

    It sounds to me that Joe has a basic misunderstanding of ownership. He also has a problem with personal ownership of property. Joe are you a socialist? One for all and all for one. Nothing for me. But everything for you? Wake up man this is a capitalist country. People want to make money on things they create. Its called theft when you take it without permission, whether it is real property or intellectual property. The new economy is a joke, people just haven’t figured out how to make money on it yet. The problem will be solved and people like you can go back to your socialized fantasy worlds.

    1. sarf says:

      Jack, I doubt that joe is a socialist whatever that means; the word gets thrown around as a slur quite a bit.

      What joe seems to be is conflating the discussion of what is – current law and how Schwartz most likely violated it – and what ought to be (according to joe) – as in, information should be more free. Unfortunately for us all, there doesn’t seem to be a possibility for a discussion as joe has left and seemed to be using his own views as unassailable truths from what I could tell.

      That doesn’t mean that we can’t have a spirited discussion about copyright/intellectual property versus physical property, theft and so on, which is why I will respond to your post myself.

      There is a bit of a difference between physical property and intellectual property (IP), and that is the problem that with IP, even if I steal it from you, you (usually) still have your IP. Most people consider using an Xerox machine to copy a book a lesser crime than outright nabbing the book and running away.

      Now, with electronic intellectual property, copying becomes very easy to do as well as less of a burden on the one you copy from (I remember Xeroxing pages out of a book in grade school – it seemed like it took forever!).

      Your optimistic viewpoint about people solving the problem of unauthorized copying is somewhat unfounded. People have been making money on intellectual property for quite some time (granted, now as then it is seldom the creator that gains the most profit), and we have had problems with pirated books (even pirate printers) since way back when.

      Unfortunately (for intellectual property purposes), electronic intellectual property doesn’t help out much either. Almost all computers these days are general purpose computing machines, and what that means is that there is no one with a master key, no one with full control over the computer except the person with physical access.
      This means that if and when you wish to sell intellectual property to someone and the target platform is a computer, you can not be certain that the computer you’ve given the ability to access your content won’t be sharing that content on the side (or just storing it for its own retrieval later).
      The reason for this is that even if you’re making your own programs for a computer, the people who run the program on their machines can program the machine to lie, and can dissect and change the program. There is a very active and competent association of people doing so with new games (often breaking the copy-protection within hours of releases).

      There have been several initiatives to lock down PCs; none of them have succeeded as of yet. There are advantages to have a non-locked-down computer – just as there are advantages to having a locked-down computer as well.

      The only economically viable solution that has been found to this issue is to keep the intellectual property elsewhere and allow the local computer only partial access to it. Even so, this only works for dynamic content, as even you’d only let me see pictures of each page of – for instance – a book streamed across the ‘net, I could still save each image. The same goes for audio – even if you make it hard for me to record the sound in the computer, I can always record it at the output instead.

      If you are interested in learning more why it is not an easy problem to solve, I would be happy to lay out more details, but I did not want people to have the opinion that this is something that is going to be easy to solve.

  17. wakeup says:

    Its obvious he was killed. He wanted as much press on this issue as possible.

    1. Brian says:

      The thought that Aaron Swartz may have been ‘helped’ in his suicide occurred to me, too. However, his most ardent supporters have not made this charge….yet….at least in the sources I’ve consulted. Perhaps I’m not reading the right sources.

      One thing is clear: Aaron Swartz knew his method of obtaining those files and what he planned to do with them was illegal under existing laws. That seems to be lost on some who are arguing from ‘what ought to be’ rather than arguing to ‘what is’.

  18. Maria says:

    It could be that Joe knows something. I have read the blog:

    “In the Swartz case, the prosecutors claimed they were acting on behalf of two injured parties — JSTOR and MIT. But JSTOR disagreed with this characterization, including the attorneys’ use of the word “theft,” and demanded that they drop the case”

    “Nancy Gertner, a recently retired federal judge who is intimately familiar with both prosecutors, lambasted them in a broadcast interview, parsing and ridiculing the claims they had made against Swartz and suggesting that the case should have been dismissed”

    “The details that have emerged since Swartz’s death have only strengthened calls for the removal and punishment of the prosecutors. Swartz’s lawyers revealed, for example, that when their client’s suicidal nature was noted during their failed efforts to get the charges reduced to a misdemeanor level, Heymann responded by saying “Fine, we’ll lock him up.” Prosecutors were also revealed to have offered a reduced sentence, but only if Swartz pleaded guilty to every charge. This is clear evidence of oppression geared to advance prosecutorial careers, not to serve the interests of justice. Britain’s Daily Mail showed that Swartz was not the only youthful alleged hacker whom Heymann had hounded to suicide — twenty-four-year-old Jonathan James took his own life in 2008, six months after his home was searched in a raid coordinated by Heymann. The DOJ undertook no internal probe of that case, instead giving Heymann an award for “distinguished service.””

    “The flaw in Ortiz’s posture has been laid bare by Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals. In United States v. Nosal, he dismissed the theory Ortiz used to go after Swartz, saying it would potentially criminalize “everyone who uses a computer in violation of computer use restrictions — which may well include everyone who uses a computer.” Kozinski was born and raised in Communist Romania, and knows a thing or two about totalitarian states — and he knows that prosecutorial overbreadth is their leitmotif.”

  19. Kanonfodder says:

    Just finished battalion, good stuff as usual. I would have liked a little more “stuff” at the end, just to leave it vague and spoiler free. I really do enjoy your Nameless ideas and concepts, as transposed into today’s society.

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