Copyright

Aaron Swartz, the Feds, and Proportionate Responses to Illegal Downloading

How should the federal government have handled Swartz's behavior?

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Aaron Swartz

Not everybody following Aaron Swartz's death – the tech genius who committed suicide Friday while facing a host of federal charges over his mass downloading of academic journal papers at MIT – is falling directly into the narrative that he was the target of bullying by overzealous federal prosecutors.

Orin Kerr, George Washington University Law School professor and scholar on computer crime law, looked over the charges against Swartz at The Volokh Conspiracy. He's planning two posts analyzing the case. The first, posted today, is about whether the federal government fairly read the relevant laws. Simply put, he concludes that the charges filed against Swartz accurately reflect the crimes he was alleged to have committed. He also explains that even had Swartz been convicted, he probably would not have realistically faced combined sentences for all his charges:

The indictment against Swartz alleged several different crimes. A bunch of the crimes overlap, but that doesn't mean that they are really treated separately: At sentencing the general practice is to take the most serious of the crimes as the basis for the sentence and to mostly ignore the rest. But the ordinary practice is to charge all the possible offenses committed in the indictment, even if they overlap, and then let the jury sort them out at trial or else drop some of the charges in a plea deal.

Part two of Kerr's analysis (not up as yet) will be focusing on whether he believes the Department of Justice used appropriate discretion or judgment in this case. That's truly where the conflict is right now. Over at Patrick "Patterico" Frey's blog, Swartz's lawyer, Elliot R. Peters, described a plea bargain that didn't seem like much of a bargain:

Peters told me that, in his opinion, the Government had been "awfully unreasonable" in their approach to the case. He said that they insisted that Swartz plead to all 13 felonies. They said that even if Swartz pled guilty, they were going to seek a prison sentence. They told Peters that if the case went to trial and Swartz were convicted, they would seek a prison sentence of 7 to 8 years. They told Peters that they thought the judge would impose that sentence. (Peters told me he didn't agree; he thought the case was defensible and that even if Swartz lost, Peters didn't think the judge would have sentenced him to custody time.)

I posted about Swartz's suicide Saturday with some quick thoughts that certainly lived up to our blog's name. In response to some responses about that post: You don't have to be a leftist like Swartz or even believe that America's copyright enforcement system is rather flawed to be concerned about the federal government's behavior in this case. Much like the prosecution and 10-year sentencing of Aaron Sandusky for defying federal marijuana law (while completely conforming to state law), we should all be concerned whenever the Department of Justice obviously wants to "make an example" of somebody.

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176 responses to “Aaron Swartz, the Feds, and Proportionate Responses to Illegal Downloading

  1. The contrast between the hounding of Swartz and the treatment of that crapweasel David Gregory could not be more stark and vomit inducing. If Swartz had just been married to an attorney who made her life running in the right circles and stealing millions from the public via working for Fannie Mae, he would have been just fine.

    1. “The contrast between the hounding of Swartz and the treatment of that crapweasel David Gregory could not be more stark and vomit inducing.”

      Very good point. Swartz was a thief the way Gregory broke gun control laws.

      1. If you are scum sucking left wing media hack, breaking laws is all in good fun and in furtherance of your First Amendment Rights. If you are a real no shit privacy activists, you are going to the hole.

    2. Swartz committed the classic blunder even greater than starting a land war in Asia: he made the government look stupid.

      1. There is certainly no danger of Gregory doing that, at least not intentionally and as long as Obama is President.

  2. I posted about Swartz’s suicide Saturday with some quick thoughts that certainly lived up to our blog’s name.

    Drink!

  3. Simply put, he concludes that the charges filed against Swartz accurately reflect the crimes he was alleged to have committed.

    If I remember correctly, he is saying that caselaw supports the charges. Prosecutors routinely overcharge in the hope of overwhelming defendants and padding their resumes.

    1. So as Lilly Tomlin said as the ATT operator, “We’re not out to hurt you personally; here at the phone company, we screw everybody”

  4. While his death may bring attention to the open source academic research issue, he was going about the fight in the wrong way.

    The pricing for academic journals is a classic third-party payer problem, where academics demand that university libraries carry a journal at practically any price, but it never comes out of the academic departmental budgets.

    As long as libraries cannot economically single the outrageousness of the price, and as long as promotion, tenure and grants value publication in paper journals and subscription-only e-journals over open source publication, the economic model we have now will persist.

    1. but it never comes out of the academic departmental budgets

      To what extent would you say this is a motivation for journal publishers to bundle subscriptions, if at all? Seems like bundling is a potential win for the publishers and the departments (harder to account for who needs to pay for what), a loss for the libraries (and everyone else).

      1. It’s exactly the point of bundling, like cable channel tier packs. We could nibble around the edges by cancelling journals that haven’t been accessed in a few years, but bundling keeps them active. Of course it might come out in the wash because a bundled e-journals database might be cheaper in librarian-hours because you are doing less work to keep the access going and citations and link-backs active for one large database instead of a lot of little ones.

        But (here at least) there is no economic connection between what a professor or academic department demands we carry and what they pay. We don’t get any money directly from departments, and our efforts to make them understand the problem have failed. And the publisher are quite aware of the captive market they have.

        1. But (here at least) there is no economic connection between what a professor or academic department demands we carry and what they pay.

          A theme of…how many issues involving academe? Sigh. Thanks for the info.

    2. The next great revolution will be the Rise of the Librarians. Tired of our inane questions and utter incompetence in Dewey Decimal and LOC classification systems, they will violently overthrow the government and institute a reign of terror, which will be later referred to by historians as a bibliocracy.

      While literacy under bibliocracism will be close to 100%, the human cost will be on par with that of the Nazis and Communists.

      1. I cast you out, forever to be lost in the outer darkness of the remote storage facilty.

        1. Just so long as I’m not scanned into memory.

          1. You shall know the horrors of the spindle before the next full moon!

    3. Violating TOS should be a tort, not a crime. What the feds have basically done here is say that since a computer was used, this is super nefarious, requiring federal attention.

      There are whole classes of “attacks” like this that a competent service provider would put up basic technical guards against if they really expect to use this kind of monetization model. They didn’t.

  5. the charges filed against Swartz accurately reflect the crimes he was alleged to have committed.

    Dizzy now.

  6. Just reading the Reason-distilled blog post on Swartz last week, it seemed to me that a crime or crimes had taken place, but I also agreed that the 35 year sentence for those crimes seemed overly harsh.

    Based upon my limited understanding of everything Swartz was doing, I certainly can swing with the idea that making public documents easily obtainable and… public is a worthy activist effort.

    Breaking into network closets and surreptitiously connecting hidden laptops directly to switching equipment in those closets, yeah, you’re gonna get slapped for that.

    I do not, and still do no agree, in any way shape or form, with Swartz’s stance on Net Neutrality, a policy that the institution “bullying” Mr. Swartz also likes.

    1. If MIT had kicked him out and banned him from campus for life and sued him for the cost of every journal he downloaded, I would not have a complaint and would be on MIT’s side in this. It is the making a federal case out of this and threatening him with prison where things went off the rails.

      1. And if he’d stolen computers, you’d be fine with suing for the cost of the computers with no jail time involved?

        1. for sure. And I wouldn’t have objected to prosecuting him for trespass or theft at the state level. But this should never have been a federal case involving jail time. This is all the US Attorneys in Boston had to do? I guess their were not any mob bosses who were late on their protection payments to the office that month.

          1. Fair enough.

            As a practical matter, I agree that it seems like a poor use of resources.

          2. He didn’t STEAL anything… He had legal access to JSTOR – read the indictment: http://www.scribd.com/doc/6036…..indictment … He is essentially being charged for breaking the MIT Terms of Service for accessing their networks. His offenses include “changing his IP address” and using a “fake e-mail address to register for guest access to the network”. This is super basic stuff… Have you ever changed your IP address at Panera because you ran out of internet time and needed to finish work? Did you ever sign up for internet at a hotel but use a fake e-mail/name because you didn’t want spam? If you did, you committed the exact same crimes as Aaron. His being charged criminally is absurd. If MIT asked him to leave, I could see him being charged with criminal tresspass – but they didn’t and that charge isn’t even on the indictment. PS: I fully support JSTOR going after him for copyright infringement civilly because he republished the material after he downloaded it. But MIT running the most open network in the country (for schools) and then pulling this is very disconcerting…

            1. ^^^This.

              He may have violated his contract with MIT, in which case its purely a tort. Sue him for damages.

              And it would be fun for MIT to try to prove they were damaged.

        2. Oh, come on. Whatever you think about IP, it is not the same a stealing computers. No one was deprived of any property.

          1. Oh, come on. That’s a pretty primitive way of thinking about theft.

            1. Theft is a pretty primitive thing. I’m not saying that taking people’s IP is necessarily OK, but it needs a different word.

              1. Seriously, there is a word: infringement. The conflation of that with theft is part of the problem. Theft generally involves depriving an owner of all of his rights of ownership; infringement usually means impinging on one or more of an owner’s rights. Maybe more akin to trespass than theft, though wholesale infringement can have severe economic effects on the owner.

            2. There’s nothing more primitive than the intellectual stupidity of IP in the first place.

              1. Explain why it is stupid. If it’s that cut and dried, it shouldn’t take long.

                1. Can you copyright my thoughts? No? OK, we’re done here.

                2. Explain why it is stupid. If it’s that cut and dried, it shouldn’t take long.

                  IP does not follow from natural law.

                  In fact, its the exact opposite as it violates the basic premise of self ownership.

                  Simple example: I think of a great idea, I build it, market it and sell it. Oh, but wait! You patented it 5 minutes before I came up with the idea, guess what? I cant sell THE PRODUCT OF MY BRAIN AND LABOR for 17 years, or whatever. And I owe you damages for what I already sold.

                  ALL products of my brain, ALL labor of my body belongs to me.

                  1. Simple example: I think of a great idea, I build it, market it and sell it. Oh, but wait! You patented it 5 minutes before I came up with the idea, guess what? I cant sell THE PRODUCT OF MY BRAIN AND LABOR for 17 years, or whatever. And I owe you damages for what I already sold.

                    I’d have no problem at all for an independent discovery exception, but that’s a hard thing to prove. Also, a vanishingly small percentage of the cases.

                    So, yeah, if you can prove it was the product of YOUR brain and YOUR body, then the patent wouldn’t apply against you.

              2. So Epi, a guy expends his resources to develop something unheard of that benefits mankind and others should immediately be able to use his idea to make money for themselves without having to expend those resources? And no portion of the proceeds should go to the originator?

                1. Francisco – that is completely unrelated to the federal charges. Is it a federal offense for me to photocopy a book and then post it on the internet? No, it isn’t – but it IS copyright infringement. There is a HUGE difference between CIVIL law and CRIMINAL law – we draw distinctions between stealing a tangible asset and copying an intangible asset. Stealing is criminal, copying is civil.

                  1. Yes, I’m pretty sure it IS a federal offense. Ever see the FBI warning at the beginning of every movie you rent?

                    Not arguing it should be, just that it is.

                    And I don’t think that’s what Epi was driving at.

                    1. Francisco, if copying the pages from a book is a federal offense, please give me the statue number, that is news to me. If so, I think I need to notify the federal prosecutors in NJ since almost all of my grade-school teachers are in violation of federal copyright. PS – that FBI warning in the beginning of movies has to do with COMMERCIAL REPRODUCTION.


                2. So Epi, a guy expends his resources to develop something unheard of that benefits mankind and others should immediately be able to use his idea to make money for themselves without having to expend those resources? And no portion of the proceeds should go to the originator?

                  Yes. Yes.

                  All of my labor belongs to me.

                  1. Takes away incentive to innovate. Why not just wait for someone else to come up with the next big thing and copy it. Everyone makes the same profit, YET the inventor receives no return on his investment for having developed it.

                    You can argue we have gone too far, but the developers deserve more than the copiers.

                    1. Takes away incentive to innovate.

                      Does it actually?

                      I know that was the argument in the constitution, which proves my point, BTW. They knew they had to specifically carve out a natural law exception for patents and copyrights.

                      I, on the other hand, dont really care about pragmatic solutions anyway, so it doesnt matter to me whether it successful incentivizes innovation or not.

                      The products of my brain, and the labors of my hands, are mine. Even if you thought of it first.

                      And there is a solution in a patent-free world: trade secrets. They even have the advantage of lasting longer than patents, if you can keep them.

                    2. trade secrets.

                      Maybe for KFC, but not for anything mechanical. I can buy it, take it apart and reverse engineer it almost immediately.

                      NOW, ON THE OTHER HAND, if I modify or improve upon the idea at all…

                      It’s a new product/idea.

                    3. Maybe for KFC, but not for anything mechanical.

                      Actually, restaurants struggle with that. Recipes arent patentable (in general) and a copyright on a published recipe only protects against republication, not from use. I know a brewer who got nailed for violating a non-compete-type agreement, his pale ale was too close to the one he made for his previous employer. He might have won in court, but settled instead.

                      The point being, that even in easy to reverse engineer cases, the creator often gets lots of benefit from it.

                    4. Recipes arent patentable (in general)

                      Really though, that’s probably for reasons having to do with prior art and obviousness; not for their being recipes per se. Industrial processes are patented all of the time, despite their being, at heart, recipes to make something. It’s just there’s not much new under the sun in cooking, though some of the stuff Adria and other molecular gastronomists came up with might qualify for patent protection.

                    5. Really though, that’s probably for reasons having to do with prior art and obviousness; not for their being recipes per se. Industrial processes are patented all of the time, despite their being, at heart, recipes to make something. It’s just there’s not much new under the sun in cooking, though some of the stuff Adria and other molecular gastronomists came up with might qualify for patent protection.

                      That is all true. The thing is, the lack of patent protection isnt hurting innovation, as the molecular gastonomists prove.

                      And I think, from a pragmatic standpoint, while patent protection might be better for the individual chef, the restaurant industry AS A WHOLE, benefits even more from the lack of patents.

                      So in this case the deontologists and the utilitarians would be in agreement.

                      I see no evidence for patent/copyright actually encouraging innovation. In those few fields were it doesnt exist, innovation continues to happen. Its one of those things that sounds like good theory, but when actually tested, fails.

                    6. This threading system is awful.

                      I agree with your point on the restaurant industry, and would add that the fashion industry seems to feel the same way, though they enforce the hell out of their trademarks and trade dress. And I think some areas enforce copyright, on say, graphic prints. Pucci comes to mind, for some reason.

                      However, I don’t have a problem with patent protection for industries that otherwise would have a significant free-rider problem. The pharmaceutical industry comes to mind. Realistically, with all major players in many industries (integrated circuits, software, pharma, etc…) having interlocking, cross-licensed patent portfolios, patent law is just another way that the established within an industry are able to exclude competitors. The PTO, until recently, granting everything under the sun and letting the district court in Marshall, Texas and then the Federal Circuit fight it out, wasn’t helping things either. For Christ’s sake: obviousness is there for a reason. Try using it once in a while…

                      IMHO, for the most part, patent law and infringement within it, isn’t a giant albatross for consumers. It’s copyright by a mile. Unlike you, I support IP, but like ProL, think that it’s gotten way out of hand.

                    7. YET the inventor receives no return on his investment for having developed it.

                      Not true. He gets first mover advantage.

                      And to use an analogy (not exactly dead on, because open source takes advantage of copyright with things like the GPL, but as close as I can get in an easy to understand example in the world we live in), are you saying Torvalds got no ROI for developing linux?

              3. Well, you’re forgetting Warty.

            3. Is it theft at all if you have legal and full access to what you allegedly stole? If someone gives you legal access to a library and says “feel free to take whatever you need for as long as you need” and then you decided that you are going to check out half the books in the library is that stealing just because you used the privilege too much? Should the librarian be able to say “well, it’s stealing because he used a cart to carry out all those books and we only intended for people to carry out the books by hand” – that is essentially the case here. All your other characterizations and comparisons are WAY off the mark.

              1. Is it theft at all if you have legal and full access to what you allegedly stole?

                Your analogy is incorrect. For it to apply in this situation, you would need to have the library be a fee-based service and the person checking the books out making copies and giving them to people who didn’t pay the fee.

                1. Sparky, he DID have full and legal access to JSTOR. ANYONE who is within wireless range of MIT has full and legal access to JSTOR. My analogy is very correct – MIT runs an open and free network and JSTOR is free and open on the MIT network – without need of a username of password and without any fees. Libraries pay for their books but don’t charge users – just like MIT pays for JSTOR but doesn’t charge its users.

              2. Is it theft at all if you have legal and full access to what you allegedly stole?

                Completely depends on the agreement you enter into. Was the agreement that YOU may use the information BUT you may not share it?

                Also depends upon whether the material is public or private. A private owner can put any stipulation they wish upon their property. The provider of PUBLIC information may not.

                1. Francisco I am not arguing what he did wasn’t wrong and that he shouldn’t be held accountable for copyright infringement – he SHOULD be sued. I am arguing what he did was NOT a federal offense. Read the damn indictment. There is a place for violation of an agreement and that place is CIVIL COURT. You don’t get charged with a felony for breaking a contract. There is a huge difference between federal felonies and a basic civil lawsuit.

                  1. I am not arguing in defense of Swartz. I don’t know the circumstances. Did he have access privileges? Was it public or private property he took…

                    I’m arguing that IP is property and taking it without permission is theft.

              3. He did not have “legal and full” access. The admins kept blocking his access when they discovered him. When he got tired of creating new addresses and such he used a hardwired connection that no reasonable person would assume was not trespassing. His actions also had a detrimental effect on MIT’s operations, JSTOR cut MIT off for awhile when MIT was not able to curb his activities.

                1. Then he should have been charged with trespassing under MA law.

                2. Mickey – please tell me the threshold for unauthorized access on a public, open network? Is there any case law or test that courts use to determine these things on an open network? Is changing your IP Address Illegal? Is changing your MAC Address Illegal? Did he have to steal a username and password to access JSTOR? The answer to all of those is no. IF they had noticed him PERSONALLY – as in by name, address, etc. – not just by blocking IP addresses and User-Agents, I would agree 100% with those charges. He knew what he was doing was wrong, but that does not mean federal prosecutors should have power to prosecute people willy-nilly for using OPEN networks without taking real steps to stop access. They put a camera in the wiring closet instead of disconnecting the computer – the goal wasn’t to stop him and tresspass him – it was to railroad him.

                  1. “They put a camera in the wiring closet instead of disconnecting the computer – the goal wasn’t to stop him and tresspass him – it was to railroad him.”

                    I presume the goal was to find the identity of who left the laptop there so they could keep him off campus personally.

                    Swartz was abusing all kinds of gentlemen’s agreements in pursuing his personal crusade. His sort of activities are whyinstitutions put greater and more annoying security up. While I may agree that the feds prosecution was excessive, I don’t feel much sympathy for him since he was well aware that what he doing was violating MIT’s terms of use.

            4. copyright infringement != theft.

              I had to type that like 57 times in the last thread.

          2. Whatever you think about IP, it is not the same a stealing computers. No one was deprived of any property.

            And regardless of what you think about it, it is considered the same under current laws. This guy was obviously trying to change that, and at the same time knew if he got caught what he’d be facing.

            1. I don’t think Swartz had any idea what he’d be facing.

              1. He may not have known how far it was going to go, but he knew what he was doing was going to be considered wrong.

                And to not have a thought that the government might get involved shows an amazing lack of intellect for someone going to MIT.

                1. I don’t believe he was attending MIT in the capacity of student, and it’s not clear to me that he was actually affiliated with them in any way. He seems to have been working at the Edmond J. Safra Center for Ethics at Harvard at the time.

                  1. He seems to have been working at the Edmond J. Safra Center for Ethics at Harvard at the time.

                    Even better then.

                2. Swartz had access to JSTORS from Harvard. I presume he did not use that access for his reindeer games because he was well aware that would go over with his bosses at Harvard like a lead balloon.

            2. So what? Aaron Sandusky could have been sentenced to life in prison for selling a plant under current laws.

              1. Aaron Sandusky could have been sentenced to life in prison for selling a plant under current laws.

                If that’s directed at me, what’s your point? The government makes retarded laws all the time, and whether or not you agree with them they are the law. And if you break them, you’re going to be punished for it. In fact, some people who just want to prove the absurdity of stupid laws intentionally break them just to have them brought up in court.

            3. lol sparky you NEED TO READ THE INDICTMENT – he isn’t charged with stealing their IP – he is being charged with wire fraud, unauthorized network access, computer hacking, damaging a network, etc… There isn’t a single charge for theft…

        3. As said in the other thread about 50 times, stealing computers and ‘stealing’ documents are apples and oranges.

          Stealing computers deprives the school of something.

          ‘Stealing’ the documents doesn’t deprive the school of anything.

          Now I’m all for not prosecuting if the ‘victim’ doesn’t want it, but ymmv. But don’t pretend the crimes are equal.

          1. “Stealing” isn’t just about deprivation, it is also about gaining illegitimate use.

            1. Yes, but it is also about deprivation. You need both.

              1. If you tap into my unmetered broadband and use the hell out of it while I am not home, depriving me of nothing, what word would you use in place of “stealing” or “theft”? Or do you think there is no crime there?

                1. I think you have a good civil suit on your hand. Good luck proving how your interests were damaged. More power to you if you can do that.

                  1. Do you believe that such actions are beyond the reach of legitimate criminal law?

                  2. I think you have a good civil suit on your hand. Good luck proving how your interests were damaged. More power to you if you can do that.

                    So if someone taps into my electricity I only have a civil suit because my interests weren’t damage? Or is it because my electricity is metered? So the only reason stealing my broadband internet is A-Ok is because it’s not metered? Newsflash: Sometimes it is, some places it is, so what then?

                    1. So if someone taps into my electricity I only have a civil suit because my interests weren’t damage? Or is it because my electricity is metered?

                      If you are paying by usage, then you were pretty clearly deprived of your money.

                      So the only reason stealing my broadband internet is A-Ok is because it’s not metered? Newsflash: Sometimes it is, some places it is, so what then?

                      As entropy said, it’s trespass or unauthorized access.

                    2. As entropy said, it’s trespass or unauthorized access.

                      So a crime.

                      Check.

                    3. So a crime. Check.

                      A different crime. Not theft.

                  3. I think you have a good civil suit on your hand. Good luck proving how your interests were damaged. More power to you if you can do that.

                    So the company selling internet access wasn’t wronged? They didn’t receive the profits they would have had you not been a piece of shit and stole their service.

                    1. So the company selling internet access wasn’t wronged? They didn’t receive the profits they would have had you not been a piece of shit and stole their service.

                      Yes they were wronged, but what does that have to do with trying to distinguish the difference between physical steal and digital piracy?

                      If I were to try and distinguish the difference between libel and slander would that mean I’m trying to excuse everyone who ever engaged in libel? Why can’t anyone acknowledge this simple difference without getting all puritan and accusatory?

                    2. SO your point is you just want a different name for it?

                      Again, not sure that was the argument above.

                    3. SO your point is you just want a different name for it?

                      Again, not sure that was the argument above.

                      I want a different name for it for the same reason there are different names for slander and libel. Physically stealing someone’s CD collection is not the same thing as making a digital copy of someone’s CD collection.

                    4. SO your point is you just want a different name for it?

                      No, my point is I want you charged for attempted murder and rape the next time you get pulled over for speeding.

                      Crime is crime, eh? Let’s not be picky about names. Speeding is a crime, rape is a crime, you’re a criminal, so what’s with the nitpicking?

                    5. Just because you illegally accessed their service does not mean you would have bought it if you hadn’t ganked it.

                    6. I own it. I say you MAY not have it unless you buy it. You took it anyway. You stole from me.

                    7. No different than sneaking into a movie.

                    8. No different than sneaking into a movie.

                      Or me catching you in my server room, hooking a laptop up to my Nexus 7000.

                    9. Sneaking into a movie is trespassing, not theft. You didn’t steal jack shit. You trespassed where you weren’t authorized to be.

                    10. No, you are stealing a service.

                    11. Sneaking into a movie isn’t stealing either.

                    12. I own it. I say you MAY not have it unless you buy it. You took it anyway. You stole from me.

                      Do you also own those words you just wrote? Can I make ten thousand digital copies of those three sentences without your permission?

                    13. Do you also own those words you just wrote?

                      If I intended to make a profit from them AND took the time/money to copyright them, then yes I would “own” them for a period of time.

                    14. If I intended to make a profit from them AND took the time/money to copyright them, then yes I would “own” them for a period of time.

                      That period of time being forever, or until Disney runs out of money to buy congressmen with.

                    15. Except you STILL HAVE IT.

                      So it’s exactly like saying “I own the color blue and if you want it on anything, you have to pay me.”

                      Then if you go get some blue jeans, and you don’t pay me, you ‘stole’ my color.

                    16. Just because you illegally accessed their service does not mean you would have bought it if you hadn’t ganked it.

                      And just because you managed to snag it for free doesn’t mean you were entitled to it.

                    17. What’s entitled got to do with anything?

                      I agree – you’re not entitled. So what?

                    18. What’s entitled got to do with anything?

                      I agree – you’re not entitled. So what?

                      Your comment about not using a service unless you were able to get it for free, at someone else’s expense, implies that you have a right to use the service.

                    19. No it doesn’t.

                      It implies only the truth – that not buying a thing is not the same as buying a thing. That just because I access $2,500 worth of software without paying for it does not actually mean I have deprived you of $2,500. I did not ‘steal’ that money from you because that money never even existed. There was never any $2,500 to be stolen in the first place.

                    20. Answer me this, why is stealing even bad?? Why are we against theft?

                      Without the deprivation aspect, who gives a fuck? If I had a sandwich, and the act of you stealing my sandwich created 2 sandwiches (1 for you and 1 for me) who, in a world of hungry people, would be spitefully selfish enough to bother to oppose theft?

                    21. that not buying a thing is not the same as buying a thing

                      I agree.

                      That just because I access $2,500 worth of software without paying for it does not actually mean I have deprived you of $2,500. I did not ‘steal’ that money from you because that money never even existed.

                      Why am I charging for my product? Because I believe I should be compensated for the work I put into it.
                      Why did you take my product? Because you wanted it.
                      Why didn’t you pay for it? Because you felt you shouldn’t have to.

                      I agree, there was no money. I also agree that you and I never formed a contract for me to give you anything in exchange for payment. Neither of those facts change the fact that you took my product because you wanted it and had the opportunity to take it at no charge.

                    22. Neither of those facts change the fact that you took my product because you wanted it and had the opportunity to take it at no charge.

                      It’s still not theft of $2,500.

                      Copyright infrigement, violation of TOS, trespassing, espionage, depending on the particulars.

                      But there was no theft.

                      I “took” nothing from you. To be frank, I copied from you. To copy is not the same as to take.

                      Why am I charging for my product? Because I believe I should be compensated for the work I put into it.

                      Lots of people believe they should be compensated, yet aren’t, legally. Just because you believe you should be compensated doesn’t necessarily mean you’re entitled to it.

                    23. ust because you believe you should be compensated doesn’t necessarily mean you’re entitled to it.

                      That’s an interesting position. One that I’m sure a lot of doctors are pretty worried about right now.

                    24. Probably.

                      But it’s true. Look at the ‘Jesus the Monkey’ painting in Spain, remember that one? That lady believes she’s entitled to compensation, because it has become a tourist attraction!

                      She believes she is, but she’s not.

                      If she wanted to be payed for it, she shouldn’t have done if for free.

                    25. Which speaks to the fact that – as I said, ‘depending on particulars’ – just because I got your program that you intended to charge for without paying for it does not necessarily mean I have committed any crime.

                      I may or may not have.

                    26. If she wanted to be payed for it, she shouldn’t have done if for free.

                      That’s not really a very good argument (except in rare cases). I think many people who have their works used without compensation didn’t do it for free. Software developers, authors, musicians, etc. are all expecting compensation for making their works available. You still aren’t entitled to their work just because they put it somewhere that you were able to grab at no cost.

                    27. You still aren’t entitled to their work just because they put it somewhere that you were able to grab at no cost.

                      Uh, yes I am.

                      If they didn’t want me to see their work without paying, they shouldn’t have put it where I can see their work without paying and without commiting a crime.

                      You may make a movie, and have intention to charge for it. Um… don’t put it on Youtube then. If you put your own movie on Youtube and I watch it without paying, I have neither stolen from you nor commited any other crime.

                      If they put it somewhere where I can watch it without paying, by commiting the crime of hacking, then I have commited the crime of hacking by hacking, not by watching, and not theft.

                    28. If they put it somewhere where I can watch it without paying, by commiting the crime of hacking, then I have commited the crime of hacking by hacking, not by watching, and not theft.

                      This was the intent of my post.

                      I have been careful to not call it theft, because I’m not sure that it is theft either. That being said, I do believe that it is morally wrong to take for free something that has had a price put on it.

                      If I see a movie that I like that I want a copy of, I buy it.
                      If I hear a song that I like that I want a copy of, I buy it.
                      If I see a book that I like, I buy it.
                      If I find a piece of software that I like, I buy it.

                    29. How do you know if you like it?

                      You see it, then you buy it? So you PIRATE it, and then sometimes you cover your tracks by buying it legally too?

                      I do the same thing actually. I pirate the fucker. If I really like it, I will probably buy a copy for myself.

                      But if I don’t like it, I won’t buy it (despite having watched it), and I won’t deprive anyone of anything because I never would have bought it in the first place, I would have just skipped it.

                    30. You see it, then you buy it? So you PIRATE it, and then sometimes you cover your tracks by buying it legally too?

                      I go to the book store and browse a bit, then buy if I like. I’ve ended up with a couple stinkers, but most of what I buy I like.

                    31. If I see a book that I like, I buy it.

                      So you dont borrow books from friends or loan them to them?

                    32. So you dont borrow books from friends or loan them to them?

                      Believe it or not, I don’t. The only place I borrow books from is the library.

                    33. The only place I borrow books from is the library.

                      Without paying for it?!?

                    34. Without paying for it?!?

                      The library doesn’t charge me, if they started charging I would stop going. However, if a library has a book then the author was paid for that copy of that book (unless it was a donation). If I’m using it, then someone else doesn’t have access to it. If I make a copy of it then return it to the library, I have done something wrong.

                      I know you’re fishing for a ‘gotcha’ here. If you think that you got me for something here, then good on you.


                    35. I know you’re fishing for a ‘gotcha’ here. If you think that you got me for something here, then good on you.

                      Actually, I wasnt. Borrowing books from friends is the exact same thing as borrowing from library (it was paid for once).

                      I just thought you were lying about always buying them. And I was right.

                    36. I just thought you were lying about always buying them. And I was right.

                      Oh noes, you got me. Once in a blue moon I borrow a book from the library. Nice work, detective.

                    37. Software developers, authors, musicians, etc. are all expecting compensation for making their works available.

                      Furthermore, just because you have the expectation does not give you the right. You need more than just an expectation of compensation, you need an actual method.

                      If you go and make your art public and just expect that the magic Art Fairy will leave silver dimes under your pillow… well you’re gonna get fucked.

                    38. If you go and make your art public and just expect that the magic Art Fairy will leave silver dimes under your pillow… well you’re gonna get fucked.

                      Obviously.

                      You need more than just an expectation of compensation, you need an actual method.

                      Like producing a product and putting it up for sale through a retail vendor.

                    39. Like I said, devil is in the details.

                      If the producer does actually put the product in a place where I can access it without paying for it and without violating any other law, then it’s his own stupid ass fault for doing that, I owe him bubkis in that scenario.

                2. Tresspass.

            2. That isnt stealing, it is infringement.

              Words mean things.

              And calling copyright infringement “theft” or “stealing” or “piracy” is about changing the dynamic.

              Calling it infringement and people treat it like it should be treated. As a possibly civil penalty.

              1. And calling copyright infringement “theft” or “stealing” or “piracy” is about changing the dynamic.

                Calling it infringement and people treat it like it should be treated. As a possibly civil penalty

                .

                But content providers and IP rights holders want to—ironically—free-ride off of the 1000s of years of moral opprobrium civilized society has built up against thieves, so they conflate the two.

                It’s infringement, not theft. Sue the guy civilly, throw his ass in state jail for B&E, whatever subspecies of fraud applies to impersonating an MIT student, and get an injunction against him ever accessing the network again.

                But 35 years in the hole is just an obscenity, whether Orin Kerr recognizes that’s the law—he usually does—or not. Aside, has Prof. Kerr ever thought the state went too far in a prosecution? I’ve not witnessed it, though I admit to not reading the Conspiracy religiously.

                Look, the Feds have wanted to nail this guy’s ass against the wall ever since his PACER hack. This case, and the insanely overbroad reach of federal computer and copyright laws, allowed them to do so.

          2. Sneaking into the campus and putting his laptop there was a criminal trespass. And what if MIT had gotten into trouble for their subscriptions being abused like that?

            I think he did commit a crime. But it was a pretty minor one.

            1. Yeah, I absolutely agree that he committed criminal trespass, maybe some others (B&E).

              But since MIT says they don’t care that he ‘stole’ what he did, then he shouldn’t be prosecuted for it.

              If my neighbor takes my car while I’m asleep, fills it up with gas, doesn’t hurt it, and puts it back in my driveway before I wake up, but doesn’t tell me until a week later that he did it. And I decide that I don’t give a crap that he did it, then the state shouldn’t prosecute. Period.

              And if MIT had gotten into trouble, they’d have a pretty good civil suit I think. And they’re more than welcome to it.

              Also if MIT wanted to press charges, then I have no problem with him being prosecuted (obviously not 35 years worth).

              1. There are no crimes against individuals anymore. Only crimes against the state.
                MIT is just the place where the crime occurred. The victim was the state which was violated by this person’s disrespect for the law.

              2. But since MIT says they don’t care that he ‘stole’ what he did, then he shouldn’t be prosecuted for it.

                Did MIT not press any charges?

          3. As said in the other thread about 50 times, stealing computers and ‘stealing’ documents are apples and oranges.

            Exactly. Just as making a digital copy of a copyrighted work is not the same thing as getting a free car from GM (looking at you Tulpa).

            This distinction is true whatever ones views are on IP laws and their legitimacy.

            1. How is it meaningfully different from, say, getting a free book/eBook from Random House or whatever?

              1. Not sure what you are getting at? What’s the difference between a free book and a free ebook?

          4. No. Stealing the documents potentially would deprive MIT of access to JSTORS when they realized MIT could not protect the link and conditions of use.

        4. How about if he’d broken in and made a copy of all their software?

          1. It’s less about the ‘crime’ and more about the fact that the ‘victim’ doesn’t give a crap.

            Sorry for all the scare quotes.

            1. The copyright industry has framed the narrative that making a digital copy is theft-exactly like stealing a car is theft.

              It is simply not. Is it illegal? Yes. should it be illegal? Maybe, although certainly not in the ramped-up form and breadth it is today. Is it the same as physically stealing someone’s car? Not at all.

              1. Moreover, they’ve framed it as if copyright is a given, and not merely legislative fiat.

              2. I actually am on the side of strong IP, and I think it IS the same.

                But if I have a day when I’m holding a promotion to give out free cars to Italian-Americans, if someone comes up to me and says “Hey, I’m Italian!” and I give him a car, at the same time that I give out thousands of free cars to legit, confirmed Italian-Americans, it’s hard for me to get too outraged if that guy turns out to have been Greek.

                JSTOR and MIT were trying to give stuff away.

                Swartz walked in and took some of what they were trying to give away for free. He just took a WHOLE LOT of it.

                1. Fluffy,

                  Even that isnt a good analogy. He was Italian, he just kept looping to the back of the line and got another car each time thru the line.

                  They he built a robot to stand in line millions of times for him.

                  That is a better analogy.

                  1. Yeah, I guess that’s better.

                    I think we should also specify that 95% of the cars here were made by state-paid hacks and parasites using taxpayer funds in the form of special car-manufacturing grants.

                    1. so it was a GM giveaway?

                    2. So basically, he’s Robin Hood.

      2. It is the making a federal case out of this and threatening him with prison where things went off the rails.

        Yeah, and thanks for adding that, because I keep forgetting to mention that. I don’t know why this was in the hands of the feds. But anymore, I’m seeing car-crashes on local freeways being investigated by feds… so that bird has probably flown.

        1. I don’t know why this was in the hands of the feds.

          Commerce clause to the rescue!

        2. He’s copying and making available academic journals. I mean it’s only a matter of time before he does the same thing with state secrets.

    2. making public documents easily obtainable and… public is a worthy activist effort.

      The truly disgusting thing is you can take the DC prosecutors excuse for not prosecuting Gregory word for word, and it applies at least as well to Swartz.

  7. I would love to see a second intertoobz evolve where everything uploaded is peer reviewed data, and managed and marked as such. I’d pay a premium to be able to go someplace and search for factual data on any subject without wading through commentary for a fixed monthly price.

    1. What are you talking about. Everything on the internet is true. Or it wouldn’t be on the internet.

      1. I love that insurance commercial with the hot blond who believes everything she reads on the internet is true.

      2. What are you talking about. Everything on the internet is true. Or it wouldn’t be on the internet.

        This is true. You know what’s true-er? Everything in the newspaper is true, because it’s ink on pulp. And nothing speaks the truth more than ink on pulp.

    2. That sounds nice, but who is doing the reviewing? It would be great for about a year or two. The leftists would take it over and you would be back on the regular internet.

    3. You can try creating an archipelego on the Internet that is based on those principles, but picking the reviewers and keeping them honest is going to be a bear.

      In the end, you’d probably have something that wasn’t much more reliable than the actual Internet.

      1. How does the peer review process work? Is their some sort of process to have your paper “certified” peer reviewed?

        1. It’s “certified” by being published in a journal that claims to subject submissions to peer reviews, and that academics trust the editor’s word that it’s been peer-reviewed.

          Which is not necessarily hard to find out, as you can often just ask around among the more senior faculty in your dept to see if they have ever reviewed or been asked to review for that journal, or if they know someone who has.

          Also, in theory at least, if it’s published by a company that puts out other legitimate peer-reviewed journals (e.g., Springer), you can take them at their word.

          Or maybe not — see Elseiver.

          1. Thx

          2. Usually you recognize the names of the editor(s), who are famous names in your field and you trust their judgment. At least that’s how it works in linguistics. It’s entirely reputation-based, at least in fields which are small enough that most people know each other or one or two degrees of separation further than that.

            1. I had it in my head to write that, but I forgot to. Thanks.

    4. I’ve bought several academic journal articles a la carte from JSTOR. Sometimes they’re asking too much, and I say, “screw it. I’ll look elsewhere.” I’m guessing they don’t need my several bucks if they’re gouging countless libraries for hundreds or thousands per month, but at least it’s sort of free-marketish.

    5. The idea that just because something is peer reviewed, it’s factual… that’s pretty laughable.

      1. The idea that just because something is peer reviewed, it’s factual… that’s pretty laughable.

        As John Ioannidis spent a career showing, in the medical field.

    6. At any rate, it’s called Wikipedia.

  8. Thirty odd comments and no Spaceballs jokes? C’mon!

    1. And someone change the combination on my luggage!

    2. Great, just what we need. A Druish Princess

  9. The sentence he was facing wasn’t any crazier than what they
    have done to medical marijuana providers as described in these very pages.

    1. So, super crazy, then.

  10. Here’s the thing about this case to me:

    I don’t think Swartz was a thief, in the sense that he was stealing academic papers.

    It was JSTOR’s intention to provide the papers for free to people on the MIT network.

    He was guilty of pretending to be an MIT student, more than he was guilty of stealing.

    If Random House decides to make all of their work free to people who hold Williamstown Library cards, and I falsely give my old Williamstown address to the public library folks and get a card and use it to download Random House books, am I “stealing”? Does Random House have a cause-in-action against me? Or is this merely an administrative thing between me and the library?

    1. You have technically committed a crime. It is called theft by deception. Suppose I bought my sister and her family tickets to the Super Bowl. And you and your family showed up and pretended to be my sister and took the tickets. You would be guilty of theft.

      The same thing is happening here. MIT purchased these articles for their students. Swartz pretended to be a student and got access to them. That is no different than you pretending to be my sister.

      1. I don’t think theft applies—he’s not depriving MIT of possession, after all—but certainly some subset of fraud, compounded with unauthorized access and/or copyright infringement, would seem to apply here.

      2. OK, I suppose I can see it as analogous to watching a drive-in movie through binoculars.

        Someone has licensed a copyrighted item for a public performance, and you are accessing it without paying.

        But that’s not really copyright infringement. I’m stealing the price of the ticket from the drive-in owner. I’m not stealing anything from the copyright holder.

        He never really got to the stage of infringing copyright. He may have planned to do it later, but he never got to do it. He stole a trivial amount from MIT. You’d have to calculate what % of the total tuition at MIT was related to the JSTOR subscription. I’m guessing it’s pennies. I bet 10 people a day stole more in dollar value from the campus bookstore.

        1. The binocular analogy is a good one. That or sneaking into a bar that is charging to see a pay per view boxing match. The crime he committed, such as it was, was against MIT. And that is why it should have been at most a state matter.

          1. The binocular analogy is a good one. That or sneaking into a bar that is charging to see a pay per view boxing match.

            Those arent the same. The former is fair game, IMO. The latter is a tort, and could possibly get to the level of trespassing IF they catch you and you refuse to leave. I could possibly see B&E depending on how you got in. But if you just ducked past the bouncer while he was looking the other way, that wouldnt hold.

        2. OK, I suppose I can see it as analogous to watching a drive-in movie through binoculars.

          I dont think that is theft or infringement.

          If I have line of sight to your screen, I dont think enhancing via binoculars is any kind of violation.

          Dont want me doing that? Put up screens in the way.

        3. I’m stealing the price of the ticket from the drive-in owner.

          No, you’re not mr. Obamacare Broccoli Mandate.

          Not buying something is not the same as buying. You are not stealing the price of the ticket from the drive-in-owner just because you didn’t buy a ticket. Just because you didn’t pay doesn’t mean you would have, and even if you would have, loss of revenue is not the same as theft of revenue.

          This is the same sort of derpey logic that says if someone else does your job for less money, they ‘stole’ your work.

          By getting around paying you and choosing not to pay you, they may or may not be committing another crime depending on how they do it – but they aren’t stealing from you by not buying.

          You cannot STEAL by NOT BUYING. Otherwise every day I don’t buy a vacuum cleaner I’m stealing $100 from Hoover.

    2. I think the legal terminology is: “Theft by Deception”.

  11. Unfortunately, this is nothing new. Except, of course, for the fact that he committed suicide. Many of the former Cypherpunks group were hounded by government investigations, and some, like Jim Bell, were arrested, convicted and imprisoned. Bell, the author of Assassination Politics was imprisoned for tax evasion. A “crime” most people would just be fined for. Phil Zimmerman was investigated for violating the Arms Export Control Act. Assange continues to be fucked with. People may not realize he was a co-author of Rubberhose file encryption.

    Because of these people, the internet remains relatively free. Just don’t fuck with anything related to IP….unless you are using Tor or I2P. I guarantee, if Tor gets shutdown, it will be because of IP. Oh sure, the government may claim it’s drugs and CP.

  12. Anonymous Plans to Defend Aaron Swartz’s Funeral from Westboro Baptist Church Protests.

    http://www.opposingviews.com/i…..h-protests

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