You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright
from the now-that's-interesting... dept
As we noted yesterday in our discussion of the indictment against Aaron Swartz, US Attorney Carmen M. Ortiz played up the standard, incredibly misleading, claims about how he was engaged in "theft." It's a standard claim from copyright maximalists that downloading anything without permission is "theft," even though the law is clear that infringement and theft are two different things. But... in reading and discussing this, we missed out on one very important point, that Mike Wokasch spotted: with all the things in the indictment, one thing that's missing is any copyright infringement claim. If you're going to talk up the "theft" angle, why not at least include a copyright infringement claim? Perhaps it's because the government knows that it would lose on that claim badly. Once you're on the MIT network, you are allowed to download these works. Thus, there's no infringement at all. That's a big problem for much of the case against Swartz, but the feds seem to think they can use the circumstantial evidence unrelated to the actual computer usage to convict Swartz by inference.So, without even an allegation of copyright infringement, you really have to wonder where US Attorney Carmen M. Ortiz gets off claiming publicly that Swartz was involved in "theft." The indictment doesn't indicate any unlawful taking at all, even for those who (falsely) consider copyright infringement to be the equivalent of theft.
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Filed Under: aaron swartz, cfaa, copyright, demand progress, hacking
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If you sexually violate the information then it's just weird.
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Hacking does not require a copyright factor
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Re: Hacking does not require a copyright factor
I really can't see the establishment of value without copyright. Possibly she could argue that the value of the service provided by JSTOR is sufficient. However, since he had access to JSTOR legally, that seems like a stretch. Of course they don't have to allege criminal infringement in order to use copyright to establish value, but they do have to prove value and it seems like they would have to prove copyright infringement to do so.
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Re: Re: Hacking does not require a copyright factor
The wire fraud is more tenuous and will depend on interpretations of the JSTOR terms of use license for the purpose of downloading the information in question. It'll be a harder bit to prove, but it's also a dangerous charge. (And its common when there are fraud claims involving, well, wires like the phone or internet.)
The worst part, however, is that both affected parties (MIT and JSTOR) appear to have resolved the issues to their satisfaction with Aaron, but the US Attorney's still pursuing the matter. Don't we have more important crimes to go after?
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Re: Re: Re: Hacking does not require a copyright factor
This seems interesting. Could you elaborate on the relationship between the JSTOR Terms of Use and wire fraud?
Maybe I read the indictment wrong, but it looks three of the four counts require the government to prove that he acquired something of value. Count I and II are the fraud charges, so they require the acquisition of something of value. One element of Count III requires the information to be worth over $5,000.
Can they prove that the information is something of value without copyright?
Of course that still leaves Count IV, which requires them to prove that the damage exceeded $5,000. I'm assuming they would do that by valuing downtime for JSTOR and/or lack of access to JSTOR by MIT, so that seems more tenable. But that knocks his punishment down to 5 years, rather than the aggregate 35 years.
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Re: Re: Re: Re: Hacking does not require a copyright factor
It is tenuous, but it depends on the terms of use agreement.
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RIAA "value"
Document ABC costs $1 per download, and "potentially" 300 people wouldn't download it if a free version existed. Multiply $300 * 4.1 million and you have over $12 million dollars of "infringement". ;)
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Re: Hacking does not require a copyright factor
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Re: Re: Hacking does not require a copyright factor
One of the basic principles of public speaking is to target your audience. If you know that the word "theft" has emotional weight to your target audience (the public), they you'll throw it around as much as possible. It doesn't mean that that terminology is used when they actually present the legal case.
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Re: Hacking does not require a copyright factor
It's true that it's not relevant to any of the charges in the indictment, but that's not the point.
One would have thought they would have also tried to obtain an indictment under 17 USC 506 for criminal copyright infringement given the nature of the things allegedly stolen.
There are plenty of reasons they might not have done so. Indeed, in this case, there seem to be facts that really mitigate against that charge. My original tweet was merely a comment on the difference between this case and another.
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Re: Hacking does not require a copyright factor
That wasn't my point at all. I wasn't saying you needed to show copyright infringement to prove the hacking charges. Just pointing out that they keep talking up "theft" and the obvious claim there is that there was some sort of infringement. But they don't make that charge anywhere.
Normally, you don't see anyone claim that garden variety hacking to access a system is "theft." So I was just pointing out the odd use of "theft" when they weren't even using a copyright claim.
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Re: Re: Hacking does not require a copyright factor
People often equate unauthorized access with theft, yet nothing has been "taken."
Nina Paley's "Copying is not theft" video is my favorite explanation of why folks saying copying is theft are wrong: http://www.youtube.com/watch?v=IeTybKL1pM4
And, for the record, I wasn't saying you meant Copyright was necessary to the charges. Just trying to provide context.
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Re: Re: Hacking does not require a copyright factor
Understood. I guess I'm so used to ignoring the bloviating blowhards who talk to the public and instead focusing on the legal aspects that the conflict didn't really strike me as unusual.
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i mean... if gaming the system is illegal, this US attorney should get locked up. No, ALL attorneys should be locked up
cripes. it's not even like this Aaron guy was fucking with anyone's right to LIBERTY; unlike this attorney who is twisting the words and the law to take away a man's freedom
Swartz wasn't fucking with anyone's [copy]rights at all.
this aggression will not stand man
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Ok so? Breaking a license agreement is a CIVIL matter, not a 35 year felony. That is a matter between 2 private parties.
"Generally speaking, a license agreement between a company and a user trumps copyright law."
Wrong. Not only wrong, CATEGORICALLY wrong. You cant sign away rights that contravene the law. Otherwise, slavery would still exist and be legal. Just because you sign an agreement with someone doesnt mean they can put ANYTHING they want in there. Can you sign a contract to murder someone? No, because murder is against the law.
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Generally speaking, breaking a licensing agreement is a civil matter. However, if breaking that licensing agreement leads to unauthorized access and use of a computer system in violation of the Computer Fraud and Abuse Act, then it may lead to criminal liability.
So, while the commenter you have responded to is wrong, they are not categorically wrong. You're comment, however, is wrong.
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You're comment, however, is wrong.
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Not quite true. There are certain aspects of copyright that you can't "license" away. Some you can, but others you can't.
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You can still have a copyright infringement when the licensee exceeds the scope of the license. See, e.g., Jacobsen v. Katzer. The real question is whether the limitations on the right to access the material were a condition of the license or a mere contractual covenant. See, e.g., MDY Industries, LLC v. Blizzard Entertainment, Inc.
As I understand it, the ToS expressly provided that a user cannot download all of the works in a publication, rate-limited the number of downloads, etc.
Whether one or more of those meets the Jacobsen/MDY obligation or condition test is certainly a question.
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> a company and a user trumps copyright law.
Really?
A license, or for that matter, a contract can trump law?
So I could write you a license, or we could form a contract for you to steal my neighbor's tires?
Don't like that because it involves a third party? How about this?
Can Apple (or Microsoft) write a EULA that demands your firstborn child? After all, it's an agreement, to obtain a license, between you and Apple.
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You are correct. Here's a comment from the Ars Technica board that elaborates:
"MIT had a license for free access to JSTOR, but everyone at MIT has to obey the JSTOR TOS. I quote:
"2.2 Prohibited Uses. Institutions and users may not:
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f. undertake any activity such as computer programs that automatically download or export Content, commonly known as web robots, spiders, crawlers, wanderers or accelerators that may interfere with, disrupt or otherwise burden the JSTOR server(s) or any third-party server(s) being used or accessed in connection with JSTOR;
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i. download or print, or attempt to download or print: an entire issue or issues of journals or substantial portions of the entire run of a journal, other than on an isolated basis because of the relevance of the entire contents of a journal issue to a particular research purpose; or substantial portions of series of monographs or manuscripts;"
Since he was violating JSTOR's terms of service, he didn't have a copyright license, which means every single paper downloaded was infringing copyright (copying without authorization). As those collections of papers are extremely valuable, that almost certainly qualifies for criminal copyright infringement.
That said, I think it's pretty stupid to treat it that part of his activities as anything more than a civil matter between him and JSTOR, and that the law should be changed. As it stands, though, he's blatantly in violation of criminal statutes, so it isn't surprising he's been charged.
Charging him for breaking into MIT property is reasonable, of course, since he did (and obviously knew what he was doing wasn't allowed, at that, what with hiding his face from a security camera)."
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Since he was violating JSTOR's terms of service, he didn't have a copyright license, which means every single paper downloaded was infringing copyright (copying without authorization)
This is a square/rectangle issue. Infringing copyright IS copying without authorization, but copying without authorization is not necessarily infringing copyright. This commenter acts as though the two are one and the same, even though they are clearly not (as a simple example, any time you make legal fair use of a work you are 'copying without authorization' but it is not infringement)
Now, it seems certain he was violating the TOS, which is a contractual issue (or, as the feds are apparently claiming, a hacking issue) - and he may, separate from that, also have infringed on copyright (depending on the copyright status of the docs he downloaded and what he planned to do with them). But the fact that he violated the TOS does not automatically mean he infringed on copyrights.
Think of violating TOS as the rectangle, and infringing copyrights as the square.
p.s. - it's hip to be square. ;)
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OK. I'll type slowly so you can follow along. The point was that the use of copyrighted documents was conditional upon complying with the terms of service. Obtaining such docs in violation of the terms of service and the agreement is void and the recipient is infringing.
Hopefully, this one treatment will drive you back into remission.
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Yes, by disobeying the TOS he forfeited the limited license that TOS granted him. Nevertheless, that does not automatically make his actions infringing - he could still, for example, make a fair use defence (not that I think that's likely). The point is that it has to be separately demonstrated that he was infringing on copyright - violating a TOS does not automatically make something infringement. I'm not trying to say he didn't infringe any copyrights here - it's likely that he did - I just object to the casual conflation of "copying without authorization" and "copyright infringement" since the two are not the same thing.
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From Wikipedia: "In Internet slang, a troll is someone who posts inflammatory[citation needed], extraneous, or off-topic messages in an online community, such as an online discussion forum, chat room, or blog, with the primary intent of provoking readers into an emotional response[2] or of otherwise disrupting normal on-topic discussion."
And while I can be inflammatory, I am not extraneous or off-topic. On the contrary, I am maintain 100% fidelity to my outlook. As far as inflammatory goes, what can I say? I have a visceral reaction to the lies, bullshit and distortion spewed by many of the nincompoops and free loaders who come here with their self-serving, self-entitled drivel. I'm not some pussy who parses words or is afraid to mix it up. But I also like to have some fun with it, otherwise the back-and-forth is reduced to shrill canned arguments and tired slights which is really boring. So, sorry if you have a problem being referred to as an annoying anal fungus (you generally are) or being a loyal member of the Order Of The Brown Nose, basking contentedly in the reflected glow of Masnick's minor celebrity. Please feel free to call me a "dickhead" "Troll" or "prick". After all, I've seen your spiffy poetry reading so there's really nothing you can say to me that will sting.
In all seriousness, I sometimes respect your point of view and acknowledge that you and others have noted some legitimate concerns in the course of our verbal jousting. Nonetheless, you are for the most part- totally full of shit- and I look forward to pointing out examples of that on an as needed basis. And I'm certain you'll do the same for me.
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Funny, just this week I've seen you completely disappear from a couple of threads in which someone proved you wrong, like when you insisted that Google doesn't have a separate news crawler bot (yes, we can all tell that was you). You were also quite roundly humiliated on your assertion that Nina's video about GEMA was trivial and pointless, and you handled that with all the grace and humility of a fat redneck stuck in an outhouse.
Whenever we raise those "legitimate" points you mention, you can't handle it so you run - either "away" or "in circles" depending on your mood.
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FYI, your only legitimate point to date have been that piracy is substantially (but not entirely) a symptom of unmet market demand. And I have not been shy in expressing my belief to people not involved in these discussions that legislation and regulation cannot be a substitute for rolling out more a la carte services like Hulu Plus, Netflix, etc. And I haven't run away or in circles. A number of times, I've given my ship analogy. The corporations and licensing arrangements are far more complex, intrenched and bureaucratic than you can imagine. It's analogous to turning a cruise ship rather than a speed boat. It will take time. But lack of a timely response does not excuse people taking something that doesn't belong to them.
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Ah, the wonderful culpable deniability that anonymity provides. Sorry, not going to continue this if you are going to wash your hands of past errors.
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This is about the Computer Fraud and Abuse Act
The use of the word theft to refer to Aaron's actions is simply because we misuse the word theft as it applies to non-property situations. (I also talk about this in the above paper and other papers I've written.)
So it's not about theft, it's about computer fraud and misuse. This is statutory and does not require elements of theft.
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Re: This is about the Computer Fraud and Abuse Act
The original Techdirt story has the indictment in it here: http://www.techdirt.com/articles/20110719/13282015167/feds-charge-aaron-swartz-with-felony-hacking-d ownloading-ton-academic-research.shtml
A good person to comment on it would be Jennifer Granick�I want to recall she does more on the criminal side than other commentators.
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More TLDR followup
On a side not about the CFA, it's the law that nailed the kid hacker in the oft-panned and highly unrealistic movie "Hackers." Aaron, Zero Cool, and Crash Override . . . all in the same boat.
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Re: This is about the Computer Fraud and Abuse Act
The discussion begins on Page 21 and give a brief overview of the law.
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Worst yet...
That is what this is, they don't have any way to charge him on "Copyright theft" even though they think they should be able to do so, so they are charging him for hacking instead.
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Test Run
MIT and LSTOR both asked for charges to be dropped, so any convictions are just gravy to the prosecution.
We'll know for sure if they rush this through the courts.
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Where does the law say infringement and theft are different.
Where does it say that Mike, ???
If it is so clear, you will be able to provide a reference from "the law" that says that, otherwise you're just making shit up.....
"infringement" is breaking a law or rule, if copyright is a law then breaking copyright is breaking a law, and breaking a law, theft is a law, and therefore theft is infringement of said law...
(it's not that hard !!!!!)
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Re: Where does the law say infringement and theft are different.
No, there's probably no statute explicitly stating "Copyright infringement and theft are different" just like there's no statute saying "Jaywalking and murder are different" - that doesn't mean they are the same.
Please, go find me anybody who committed copyright infringement and was then charged with theft. Can't? Yeah, that's because they are completely unrelated as far as the law is concerned.
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Re: Where does the law say infringement and theft are different.
Hmm... Lemme try that... "Fruits" are a tasty snack, if Apples are a fruit then Apples are also a tasty snack, and fruits, Oranges are a tasty fruit snack, and therefore Apples are Oranges.
"(it's not that hard !!!!!)"
D'AW, really? Neither is fucking. But it sure is messy. I had to clean my mind up after that fuck. ...
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Re: Where does the law say infringement and theft are different.
http://www.techdirt.com/articles/20100913/22513210998.shtml
You tried to argue the point there, too, and failed miserably as usual.
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Re: Where does the law say infringement and theft are different.
if copyright is a law then breaking copyright is breaking a law,
theft is a law,
and therefore theft is infringement of said law...
---------------
Also indecent exposure is a law
and therefore indecent exposure is infringement of said law...
Irrational connections are fun!
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Re: Where does the law say infringement and theft are different.
Also what was taken? the ability of JSTOR to continue to distribute free material again?
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Bottom line: The person used an MIT "guest" account without authority to do so. When it became apparent to JSTOR and MIT that something was amiss and locked out the "guest" IP address, he proceeded to engage in a game of cat and mouse by creating new "guest" IP addresses, spoofed MAC addresses, broke into a closed area at MIT to engage in a bit of re-wiring, etc., etc., etc.
If ever there was a classic case of thumbing one's nose at the law, this is surely it. Perhaps a stint being incarcerated, and s stiff fine, may give him pause to reconsider the wisdom of his patently childish behavior.
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Should I assume you didn't mention it because there was no damage at all?
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"Damaging" the MIT computers?
I did read charge 4 again just to make sure, but I don't see anywhere in there where there was any claim that he "damaged their COMPUTERS".
There was a "disruption of service" because he was using their servers at 100% which is what I think they are referring to as "damage" (basically degrading there network response time). More like a DOS attack than physical damage.
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Larceny = theft = infringement = illegal activity = crime
But it's a word, just a word, it does not at all change the ACT.
It's theft, it is an act that is against a law, therefore its a crime, and you have 'infringed' the law, by commiting a CRIME.... the crime of theft.
I know you will now redefine what "copyright" is, so you will say that taking something as a copy is not taking the copyright of the item.
But we all know that is not true, (we'll everyone it seems apart from a few here), you are stealing the "RIGHT TO COPY", not the copy yourself, and why Mike you cannot work that out is beyond me. Surely you are not that stupid, and if not you must be willing to lie.
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Re: Larceny = theft = infringement = illegal activity = crime
out_of_the_blue, take notes.
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Re: Re: Larceny = theft = infringement = illegal activity = crime
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Re: Larceny = theft = infringement = illegal activity = crime
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Re: Larceny = theft = infringement = illegal activity = crime
Also ... "accendental" ... really?
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Re: Larceny = theft = infringement = illegal activity = crime
Does this really need to be explained to you?
For example, publishing false statements about someone is "libel" under the law. Now, using a dictionary, you could also call those statements "fraudulent" since that word can just mean dishonest. But that doesn't mean that "libel" and "fraud" are suddenly identical under the law.
Think your brain can manage that? Good. Now stop trying to obfuscate the issue with silly linguistic games.
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Re: Larceny = theft = infringement = illegal activity = crime
and surely you are a whole new breed of stupid
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"Accidental death sounds better than murder"
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Re: Larceny = theft = infringement = illegal activity = crime
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bend space time?
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They also didn't charge him with murder
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Re: They also didn't charge him with murder
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Getting on with German authorities, German newspapers, German press, things like that might have a hope. Otherwise, the yelling about it (or making a video about it) is sort of meaningless.
As for inciting a revolution, all I can say is she isn't inciting much of anything except perhaps a few snickers at this point. It seems the motto is "ready, fire, aim".
Seriously? "Its a fail" You think that is me talking? You should know by now I don't use trite, nerd-chic words and phrases like "conflating" "It's a fail" "troll" or any of the other buzz words that clearly mark one as a former dodgeball target and wearer of "kick me" signs. I'm old school. So, believe what you like or run your theory past the folks in your LARP league and see if they agree.
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