Copyright Alliance Takes On The Aaron Swartz Case With A Post Full Of Bad Analogies

from the again-with-the-'copying-is-exactly-like-stealing'? dept

As the Aaron Swartz saga continues to play out and more information rolls in, the question has been raised as to why no allegations of copyright infringement have surfaced. All this discussion of "theft," especially in relation to digital "goods" usually brings the copyright patrol right up to the virtual doorstep in less time than it takes to say "fair use."

Well, our wishes have been granted (apparently). Copyright Alliance has posted its take on the situation, and it's bringing all the tried-and-patently-false analogies it could fit into a misguided attack post -- a post that still somehow manages to be about "copyright" without actually uttering the word "copyright."

Let's get started. After running the down the list of charges, Sandra Aistars takes on Demand Progress' now-famous response to the indictment, in which Executive Director David Segal compared Swartz's actions to "allegedly checking out too many books from the library:"

Really? It is in fact nothing like checking out books at the library. Checking out books at the library involves walking through the front door (or legitimately signing on online) and presenting a library card (or legitimate online credentials). This is more like sneaking through a library window in the middle of the night and making off with the entire non-fiction section.

Really? It is in fact nothing like making off with the entire non-fiction section. Even the "sneaking in through the library window" analogy is bad. Swartz accessed these documents from a university licensed to access the JSTOR system. This is more like Swartz walking through the front door and making copies of everything on the shelves and replacing everything exactly where he found it so that other patrons (and certain domineering librarians) would have no trouble finding what they needed.

Aistars then goes on to discuss the troubling aspects (as she sees it) of Swartz's actions, especially in relation to his work with Demand Progress:

If the allegations prove true, the episode is revealing in numerous respects. First, of the mindset of those who engage in intellectual property theft. The indictment states that Swartz "intended to distribute a significant portion of JSTOR's archive of digitized journal articles through one or more file-sharing sites." Sound familiar? This is no different than those who steal other kinds of copyrighted works and monetize them through advertising or through subscription fees, only in this instance the victims are a non-profit and educational institution.

Oh, but it is different. For starters, these digitized journal articles are locked up and provided only to certain members of the public at extremely high prices. Considering that the oft-stated purpose of copyright is to "promote the progress of science and the useful arts," it makes absolutely no sense to keep these valuable works tied up behind academic paywalls.

The other difference is that freeing these documents would not have been done for a profit, but rather to spread this wealth of information for the benefit of many, rather than keeping it in the hands of the few holding the keys.

The next part of her argument is ludicrous speculation, especially as Aistars wanders away from Swartz and begins attacking "infringers" as a whole:

These individuals are not "setting information free" as they like to proclaim. And they are not "removing the middlemen." They are flat out stealing the work of others and using it to prop up their own commercial endeavors. It is the perfect example of the unapologetic belief that what's mine is mine, and what's yours is also mine, and if I can get some venture capitalist to cash me out for millions or billions of dollars based on the traffic a library comprised of someone else's lifetime of work has generated to my site, so much the better.

But nothing has been stolen. The university still has all its documents. So do the gatekeepers. To assume Swartz was looking to profit from this interaction is to assign him a motive that fits your particular agenda, and furthermore, the only reason Aistars assumes this is because she assumes this of all infringers. In the Copyright Alliance view of the world, people only infringe for profit. This narrow view extends to the very creative artists Copyright Alliance claims to represent, who apparently only create in order to make money.

She follows this assumption up with claims that stray even further from reality, suggesting that to make this information "free" would undermine JSTOR's efforts and that, without JSTOR's stranglehold on academic documents, further academic research would slow considerably, if not come to a complete halt:

What JSTOR has done by investing in, developing, publishing and accumulating this research in a searchable form, and what MIT has done by paying license fees for the subscription, ensures there is more research, more analysis, and more scientific, peer-reviewed information available to benefit all of us.

I'm sorry but I'm not able to follow that money trail. JSTOR scans documents and sells them to others. Almost all writing for these published documents is done for free. If it's already being done for free, how does freely distributing this information remove the impetus to do more? Add to that the fact that most research is government-funded, and it looks like JSTOR's only true purpose is to stand between the public and the research they didn't actually "invest" in. It's just another intellectual monopoly dressed up in an educator's costume.

If you read Aistar's post, you'll notice that copyright infringement is never mentioned specifically, but the arguments remain the same, despite the specifics of Swartz's indictment. All the old favorites make an appearance: If someone copies something, it's as good as being gone forever. People only copy to profit from it. If this copying is unchecked, no one will have a reason to make originals, etc. The dance around the term "copyright" is delicate, but the partners still look the same.

Filed Under: aaron swartz, cfaa, copyright, demand progress, hacking
Companies: copyright alliance

The Lack Of A Legal Or Moral Basis For The Aaron Swartz Indictment Is Quite Troubling

from the what-are-the-feds-up-to? dept

There have been a lot of interesting discussions about the Aaron Swartz indictment, but I wanted to highlight a few key points on this, starting with an analysis of the actual legal points by Max Kennerly, who points out that the actual charges don't seem to hold up:

I'm not going to take the wire fraud claim under 18 U.S.C. § 1343 seriously. They’re going to have a lot of trouble proving Swartz “devised or intending to devise any scheme or artifice to defraud” by evading the IP restrictions imposed by JSTOR. As the Department of Justice’s Attorney Manual (USAM) notes, most courts interpret “defraud” as meaning “a scheme to defraud another out of money.” More from the USAM about the “specific intent” to defraud here.

The 18 U.S.C. § 1030(a)(4) claim requires the prosecutor show Swartz “knowingly and with intent to defraud, accesse[d] a protected computer without authorization, or exceed[ed] authorized access, and by means of such conduct furthers the intended fraud and obtains anything of value.” The indictment claims the papers were “things of value,” but they’ve got the same problem: no intent to defraud. Bear in mind we’re talking about a computer hacking statute; the statutes don’t all just create liability for improper access, they create liability for specific “hacking” scenarios. Section (a)(4) was meant to prosecutor individuals who stole information for the purpose of fraud. Swartz, a long-time information activist, certainly didn’t download millions of research papers from JSTOR with the intent of defrauding people about Group Theory. That claim is likely going to lose.

That's just a taste. He goes through the full list of claims and basically finds all of them wanting from a legal basis.

But what I thought was more interesting was the way Kennerly opened his analysis, more by highlighting the moral question in the indictment. He starts out by quoting the famous speech by former Supreme Court Justice (and Chief Nuremberg Prosecutor) Robert Jackson about the importance of discretion from prosecutors, noting how a prosecutor can effectively destroy someone's life just by investigating them, and how important it is that prosecutors use that power judiciously, and only for the benefit of society. And then Kennerly notes:

I don’t see what societal interest Carmen Ortiz think he’s vindicating with the Swartz indictment. According to Demand Progress, JSTOR already settled their claims with him. What more needs to be done here? The “criminal violation” here arises not from any social duty — like, you know, our society’s communal prohibition on murder — but rather from Swartz “exceeding the authorization” imposed by JSTOR on its servers. Prosecuting Swartz criminally makes no more sense than prosecuting banks or telecommunications companies for violating their consumer agreements, and we all know that’s not going to happen any time soon.

Along those lines, there are two other discussions going on that are worth highlighting. Kevin Webb points out that pretty much anyone doing serious academic research these days almost certainly has to violate some sort of federal laws to do so, mainly because of the ridiculous setup of academic journals which basically lock up all kinds of research -- especially government-funded research, that other researchers need to build on:

I’ve lost count of how many hours I’ve spent sitting in basements of academic buildings, breaking federal laws in the pursuit of answers. And I was reminded of my colleagues who still spend their days painstakingly scraping data off the web–sometimes legally sometimes not–the name of academic inquiry.

None of us want to break the law. It’s simply that we don’t have a choice.

The mechanisms for sharing academic discourse are broken. They barely even function as systems for connecting interested parties within existing disciplines. Ask just anyone who spends their career writing and consuming scholarly work and you will hear a litany of complaints about how poorly suited the academic publishing industry is to modern day collaboration.

Of course, Webb's main point is in talking about copyright law and, as we've noted, the feds have carefully avoided using copyright law in its claims against Aaron, in large part because those claims are even weaker than the claims they're already using.

Separately, there's a slightly different, but important view from Tim Lee, who points out that Aaron Swartz's form of activism is reckless, and tarnishes the good work of others advocating for open research.

But the more lasting cost of Aaron’s actions will likely be to the reputation of the open access movement. Open access advocates have the natural high ground and are gradually winning the debate over the future of academic publishing. Change comes slowly, but things have been changing. Aaron’s actions are likely to slow that progress by allowing the bad guys to lump open access advocates in with malicious clowns like LulzSec. The incident makes JSTOR look like an injured, even magnanimous, party and gives them an excuse to make their policies more restrictive.

I actually think the lasting impact could be even more far reaching. Thanks to Aaron's role in founding Demand Progress, this move is unfortunately being used to tar and feather all of Demand Progress' efforts. We've already seen indications that supporters of PROTECT IP are now using the indictment to suggest that the approximately 60,000 letters sent via Demand Progress' website in opposition to PROTECT IP should be discounted. Never mind the fact (again) that Swartz isn't even being charged with copyright infringement, and the issue is totally unrelated to PROTECT IP, the lobbyists are using the whole situation to paint the entire protests against PROTECT IP as being in support of "piracy." This is unfortunate and inaccurate, but it's how politics works.

That being said, I'm not sure I completely agree with Tim on whether or not Swartz's actions were quite as "counterproductive" as he makes them out to be. I've already explained (earlier today in fact!) how counterproductive hacktivism can be in many cases, but I'm not sure I see it in Swartz's case. Now, to be clear, this is based on the belief that Swartz wasn't actually planning to release all the works he downloaded. If, however, evidence shows that he really did intend to distribute all these works, as alleged by the government, then I'm more inclined to agree with Tim. But, if as others have suggested, Swartz was using this to do additional research on open access/corruption issues, it's much more difficult to see why this is so problematic.

Activism works because it pushes boundaries. Swartz may have a natural inclination to stick his middle finger up at authority when it gets in the way of things he believes should be more open, but that's kind of how activism works sometimes. I don't agree with the DDOS attacks of Anonymous, because they don't seem to have much of a point beyond "hey, we don't like these guys/these policies." But Swartz's activism always had a direct purpose and a clear statement and basis. And I don't consider that, by itself, to be reckless. At best, in this case, I can see how there might be a (physical) trespassing charge for Swartz for sneaking into a building in which he did not belong. But that's a minor issue. All the rest of the stuff seems like a more vindictive attack by the government for not liking Swartz and the way he goes about his activism.

Filed Under: aaron swartz, cfaa, demand progress, hacking

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.

Filed Under: aaron swartz, cfaa, copyright, demand progress, hacking

Feds Charge Aaron Swartz With Felony Hacking... For Downloading A Ton Of Academic Research

from the how-dare-he! dept

Well, the big story making the rounds today has been the charges filed against Aaron Swartz by US prosecutors for violating the Computer Fraud and Abuse Act -- a law that is all too often been abused by the feds to attack people they don't like. Wired News has the most comprehensive coverage as far as I can tell.

If you're unfamiliar with Aaron, while most of the reports refer to him as a co-founder of Reddit (which is a bit of a stretch as he was actually merged into Reddit as part of an early Ycombinator program) and as the founder of Demand Progress, I remember him from way before that -- back when he was a teenager and helped author the RSS 1.0 spec.

As for the specifics of the case, it's still a little hazy. The full indictment is embedded below, but the story being pushed by the feds is that Aaron maliciously hacked into JSTOR, a non-profit organization that hosts academic journal articles, via a computer room at MIT and then downloaded millions of records, bringing JSTOR's servers to a screaming halt. Believe it or not, the indictment directly claims that he "stole" these articles, despite them being offered up for download via open access on various university campuses. He didn't "steal" a damn thing.

Demand Progress paints a very different portrait of what happened, pointing out that he was downloading works that appeared to be authorized and that the complaint seems to really just be that he downloaded too much:

“This makes no sense,” said Demand Progress Executive Director David Segal; “it’s like trying to put someone in jail for allegedly checking too many books out of the library.”

“It’s even more strange because JSTOR has settled any claims against Aaron, explained they’ve suffered no loss or damage, and asked the government not to prosecute,” Segal added.

James Jacobs, the Government Documents Librarian at Stanford University, also denounced the arrest: “Aaron’s prosecution undermines academic inquiry and democratic principles,” Jacobs said. “It’s incredible that the government would try to lock someone up for allegedly looking up articles at a library.”

JSTOR, itself, put out a statement that, at the very least, suggests that after they talked to Aaron and confirmed he wasn't going to release the data he downloaded, that that was all they cared about:

We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified. We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.

The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office.

It's not clear, then, how the Feds became involved in the first place. It's entirely possible JSTOR alerted them originally, and then the investigation went from there. From the details, it seems more likely that MIT may have reported the situation to the feds.

As far as I can tell, the crux of the argument against Swartz is that he violated the JSTOR terms of service, specifically the part about automated downloading, which in the minds of the feds, makes you a felon who can face up to 35 years in jail and $1 million fines. There's a lot of fluff around that violation of terms of service, about how he "broke into" an MIT computer writing room and covered his face with a bicycle helmet. But, really, that's all to set up the claim that he knowingly was getting around the terms of service and certain technological measures that JSTOR had put on its system to avoid such mass downloads.

It doesn't looked like Swartz actually "hacked" into anything. He went onto MIT's campus and logged in as a guest, as MIT allows. Now, it does appear that JSTOR and MIT took somewhat weak efforts to block him from mass downloading JSTOR works, and Aaron took rather trivial measures to get around that (change the IP, change the MAC address). The government is using that to suggest malicious intent.

But what was Aaron actually doing this for? I imagine that will come out soon enough. The government claims that he "intended to distribute a significant portion of JSTOR's archive of digitized journal articles through one or more file-sharing sites." That may be possible, though JSTOR says that Aaron had already promised the works would not be distributed. It's important to note that Aaron has a long history of being involved in open access and open records movements, and was investigated by the feds once before for doing something similar. In that case, he set up a program to download legal documents from PACER, which are public documents, to post them on a free internet service. That case went nowhere, of course, because those documents are public. Separately, in the past, Aaron has gone through academic research to help with research papers on potential conflicts of interest in research funding. I have no idea what he was trying to do here, but it seems likely that it had to do with more open records research. Perhaps he was trying to open up works that were funded by federal dollars?

Either way, a felony indictment and threats of 35 years in jail and $1 million in fines seems ridiculously excessive and vindictive when you consider what he actually did here: which was download 4.8 million academic articles via a network that allowed such downloads. Yes, he used automated means barred by the terms of service, and yes, after being barred a few times, he worked out how to get around that. But it's hard to see how any of that really deserves felony prosecution for computer hacking, with totally bogus claims from the feds about how "stealing is stealing." He wasn't "stealing" anything or you would have charged him with theft. Actually, the stealing is stealing comment from US Attorney Carmen M. Ortiz is so chock full of wrong, it deserves special mention:

Stealing is stealing whether you use a computer command or a crowbar and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away.

Downloading data made available on a network is not "stealing." And he made copies of documents. He did not "take" them. JSTOR still had the documents. And, JSTOR doesn't seem to be acting like a victim of "theft" here. It certainly looks like Aaron did some things that were questionable in how he accessed this data. But does it raise to the level of a federal indictment for criminal hacking? That seems like a huge, huge stretch.

Filed Under: aaron swartz, cfaa, demand progress, hacking
Companies: jstor, mit