Justice Dept. Still Under Pressure for Answers About Swartz Prosecution
Influential lawmakers on Capitol Hill aren’t letting the Justice Department rest after the January suicide of an Internet activist.
Earlier this month, friends and supporters of Reddit co-founder Aaron Swartz gathered in Washington to eulogize his life and to call for changes to legislation that federal officials used to prosecute him – two years after the beginning of an ordeal that ended with a tragic loss.
Aaron Swartz, a 26-year-old computer programmer and cyber activist, faced up to 50 years in prison and a $1 million fine for gaining entry into a closet at the Massachusetts Technology Institute and connecting a laptop to the university’s network to download millions of articles provided by the nonprofit JSTOR – a subscription-only service for distributing academic and literary journals.
On July 4, 2011, federal prosecutors charged Swartz with four felony counts: wire fraud, computer fraud, theft of information from a computer, and recklessly damaging a computer. A superseding indictment filed last year would increase the number of felony counts from four to 13.
Swartz turned over hard drives containing millions of documents to federal enforcement officials, and JSTOR declined to pursue any civil litigation against him.
Nevertheless, the U.S. attorney for Massachusetts, Carmen M. Ortiz, refused to drop the charges, saying “stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data, or dollars.”
The case was brought under the Computer Fraud and Abuse Act (CFAA), a federal law passed in 1984 to enhance the government’s ability to prosecute hackers. The law makes any unauthorized access into a protected network or computer a federal crime and permits harsh penalties for those convicted. In addition, failure to adhere to the terms of service that websites, applications, and Internet service providers ask their users to accept is considered a form of computer fraud that can be prosecuted as a felony.
The Wall Street Journal reported that prosecutors offered a plea bargain to Swartz. If he pled guilty to the charges, he would receive a sentence of 7-8 months in jail, but if the case went to trial and Swartz was convicted, prosecutors would seek a prison sentence of at least 7 years.
For a year and a half, Swartz had been under indictment, which according to his girlfriend had brought mental and emotional exhaustion upon him.
Taren Stinebrickner-Kauffman, girlfriend of the late Swartz, made clear in a blog post her belief that Swartz did not take his life because of depression.
“I believe Aaron’s death was caused by exhaustion, by fear, and by uncertainty. I believe that Aaron’s death was caused by a persecution and a prosecution that had already wound on for 2 years (what happened to our right to a speedy trial?) and had already drained all of his financial resources,” wrote Stinebrickner-Kauffman in a recent post on her Tumblr.
Stinebrickner-Kauffman began a White House petition to fire Assistant U.S. Attorney Stephen Heymann, one of the leading prosecutors involved in Swartz’s case. The petition has already cleared 25,000 signatures, but it will need at least 100,000 to elicit a response from the White House. A similar petition started on Jan. 13 to remove Carmen M. Ortiz has over 50,000 signatures, which meets the previous threshold of 25,000 signatures – changed by the administration on Jan. 15 to the higher minimum.
Swartz’s death has not only prompted responses from progressive and activist groups, such as Anonymous, but also from libertarians and conservatives alike.
It was evident during his memorial that Swartz’s legacy is a point of dispute among his supporters. When Berin Szoka, president of the libertarian-leaning nonprofit TechFreedom, remarked that he does not condone what Swartz did, even though he believes the law that punished Swartz is unjust, many in the crowd repeatedly interrupted Szoka during his speech until Stinebrickner-Kauffman intervened and asked the audience to be quiet.
Several journalists, influential activists, and members of Congress attended the event in the Cannon House Office Building on Feb. 4. Among the lawmakers were Reps. Zoe Lofgren (D-Calif.) and Darrell Issa (R-Calif,), and Sen. Ron Wyden (D-Ore.), who all support a bill that would amend the CFAA.
Issa, chairman of the House Oversight and Government Reform Committee, mentioned at the memorial how he and Swartz would have found themselves at odds with many decisions, yet they would still find common ground on their belief that information is a human right.
“’Stick it to the man,’ something from my generation, resonates with everyone here tonight,” Issa said. “Ultimately, trusting a government is inconsistent with our founding words, ‘We the people.’ Aaron understood that. … Our copyright laws were created for the purpose of promoting useful works, not hiding them. Our government, and every asset of the government, belongs to the American people. Not one piece of federal land is off your ability to walk through at your pleasure, unless there’s a valid reason to prohibit that. That principle, I think Aaron and I would always agree on. The principle that we own our government, we own all the rights and privileges that God gave us.”
“Product after product and innovation after innovation will be stifled unless we assume what Aaron assumed – that curiosity is about you get to anywhere, anytime and look at anything unless there is a valid reason to stop you; and if you go over the line it is appropriate to be told you went over the line…but the crime and the punishment have to fit,” said Issa – the only Republican lawmaker to speak at the memorial.
Many government officials have voiced their indignation with the Department of Justice for the way that it handled Swartz’s prosecution.
Two days after Swartz’s death, Senate GOP Whip John Cornyn (Texas) wrote to Attorney General Eric Holder asking some pointed questions about the prosecution by the Department of Justice against Swartz.
In another letter to Holder dated Jan. 28, Issa and Maryland Rep. Elijah Cummings, the Oversight Committee’s top Democrat, asked Holder to explain the factors that figured in the decision by the U.S. Attorney’s office in Massachusetts to charge Swartz.
Among the questions raised in the letter was specific information on what pleas were offered, whether Swartz’s opposition to SOPA was one of the factors considered, and why was a superseding indictment was necessary. The panel also requested a briefing by federal prosecutors to address all the questions about Swartz’s prosecution.
“It appears that prosecutors increased the felony counts by providing specific dates for each action, turning each marked date into its own felony charge, and significantly increasing Mr. Swartz’s maximum criminal exposure to up to 50 years imprisonment and $1 million in fines,” wrote the lawmakers.
The Department of Justice declined to comment on the case.
Shortly after Swartz’s death, Ortiz released a statement disputing accusations of “prosecutorial overreach.”
“As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man. I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life,” said Ortiz.
She, however, made clear that her office’s conduct was “appropriate in bringing and handling the case.”
But Issa suspects that Ortiz was motivated, at least in part, by ambition. The congressman joined Swartz’s supporters during the memorial in condemning the prosecutor’s abuse of power, reported the Boston Herald.
The Department of Justice agreed to give a closed briefing to Oversight staffers and potentially members on its decision to prosecute Swartz. That reportedly took place Friday.
When the harmed party does not prosecute, it is almost always inappropriate for someone else to prosecute for them.
I didn’t know just what Swartz had done. He stole a lot of stuff – but without depriving the original owner of that stuff. Then he (presumably) gave it back. Also, the stuff (on a smaller scale) is generally available free of charge to millions of registered students, from a college network. JSTOR provides a valuable service, even if they are sometimes obnoxious about how they do it.
Only if Swartz made the material generally available, would there be any significant harm shown. He did not do that. He could take his hard drive full of data and bury it in the back yard, and JSTOR would in no way be harmed, nor even know anything had happened.
The prosecution was going to ruin him in many ways. It was certainly overreach and grandstanding. But hey, look at the president we have these days.
Almost everyone is missing the obvious.
The outrage is over a lefty being
brutally singled out for Just Us of
a left controlled system.
This is just the beginning.
When only the left lives in this country,
and only lefty authoritarians
are in control,
there will be more ‘surprised’
ubra-left casualties.
There will be no more ‘Issa’s’ to speak
out against brutish ‘I WON’ democracy.
We are losing our republic.
Aaron was used as another excuse to impose even more regulation … it fits the agenda. Bingo … Obama is now crowing even more about regulating internet and is demonizing the new media.
This debacle is another F&F, another Benghazi. Crickets does not even begin to describe it. Federal overreach is gaining momentum.
ALL research (other than classified military research) done at any college, university, NGO, or other institution that accepts any taxpayer funding (including guaranteed student loans, taxpayer-funded scholarships, government grants, and so forth) should be posted on the Internet, in full text, free of charge to the public, immediately and without restriction.
WE paid for it, for the most part against our will!
WE deserve to get something back that is useful to us.
“Justice” department indeed. *spit*
No, Comrade. Read on and learn.
not unlike what Giuliani did to Milken.
Sorry Guy, that’s just silly. Michael Milken engaged in extensive insider trading and admitted to as much. Unlike Swartz’ victimless offense, Mr. Milken’s actions had many victims and this justified his prosecution. Milken knew he was guilty and agreed to a plea deal.
Unlike Mr. Swartz, Milken today is a well liked lecturer in business classes at UCLA and other universities, and while banned from trading as a result of his conviction, he still invests via intermediaries and has amassed a sizable fortune.
It is fantastic to see us moving in this direction, questioning the persecution of Mr. Swarts. We should also remember Pvt. Manning in our efforts. God bless, go forward.
You seem to have difficulty understanding the concepts “property,” “contract,” and “theft.”
Agreed…
Issa doesnt get it.
“Our copyright laws were created for the purpose of promoting useful works, not hiding them”
No.
Our Copyright laws were created to recognize who the OWNERS of things are, and protect them from THEIVES.
Just because its “easy” or “victimless”, means nothing.
What he did was the equivalent of this:
A certain Business Hotel offers a “free” continental breakfast to its guests. The staff would not recognize every face in the lobby the next morning, as the one who “checked in” may have additional people (family) staying with him…thus the presence of “unknown” or “unverified” people grabbing coffee and bagels the next morning would not be unusual or raise undue suspicion. It is a busy hotel with many people coming and going
Thus, there is a certain amount of “risk” accepted by the establishment, that SOME customers may indeed over-indulge (take another meal’s worth of carbohydrates with them for the road?). They accept this “risk” in the name of Hospitality, to INCREASE THEIR REPUTATION among the travelling, hotel-room-buying public and encourage more to use THEIR services by offering VALUE and CONVENIENCE.
It does NOT mean they are offering “free food” to whom so ever shall be inclined to walk in off the street and rightfully expect “something for nothing” because (in their opinion) that business model did not SUFFICIENTLY prevent such boldness among the devious and dishonest.
This gentleman not ONLY walked in (repeatedly!) as an un-registered guest and quietly enjoyed a free cup of coffee and a bagel……no…. he saw fit to return later, bolder, and snoop around the facility looking for “weaknesses”…. and entered an unlocked storage closet to fill his suitcase with BAGS AND BAGS of bagels, and BOXES AND BOXES of coffee creamer and sugar…. Bulk inventory supplies that are “replenishment stock” for the “small courtesy” of a nosh-nibble offered to their PAYING GUESTS…not gross, large volume giveaways to whomever is bold enough to exploit their “weakness” in security.
That no ID was required to enter, that no “one bagel per guest” restrictions were posted, and that there was no LOCK on that storage closet to PREVENT a determined thief from taking advantage of their “generosity”, changes nothing.
The Boy was a thief.
And an egregiously greedy one at that.
That he is (was) a young, popular, lefty techno-geek that many could “see themselves as” changes nothing. Its just more moral relativism of The Left, where if youre “cute” or have the right “cause”, things like LAWS ought not to apply to you because YOU’RE SPECIAL.
7 months in jail, had he accepted the plea, would have been an appropriate punishment for such a large scale thief, for such a bold and conscious INTENT to steal, regardless of how “lax” the business was in securing their breakfast supplies….
Or whether they receive “Federal Funding” for smoke alarms, Heimlich Maneuver Signage or “Enterprise Zone” tax concessions.
That doesn’t make those bagels “yours”, even if you ARE a taxpayer yourself.
So, Good Riddance to another Entitlement Leftist, who, when push came to shove, turned out to be (no surprise here) a miserable coward unable to face the consequences of his own actions.
Many things wrong with your view here…
Congressman Issa is correct – although you are also, in a way. The purpose of copyright and patent is to allow an author/inventor a _reasonable_ monopoly period of time to recoup the investment of their time and money, and as much profit as they can make in a reasonable time. But it is also to encourage them to do so in a way that does not lock up their work as a “trade secret,” making it inaccessable to others as a basis for further work.
It does make a difference whether the research in the journal articles is taxpayer funded. When I develop software for a company, whether I sign a contract or not, it is understood that the company is paying for it – and therefore owns it, and can do what they wish with it. When the “company” is the government – representing the taxpayer – sorry, the owner is the taxpayer, not the person who was paid to do the research and write the article. The only time the research should not be accessable without further charge to the actual owner is when secrecy is to their benefit – such as in certain DOD research projects (nuclear weapons triggers, stealth coatings for aircraft, etc.).
Research funded by the individual scientist, or by university funds (not taxpayer derived) – that is a different matter. Although it is rare to find any research project that does not depend on government funding these days.
Bagels – very bad analogy. If you steal the bagels from a hotel’s closet, you have made it impossible for the hotel to use them. Copying data does not make it impossible for the possessor to use it – the theft is in making it more difficult for them to profit from it. The question then is whether they are _entitled_ to profit from it, or are involved in what is, ethically, theft of the information from its actual owner or owners – the people who actually paid for the work. Much of the information available on JSTOR is not, ethically, their property – the “value-added” is in their system that allows easy retrieval. Much as some websites that I use that provide easy access to works that are undoubtedly in the public domain, they have the ethical right only to charge (or solicit advertisers, as these sites do) for their service – which Swartz did _not_ steal (if he had made their entire collection available, it is not useful without their retrieval system – having done academic research both in the “old days” and recently, digging through Swartz’s “dump” would be excruciatingly painful regression).
Yes, the copyright and patent laws are designed to encourage people to make their creations public. How they do so—or whether they choose to do so at all—is up to them. The laws offer encouragement and incentive; but they do not compel.
Yet, you argue not only for compulsion, but for freelance, third-party compulsion—for the “right” of some independent individual to force disclosure and distribution solely according to his own determination, and against the author’s wishes. This is a contemptible position.
The source of funding makes no difference; it is the terms under which the funding is received that controls; the contractual arrangement which the author makes in order to receive the money. If anyone has a problem with this, then the proper course is to address the manner in which funding is distributed—not to individually, unilaterally intervene to abrogate the agreement the author has entered into.
I don’t care what he did or didn’t do there is no proportionality here. Everyone is charged with four or five (or twenty!) charges for a single transgression and then “offered” a plea bargain. Fifty years or a few months, wow, thanks, you guys are so generous. “Successful prosecutions” lead to promotions the hell with the rule of law.
In how many instances of he-said she-said prosecutions of child molestations do you suppose an innocent person takes a plea of some years compared to the chance of decades of incarceration? Are we to believe that mistakes can be made in all areas of criminal law but not this one, that only the guilty are charged? I just finished reading a chilling article in the Atlantic wherein it was revealed that any number of convicted molesters are not released after their sentence is up because of what “experts” contend they might do. Think about that legal president when you consider your rights as a gun owner or hell any rights.
What about those six boys from Duke? The woman who made the felonious accusation wasn’t prosecuted. Could it be because she was a woman and black? I believe that I read that this little darl’n had falsely accused before and went on to murder a boyfriend.
How about the McMartin case some thirty years back in LA. It was alleged that children from the preschool were flown on secret planes all over the world to witness sex, animal sacrifices and cannibalism. The McMartins faced, if memory serves, a thousand charges, and the son spent five years in prison. Do you know how many of the charges were proved in court, NOT A SINGLE ONE. The LA Times wrote an editorial apologizing for not doing a better job of looking at facts but two months later they were attacking gun ownership in exactly the same close minded manner.
How about recovered memories, that came and went in California some years ago. In one infamous instance a woman was helped to remember that her father had taken a rock and crushed her best friend’s head… ah, but she had forgotten all about it until her therapist gave her some guidance. Her father spent several years in jail in the mean time.
Think this circus can’t visit you in your home, think again. The idea just seems to be to jail as many people as possible. It’s out of control and has been for years.
Just how far from the Salem Witch Trials have we come? Not far at all.
It appears the victims the Salem Witch trials got a fairer trial than what we see today.
This statement pasted here resonated with me:
“The woman who made the felonious accusation wasn’t prosecuted. Could it be because she was a woman and black?”…this in regard to that infamous false Duke Univ. rape accusation.
The ABAJournal Website administrator is so sensitive on this Aaron Swartz subject that I was banned some while back from posting on their Blog, AND, from even searching their Blog, after I’d the temerity to state in a post:..”With a name like Carmen Ortiz, she’d be able to expect lifetime tenure just about any where she wanted”.
We’ve got a serious problem with this ‘political correctness’ B.S. which is so rampant now with this crass Obama and Holder in ‘our’ offices, on Taxpayer salaries.
Both of them seem to have “stick-it-to-the-man-itis” in a bad way.
The process wherein prosecutors have unlimited funds and a license to extort plea bargains with threats of very lengthy sentences is most unfair. It would be good if jurors could call the penalties, without any restrictions in law, and take that weapon away from prosecutors.
The life of the accused is ruined long before the case reaches a jury.
If Aaron Swartz had bent his efforts towards changing the law(s) he considered unjust instead of deciding to become a wholesale shoplifter of property that was not his, he would not have faced prosecution and he would still be alive today.
Instead, he decided he would become an Internet Hero by engaging in theft of other people’s work, and apparently believed that because he was some kind of genius the law would be held in abeyance for him.
Why, exactly, are we supposed to weep for him?
My understanding is that his specific beef was that the research in question had been funded by Federal government money, and therefore ought to be public property. Intellectual property rights should be protected for people (including corporate persons) who expend their own capital and time to produce it. However, vast sums of taxpayer monies are going to ivory tower research grants, and then the taxpayers are not allowed access, but rather the resulting intellectual property is restricted to the same educational institutions who benefited from the funding in the first place.
His goal was to bring the matter before a court, to obtain a court ruling regarding the legal issues regarding the use and ownership of intellectual property funded with taxpayer money.
The history of civil disobedience of this type includes such things as teaching about evolution (Scopes), refusing to leave a seat on a bus (Parks), sitting at a “white” lunch counter (King), and so on.
Swartz’s crime was planned to harm no one (individual researchers would even benefit from wider reading and quotation of their works), to be discovered, and to result in a trial, which he would either win, or appeal. He expected the maximum penalty to be something he could live with, in the interests of bringing the disputed matter to public attention and putting the issue to legal test.
The prosecuting attorney found a way to multiply the penalty orders of magnitude beyond reason, to delay actual trial proceedings for 2 years, and to drain his not inconsiderable financial reserves before he could even get to trial.
Thieves always have a line of guff to justify their thefts, or would-be thefts—whether it is President Obama ranting about “millionaires and billionaires” and “fair shares,” the OWS agitators yapping about “the 99%,” the teenager who shoplifts—or Aaron Swartz trying to justify his unjustifiable actions.
If Swartz wanted to “bring the matter before a court,” all he had to do was find a plaintiff with standing who could legitimately claim to have been denied something. He did not have to surreptitiously engage in wholesale theft.
Intellectual property is owned by those who produce it. That is either the author him- or herself, or—if the work is produced under work made for hire agreements—the author at law, who has paid the author in fact to produce it. If the material that Swartz was stealing was produced with, or with the assistance of, government grant money, that is beside the point if the terms under which the money was granted left authorship with either the author in fact or the author at law.
If Swartz disagreed with those legal structures, his task was to behave as a concerned citizen, not a vandal or a thief, and work to change the grant structure. He did not engage in civil disobedience, but theft; he did not utter forbidden words as John Scopes did, or sit in a forbidden place as Rosa Parks did. But, if you insist on that false equation, consider that Swartz killed himself because he forgot the first rule of the intentional lawbreaker; don’t do the crime if you can’t do the time.
Certain premises we agree upon: First, Intellectual property is protected by law, and such protection is constitutional, and appropriate. Second, the author-at-law is not less entitled to legal protection than the author-in-fact. Third, indeed, those who engage in civil disobedience SHOULD be prepared to stand the statutory penalty for the actions they acknowledge to be in violation of the alleged unconstitutional statute.
Swartz’s issue was the whether the statute properly identifies the author-at-law, or whether the statute (and subsidiary regulations) improperly restricts authors-at-law from the property produced. Thus, his argument, constitutionally stated, is that the statutes regarding university research grants, and the sequestration of resulting data/research, constitute a governmental taking without compensation. Also, he could potentially have argued, it is a taking without notice and an opportunity to object.
In hindsight, it might have been more prudent to lift/copy a single paper, a single graph, or the like — but that would have failed to make his point, which had to do with the HUGE volume, the MOUNTAINS of money, time, ivory-tower privlge (in both the modern sense, and the ancient sense of “private law”), and by the way, research data and accumulated but unshared, unused knowledge, banked away from millions of potential users.
His entering the virtual library, was not unlike a person entering a restricted place. And, indeed, since this is a situation wherein it would be impossible to find a particular plaintiff, civil disobedience, sufficiently dramatic that it could not be simply ignored, though it puts one in the less advantageous position of entering the suit as defendant, rather than plaintiff would seem to be the only way to get a cause of action before a court of law.
Just as it is not logically possible to prove a negative, it is not possible to find a plaintiff injured by ignorance of sequestered data, because, IF the person KNEW of the existence of data, then the person WOULD be able to get it,and would NOT be injured by its sequester.
You have masterfully mis-stated the entire situation, starting with falsely characterizing Swartz’s embarkation upon a course of willful theft as “civil disobedience.” From there you proceed to:
None of the above is true. Swartz installed a machine to systematically purloin material from an archive. Neither he nor the machine which he installed to do his stealing did anything whatever with regard to verifying “proper identification of authorship.” His concern was not with whether the authors were properly identified, but with permitting would-be users to obtain them without paying licensing fees. Claiming that the works in question which were placed in the database by the authors constituted a “government taking without compensation” is simply loopy.
Whatever “taking without just compensation” occurred here was done by Aaron Swartz, the Caped Internet Crusader who took it upon himself to rip off a database because he didn’t like the way the authors made their works available. The attempt to rationalize Swartz’s vigilante behavior is contemptible.
That’s for sure, Buzzsawmonkey. This “information is free” bullshit is really wrong. Anyone promulgating it ought to put an up to date copy of everything on his hard drive in a public place.
I find that this Swartz “hero” (“jerk” to me) needed prosecution. Furthermore, since it is not argued that he did not do what he is accused of, he makes a poor case against the power of the prosecutors to “blackmail” him into a plea bargain with an appropriate sentence, even though that particular power is perhaps too easily abused to be justified (find an actual victim of it).
Nobody killed him but he himself. He was a thief. I have zero sympathy for him, and I sure hope that other “Che Guevara’s of the Internet” helping themselves to “information that should be free”, in their “above the law” judgement, but actually isn’t free are similarly prosecuted.
But upon reflection I see that I miss spoke. The idea isn’t to “jail” as many as possible the idea is to intimidate the populace with legal complexities and horrific consequences that are beyond our ability to calculate. The goal of that is what all totalitarian regimes want and wanted be they led by a king or an “ism” and that is ‘self limiting behavior by all the helots’. It is a form of terror where you police yourself. It is molded around three core rules.
1. Don’t.
2. Rule one doesn’t exist.
3. It is forbidden to discuss whether rule one or rule two exist.
And that is the finish of any free people.
Aaron Swartz knew damned well that he was stealing; that was his intent and his purpose. The idea that the poor widdle innocent somehow fell afoul of an obscure law that he didn’t know nothin’ about is nonsense.
Sorry the name just came to me as to who actually wrote the rules down: R.D. Lainge.
Darrell Issa does not know what he is talking about. Copyrights are private property, for the most part; he should be ashamed to be making excuses for someone who takes it upon himself to “liberate” other people’s property like a teenager shoplifting from the five and dime.
Copyrighted material is not “unavailable.” It is available with permission, which usually, though not always, requires a fee to the copyright holder. This is as it should be. And if the would-be user is too damn cheap to pay for the usage, then that, too, stimulates creativity—because the would-be user has to come up with something else.
A copyright is a matter of public record and copyrighted material is usually available to anyone who wants to look at it. As I understand the matter, Swartz downloaded publicly funded articles from a publicly funded university’s computer. And Issa’s defense of that is to compare it to hiking in a publicly owned park. That’s a good analogy. Let’s face it, the federal prosecutors in this case were bullies.
You talk about changing the law. Well, good luck with that. The fastest and easiest way to change a law is to break it and break it a lot. That’s how I and my fellow motorists were able to make ‘right turn on red after stop’ the law of the land.
A copyright must be registered with the Copyright Office to be enforceable, but that does not make the copyrighted material “available to anyone who wants to look at it.” Quite the contrary; the copyright law grants the author or copyrightholder the exclusive right to determine how, or if, the work may be reproduced, distributed, displayed, or publicly performed, or whether derivative works may be made from it. There are certain limitations on these exclusive rights, but to assert as you do that “anyone who wants to may look at it” is simply not true. The ability to charge users or licensees exists to provide an incentive for the author to make work readily available, but it is up to the author how, or if, that will be done.
MIT is a private university, though it doubtless gets public funding for certain things, as most universities do. Whether it is private or public, however, is irrelevant—as is whether there was public funding for some of the material which Swartz took it upon himself to steal. He was screwing the copyrightholders—who had already benefited the public by making their works available under certain license conditions, wholly satisfying any “requirement” of public benefit under the copyright law.
Buzz, Your stmt “copyright must be registered with the Copyright Office to be enforceable” is incorrect. The over 20 year history of the Free (Libre) Software movement on the internet has left deep drifts of discussion on this — GIYF.
This case involved the edge of Gov’t produced papers (noncopyright) and gov’t funded papers (limited copyrightabilty via contract). A key issue is the non-copyrightabily of government published works. (we the people’s stuff, eh?)
The Swartz incident was not a case of swiping the current manuscript catalog of Penguin Books.
You are wrong on two counts: first, you are wrong in stating that copyrights must be registered to be enforceable. This is black-letter copyright law; if you are unfamiliar with it, I suggest that you go read the copyright law on the Copyright Office website and educate yourself. While copyrights come into being as soon as the work is fixed in tangible form, that copyright cannot be enforced—i.e., one cannot go into court to pursue an infringement—if the copyright has not been registered with the Copyright Office.
Second, you are confusing three things: the public domain status of works produced directly by the government, the copyrightability of work produced with the assistance of government funding, and the ability of the government to own copyrights. Work produced by the federal government—whether agency reports or papers or photographs for Obama’s White House website—have no copyright. That does not apply to state government entities. Work which has been produced by private individuals or non-federal entities under government funding or partial government funding does not automatically fall into this category—though it may, depending upon the nature of the written agreement under which the work is produced. The federal government, however, may acquire and own copyrights and copyrighted material sold or deeded to it—for example, a federally-owned museum may be deeded the copyright to a painting it has acquired, and own that copyright.
As to the material Swartz was stealing, that did not fall into the category of noncopyrighted and noncopyrightable federal material. If some of it was produced in part through the use of federal grants, that did not render it public domain material—and, if it was, the proper way to make it available was to bring a suit to establish its status, not to steal it. There is absolutely no legitimate excuse for Swartz’s behavior—which was exactly the same as swiping the Penguin catalog, regardless of the actual status of the material in question.
Buzzsawmonkey – read the Constitution, all of it, sometime. Don’t just skip the first three words. The Federal Government of the United States – unlike the Monarchist Government of the British Isles – was not envisioned as a distinct entity, ruling over its citizens. It is supposed to be, lock, stock, barrel – and any copyrights it may hold – owned by “We the People.”
RealityObserver: You are grafting your own ideology onto a situation which will not support it.
The materials the federal government creates, within itself, are neither copyrighted nor copyrightable. That does not mean that all material created by a non-government party with the aid of a federal grant is neither copyrighted nor copyrightable; whether or not that material is in the public domain depends upon the terms under which that money was granted.
More to the point, regardless of the terms under which any grant money was given to anyone, it does not fall to some scruffy little snot to unilaterally declare the material to be in the public domain by extra-legal means.
No, it’s not. It shows that where copyright is concerned, Issa is as clueless as any Democrat hell-bent on “redistributing the wealth.” Republicans usually tend to understand the concept of property rights; Issa, to his immense discredit, is an exception.
Beyond that, there is the issue of copyright laws. The current ones are simply unjust. We should go back to how it worked in the constitution. IP laws weren’t meant to lock up ideas and words (and images, etc) forever, but only a short time.
And you reasoning and authority for this fact-free statement is….?
What gives him authority to make the statement is the First Amendment. As for it being “fact-free”, are you claiming that our original copyright laws originally did not limit protection to 14 years with a 14 year renewal?
What is fact-free is his free-standing unsupported statement that “the current copyright laws are simply unjust.”
Yes, the original copyright laws were of shorter duration than those which were passed in 1831, or those passed in 1909, or those we have today. So were lifespans.
It would be interesting to hear someone argue convincingly the proposition that “the current laws are unjust.” I’ve heard many people argue that point—never convincingly.
Talk about fact free statements!
There is not one word in the First Amendment about copyrights.
That’s even more far-fetched than reading a “separation of church and state” into it!
You may not have noticed that copyrights are the only property right to be established in the Constitution proper—Article I, Section 8. Congress is specifically given the power to grant exclusive rights to authors, and that power antedates the drafting of the First Amendment.
You were saying…?
I was saying there’s nothing in the First Amendment about copyrights. That was in response to this fact-free statement:
Just what were you saying?
Perhaps you missed that whole “reading comprehension” thing in school. I said that the unsupported statement that “the copyright laws are unjust” is fact-free—which it is, and which it remains unless and until it is supported.
I did not question that someone can make that statement, devoid of fact or support though it is—people shoot their mouths off all the time without having any knowledge of what they are talking about, and without in any way offering proof in support of their contentions. Why you are reflexively invoking the First Amendment, and what relevance you believe invoking it has, remains obscure.
What about the real case of theft that Obama’s Attorney General Holder is failing to prosecute:
JON CORZINE ?????
The Corzine case seems to disprove the adage “No man is above the law”. But then, Bonnie and Clyde Clinton, and Crook Holder and Obama have already disproven it.
Easy answer to your question: Corzine and guys like him are Democrat stalwarts and pump bunches of money into Democrat political campaigns. It’s called selective prosecution and is a corrupt way of doing business no matter if done by Democrat or Republican administrations and both do it. The reason why the Obama administration is hell bent on prosecuting copyright cases is because a lot of his major donors are making bunches of money off copyrighted material; Hollywood for instance.
“Among the questions raised in the letter was specific information on what pleas were offered, whether Swartz’s opposition to SOPA was one of the factors considered, and why was a superseding indictment was necessary.”
I will always believe that was the reason. Aaron Swartz led in the halt of
SOPA, which I fear will only become a temporary victory. He embarrassed senators. He had to be put in his place.
I don’t care about the kid’s political views. He had the guts to stand up for freedom of information. That is far more than I can say for many people who claim to care about liberty.
As for the documents he took, my understanding is that these were older papers that should be in the public domain.
Theft is not “freedom of information.”
And these “older” papers “should be” in the public domain on just what basis?
If their time of copyright has ended. Since Aaron’s actions the subscription-based archive agreed with this and make the public domain material available, as I understand it. They had no interest in prosecution. The government wanted revenge.
Swartz, by all accounts, was downloading randomly—i.e., not targeting material in the public domain, but material in the database in general.
One wonders, in passing, of what major interest the public domain material in an academic database might be, since that material would hardly be current. But let that rest: the fact that the database subsequently agreed to make the public domain material readily available suggests that negotiation (something lawyers, like Swartz’s well-known mentor, are supposed to be adept in), or financial incentive (something Swartz and his well-heeled cronies in the cyber-world should have been more than able to provide), or a combination of the two, might have obtained Swartz’s suppposed objective more quickly, cleanly, and legally than his act of electronic vandalism. The fact that Swartz and his cronies seem not to have attempted to go the legitimate route first tends to give the lie to what they claim their stated objectives to have been.
Why, you might ask, is “financial incentive” an issue? Because while something may be legally free to all comers when it falls into the public domain, maintaining public domain material in ordered files and maintaining the structure to make it available cost money. If the material is “free to all,” and the free-stuff crowd then demand that this be expanded from the right to free and usage to the ability to have it without payment, who is going to underwrite the costs of this “free” availability? One way would be to hike the usage fees on the stuff still under copyright; another would be for the free-stuff bigmouths to put their money where their mouths are and raise the funds necessary.
Hatred of government
Issa: “Ultimately, trusting a government is inconsistent with our founding words, ‘We the people.’ Aaron understood that.”
Issa’s remark reveals a dangerous anarchist streak in American conservatism.
This anarchist streak is the opposite of the republican spirit that prevails in the European Enlightenment and is prolonged by the US Constitution.
Hatred for and mistrust of authority is warranted to the extent that authority is not nased on popular consent and is not controlled by the people’s will and by the rule of law.
Hatred against arbitrary feudal lords was warranted. Hatred of arbitrary and arrogant administrations is warranted. But hatred of government AS SUCH indistinguishable from the jihadi’s hatred of Western civilisation. This hatred is a pernicious ideology that conservatives have manipulated to weaken government in order to allow huge corporations led by unelected profit maximizers to dominate society. This hatred of government is totalitarian propaganda posing as emancipatory politics.
Carl Stoll
Irrespective of the merits of the government’s case pro and con, that have already been discussed, unless I missed it, no one has yet mentioned the troubling fact of the government charging Aaron with numerous criminal violations of “terms of service” promulgated by what are private, NOT public, corporations. I think it a very dangerous precedent to allow private corporations to, in effect, fashion, on their own, the functional equivalent of criminal penalties under public law–and for those privately-derived terms of service to be used by public authorities as if they were, indeed, EXACTLY equivalent to public law. This treating of violation of a private corporation’s “terms of service” as if it were a criminal act is dangerous and an affront to the very concept of representative constitutional government. Creating criminal law is a function of the public legislature, NOT private companies..
Does anyone else find it ironic that the Honorable Jesse Jackson, Democrat Illinois, stole in excess of $750,000 – tax evasion – etc etc etc ….and he certainly was not threatened and intimidated like this young man – I think our system is rigged – to favor the “haves” – not the “have nots” which translates into every day Americans that are working hard, trying to raise a family – and to get by.
Why do you think they call it white collar crime? Why are there country club federal prisons when they all should be like leavenworth!!?
I must be missing something.
The guy broke the law by stealing. If you steal from a store and the owner does not press charges. It is then the choice of the cops/prosecutors/state if they want to continue. So they did.
What is the big deal? I mean other than the guy killing himself. He could have done 7 months in the county jail, and have been done with it.
Am I missing something?
Nope, you pretty much nailed it.
The disputed issue is whether the tax-paying public has the right to access tax-payer funded university research material, or whether it is proper to restrict such data publications to university students and employees. Swartz wished to argue that taxpayers in general, not just the restrictive group of taxpayers attending or working for universities, are the “author-in-law” of such materials.
Then he should have done so by legal means instead of acting as a freelance vandal. His decision to be an intellectual-property Chris Dorner proves nothing except that he was an asshole.
The “issue,” as you call it, is a wholly bogus one.
One of the fascinating things about this thread is that people are talking about Aaron Swartz as though he was a poor li’l waif, facing the juggernaut of government prosecution as naked as that lone man staring down a tank in Tiananmen Square.
A quick internet search suggests that Swartz’s net worth at the time of his death was anywhere from $6.5 million to $8.5 million—possibly more. That would buy a lot of fancy defense, and pay a hefty bunch of fines, were Swartz in the unenviable position of facing prosecution alone and friendless.
But Swartz was not alone and friendless. He was the protege of a nationally-prominent anti-copyright copyright lawyer currently on the Harvard faculty. He had the sympathy and support of the anti-copyright “copyright” bar, his wealthy colleagues in the Internet world, and the foundations they have endowed to further their own efforts at content-grabbing under the guise of promoting “free access.” To further that agenda—and perhaps assuage their own consciences—they are promoting Swartz as a poor defenseless innocent. The pictures of the scruffy, T-shirted Swartz are, in this sense, as much a lie as the pictures of Trayvon Martin which were widely distributed after his shooting.
Buzzsaw, I read the article waiting, waiting for the big stroke that would explain something…kind of a dry heave, if you ask me. It reads as though I should be outraged but the content doesn’t warrant that. As far as I can tell, this guy bit off more than he could chew and should have reasonably been looking at 3-9 months cooling his heels. It’s also worth asking, where were his “buddies” that you mentioned?
The more edifying piece of info was the throwaway of the White House doubling the petition number.
I think you basically own this one.
Hey Buzz, you are wrong. Swartz had a right to download every single thing that he did. He had a licence to all of it! Look it up! If he had downloaded it one article at a time, from a remote location, the Gov would not have had a legal leg to stand on. What they got him on was the fact that he had secreted a laptop in a closet (which at the most is criminal trespass), and that he had downloaded it all, in big chunks, instead of one article at a time.
You are letting your political leanings bias you. Because Swartz was a liberal, he must be punished. What bullshit! It was an obvious case of prosecutional over-reach.
HE HAD A LICENCE TO DOWNLOAD ALL ARTICLES FROM THAT SERVER!
You are wrong—both about whether Swartz “had a right to download every single thing he did,” and about “whether the government had a leg to stand on.”
As you correctly point out, Swartz secreted a machine to engage in surreptitious downloading. Now, why would a person who supposedly “had a right to download what he did” bother to secretly download material in a manner designed to avoid detection? It is highly unusual for someone who has a key to the front door to enter a building by breaking into a second-story window, is it not?
Swartz secreted his machine for three reasons: a) to download wholesale; b) to avoid detection while doing so; c) to then massively re-distribute the material he had downloaded. This is analagous to the people who, having acquired a single copy of a song, then proceeded to engage in copyright infringement by file-sharing that song with two million of their closest friends—except that Swartz dispensed with the troubling detail of legal acquisition, and with paying the licensing fees for the material he surreptitiously acquired.
The fact that he had the option of legitimate access to the material, which you wrongly suggests legitimizes his behavior, merely points up the illegal intent of his actions. He wanted to avoid liability for engaging in a course of action he knew carried the risk of liability. The citations to Swartz’s option of legal access and to the “terms of service of the website” are merely red herrings intended to mask his illegal behavior—a couple of “look—squirrel!” distractions which are posited to try and minimize the nature of his infringements.
Swartz’s offense was not against JSTOR; it was against the copyrights of each and every individual (or institution) whose work he stole. Trying to falsely re-direct people’s attention to JSTOR’s “terms of service” is either an ignorant or a disingenuous effort to distract from this fact—as is the false argument regarding the “funding of the research for the material.”
Swartz was surreptitiously stealing material for the purpose of broad re-distribution in an act of copyright vandalism, the owners of the work be damned. His option for legitimate access was intended as a fig leaf to cover his actions should he be caught (as he was); the nonsense about “terms of service” and “research funding” are intentional obfuscations.
That Swartz was supposedly “a liberal” (if indeed he was) is utterly irrelevant—except insofar as this shows the contempt that “liberals” have for the property rights of others when their own gratification and their own ideology is at issue, and their false belief that their ideology should act as an automatic grant of immunity for behaving like spoiled children.
“As a fellow at Harvard, Swartz had legal access to the articles. And because he was copying the articles—not taking them—JSTOR continued to have them.
It’s true that Swartz violated JSTOR’s terms of service by downloading the articles in bulk rather than one-by-one, but that should have been dealt with as a breach of contract, not as a criminal matter. As a Swartz supporter has put it, “it’s like trying to put someone in jail for allegedly checking too many books out of the library.””
http://reason.com/archives/2013/01/31/aaron-swartz-the-punishment-did-not-fit
I see you are in thrall to the nonsense promulgated by the anti-copyright copyright bar, which seeks to promote the bogus notion that stealing copyrighted material in violation of its copyright protection and redistributing it without compensation to the copyrightholders is an act that is not only not pernicious, but even noble.
It would be interesting to see someone attempt to forthrightly defend this garbage, but that is not to be expected.
And hence our unenviable position: liberals who think any private property is theft, and conservatives who believe all crime should result in the death penalty. Meanwhile, the government continues to grow, and the rule of law has been replaced by the discretion of unethical public “servants”, who care only about their win/loss ratio, and not about “justice”, a quaint idea that does not help their personal ambitions in the least. You rail at liberals; I rail at whomever would turn Leviathan into their personal path to glory, riches, and power.
Well said, Denver jay. The underlying problem in this whole mess is indeed leviathan government. This shows in several parts of the mess: First, the huge amounts of external (government) money feeding the higher education market, in student loans and aid, in tax breaks for everyone on public university payrolls, as well as direct support of public institutions, AND in the billions of funds given in research grants, with the whole unwieldy public employee structure that administrates the giving of those grants (administration being a significant percentage of the amounts actually given).
The research grant thing may be a small part of the external money feeding the education bubble, but the education bubble as a whole has the potential to become, within a decade or so, a bigger problem than the housing bubble.
Second, the proliferation of criminal laws, and the inflation of penalties, which give prosecutors enormous power to selectively prosecute, and to make threatened penalties so high that the right to trial can become illusive. Fundamental to American democracy is the principle that laws should apply the same to everybody. This cannot be the case when draconian laws are rarely enforced, and can be enforced or waived at the discretion (or whim) of a particular governmental employee.
Third, the right to a speedy trial should also include the right to GET to trial without exhaustive pretrial maneuvering calculated to diminish the accused person’s ability to defend himself at trial.
Another example of Leviathan government abusing a liberal, is the prosecution of Martha Stewart, who was accused of a huge laundry list of offenses, was offered and refused a plea deal to a much lessor offense — and then, on the very day of or right before trial, the prosecutor dropped all charges except one, which was even a lessor one than she had been offered a plea to. An automatic victory for the defense? No. Her lawyers were absolutely sideswiped: the case they had to go into court on was completely different from the one they had thought they were preparing for, with a smaller set of witnesses and exhibits, and a totally different focus. They were crushed, and she was convicted, after having spent probably millions in legal fees preparing to defend a huge list of charges the prosecution did not actually intend to try. I have no sympathy with Stewart’s politics, and I know she is not exactly indigent — but it is wrong for government abusively to prosecute anybody.
I will refrain from ranting about similar injustice inflicted upon Scooter Libby.
It is to laugh, seeing people here claim that “because the federal government paid for it, we the people own it.” I’ll be sitting in the back of the courtroom laughing my ass off when one of them gets arrested for stealing a Jeep off an army base and going for a joyride. I’m sure that the court will be entirely convinced by the argument that there was no theft, and no crime, because tax money paid for the Jeep—and because the Army managed to recover it intact.