I'm begging you to spell his name right.
I should have called you an antisemite. Wait, it's not too late: antisemite!
Whoops. Well, first I wrote "Adam Schwartz" but I caught that one before anyone saw it.
Self-hating-Jewness is my birthright.
Jewessness, antisemite.
And thanks for making the change. I imagine lots of people here knew him, so I feel silly saying anything beyond the obvious: he certainly seems to have made the world a better place by enriching the lives not just of his loved ones but of people he never met. I hope he rests in peace and that those people who miss him find some comfort in all the good he did.
Along with a general plea for copyright civility
Surely even Halford would agree that you can't copyright civility.
Though of course, civility is Halford's trademark.
It saddens me how dangerous youthful idealism is. Young people are constantly fucking up their lives by failing to realize how pointlessly evil their elders are.
Any misspellings are probably my fault.
I didn't know Aaron personally, or follow his adventures all too closely, but something about this really struck me.
a general plea for copyright civility from all the usual suspects
I am not so sure what this means. Should we not talk about that aspect of it?
I'm curious to see how the investigation at MIT turns out. It does seem to me that this is the sort of thing that MIT traditionally would handle without involving the outside police.
11: It'd be nice if we made an effort not to bait each other on that topic in a way that dismisses the fact that a death has precipitated this particular discussion.
Maybe that goes without saying--it's just that I'm feeling somewhat raw here, and not really sure why.
Yglesias, who knew him slightly through his political activism, has a memorial post that I thought was quite good.
Well, if we can't talk about Property is Theft, maybe his is the thread where I can bring up General Nogi and Mohamed Bouazizi, Durkheim, and the way the personal and social/political aspects of suicide interact. The closest I was able to come in Durkheim was the type he called fatalistic suicide, deriving from a society's regulative function and excessive constraints on individuals.
I linked to this This Article and more over at CT
When the bailiffs arrived to evict Kenjegul Alinkulova from her home, she doused herself in petrol and set herself alight.Alinkulova, a 45-year-old and a mother of five, decided suicide was the only way to save the family home in Almaty, Kazakstan's second city. The property had been seized by court order after her husband was convicted of a fraud offence, and officials had refused to delay eviction until the final appeal hearing was over.
Over many years, self-immolation has become a sadly well-known suicide method adopted by women facing domestic difficulties in Uzbekistan, Tajikistan and neighbouring Afghanistan. In Kazakstan, it is a new and quite different phenomenon, involving both men and women.
While each of the six recent cases was an individual cry for help, there appeared to be a common theme - a sense of powerless in the face of injustice or economic problems. Five appeared to be attempts to attract attention to an injustice, and the sixth involved a man facing repossession of his home because he could not keep up his mortgage payments.
I mean, I again don't really know what that means. Copyright, and different attitudes towards how it should be conceived and (particularly) enforced seem at the absolute heart of what happened. If there are fundamental disagreements here about those things (which of course there are), it seems like any discussion of this is going to necessarily have to touch on them.
13: I get the feeling raw thing, but it's just that it's explicitly clear that this topic was something the deceased wanted more talk of, nu? So if the concern is disrespect or something....
17: holy shit, I just wrote that very thing to someone. That's weird and discomfiting.
Wonder twin powers, activate!
16
... Copyright, and different attitudes towards how it should be conceived and (particularly) enforced seem at the absolute heart of what happened. ...
It seems to me that the heart of what happened is you had a depressed person who killed himself as depressed people sometimes do.
20: we'd make lousy superheros. Terrible response time due to refusal to fly.
I don't think I knew who he was until after I dropped out of history, but in every field I've had some contact with since then - investigative journalism, open government, libraries, open access to research - he made real contributions.
Eh, I just wanted folks to not be jerks to each other, that's all. Vigorous discussion of copyright-related issues is welcome!
Wonder twin powers, activate!
Superjews!
I knew Aaron.
We met at Defcon. He was a good guy. I can't say I knew him well, but he made an impression. I'm sad that he had to end his life.
It seems to me that the heart of what happened
It seems to me that the heart of your comment betrays a fundamental lack of heart. In short, it is characterized by its heartlessness.
J, Robot, I hear you:
I didn't know Aaron personally, or follow his adventures all too closely, but something about this really struck me.
It is very sad, such an awful loss, and distressing to think of.
So if the concern is disrespect or something....
I assume the concern is that a vitriolic argument that goes in circles and focuses on minutiae would be disrespectful, given that someone has died under duress brought about by conflicts over these issues. On that note, let me be the first to ignore 21.
Petition was doing pretty well, last I checked. Yep, 23,212, so they'll hit the milestone easily by the end of the night.
Eulogy from the Baffler, ye Chicagoans and others. They are all so heartbreaking. The editor's little daughter.
Lessig's post, linked everywhere and probably also here, is excellent.
On that note, let me be the first to ignore 21.
Which I should have done. My apologies.
I carry no water for overzealous prosecutors, except in cases of violent crimes, as to which, zeal away, lads, but "The AUSA drove him to kill himself" seems a canard.
I assume the concern is that a vitriolic argument that goes in circles and focuses on minutiae would be disrespectful, given that someone has died under duress brought about by conflicts over these issues.
Shearer is a troll and an asshole and stupid besides, but putting him well to the side, I still don't get how it's possible to talk about this without talking about the structuring of the system that, one, allowed anybody to think the prosecution was a good idea or, two, allowed the prosecution to proceed, with the understanding that the story of the prosecution is not the story of his death (or his life).
31: right, I mean, plenty of people face down fifty years in prison without killing themselves. That's certainly a point that could be made.
31: I've seen very few -- not none, mind you -- people say anything so simple as that. I've seen a number of people say that someone predisposed to terrible depression may have been pushed past what he could manage by the prospect of spending years in prison.
I am not satisfied with the discussion of depression in this tragedy.
I have always thought there was a very important distinction between depression and despair which can look very similar from the outside. Seems to me our society, many societies, strongly disapprove of giving up, abandoning hope, in a way that is unfair, unrealistic, and can lead to depression and the guilt of depression.
Swartz had grounds for despair.
32
... I still don't get how it's possible to talk about this without talking about the structuring of the system that, one, allowed anybody to think the prosecution was a good idea or, two, allowed the prosecution to proceed, ...
He broke the law and was unwilling to take a plea. Prosecution is normal under those circumstances.
Thinking as I type, perhaps some of what I'm feeling after reading relevant commentary is shame. It seems that Aaron's life very strongly mirrored his values, and that he represented a tremendous force for good in his very (too) short life. At the risk of making someone else's tragedy all about me, what the fck have I been doing with my life?
37 gets at why the news had me near tears all weekend. Which isn't a useful reaction, and I'm trying to instead summon up motivating anger and inspiration, instead. But my instinctive response, alas, is 37.
I'm apparently succeeding in summoning extra "insteads," instead. Oh, and here's a working link to the petition. (Since I fucked it up in the same way in the last thread--indeed, perhaps Lurid just used my link--I'm rather pleased to get to be the one to offer the corrected one, here. Thanks, LK!)
I still don't get how it's possible to talk about this without talking about the structuring of the system that, one, allowed anybody to think the prosecution was a good idea or, two, allowed the prosecution to proceed, with the understanding that the story of the prosecution is not the story of his death (or his life).
Not to speak for J,R but I think the idea is not that no one should talk about it but that we should try not to let the discussion get as vitriolic as it usually gets when we discuss copyright issues, which tend to have among the highest heat/light ratios of any topics we discuss.
37:People have different talents, abilities, drives and interests and it is not only unfair to yourself to compare yourself to Swartz but it also, I think, diminishes Swartz's singularity. He was special, not a type reproducible in degree. You couldn't be him if you tried a little harder.
Huh, my comment added no value to 13.1. Let me add that I personally have no strong feelings about how the copyright discussion should go -- I was just interpreting. I do personally think that the guy's motives, and the thoughts of his last hours, are obviously unknowable, so it would indeed be frustrating to go around and around on that. We have only the testimony of his family and friends, which is not nothing -- but still.
I am not satisfied with the discussion of depression in this tragedy.
Ever had it? It's a wild card. I have no idea what satisfaction you're looking for.
I can't imagine participating in this thread will do anything but make me angry.
I have no idea if this adds value but speaking personally I think what he did at MIT was morally absolutely right and brave. My immediate thought upon hearing about this was that I should figure out a way to directly contribute (piecemeal) to that effort, but JSTOR appears to have taken (genuinely laudable) affirmative steps in the right direction (anybody can read articles for free on there now, if somebody hadn't heard), which took a bit of the wind out of those particular sails.
Oh, I will let the intellectual property issues rest for a while because
1) I feel I need to revisit the Marxian analysis of late or post capitalism and the way intellectual labor is being "enclosed" or rationalized or primitively accumulated
2) It is fairly obvious that the Obama administration has had an obsessive focus on intellectual property, secrecy, information and message control. From Assange and Manning and various whistleblowers to SOPA and megaupload. Why them, why now?
45: I'd love to agree, but I have to say that JSTOR was a really weird target to pick. Why not Elsevier?
(anybody can read articles for free on there now, if somebody hadn't heard)
Wait, seriously? Good for them.
Yes prosecution is normal when you think somebody broke the law but the whole `let's overcharge and threaten terrible retribution in an attempt to avoid actually going before a judge' is pretty horrible. And so I do kinda think the prosecution has a lot to answer for here.
It's pretty limited as to how much is accessible to laypersons.
The #pdfwhatever movement disappointed me somewhat because it seems most academics just linked to their drafts.
I don't know if the more radical move of posting the JStor passwords (and keeping up with changes) would create huge problems.
Or thousands of people with access doing what Swartz did, overloading the justice systems. They gonna give Krugman fifty years?
My conservative nature has prevented me from being wholly on board with the anti-IP people, but if 50 year sentences for what Swartz did are necessary to make the current system work it has damned itself.
48: Yeah, you can now read but not necessarily download (and only for a limited time). Still, it's something.
8 gets it right. This and the Manning affair indicate a deep generational divide in this country. I might've considered fines a sane reaction, not torture and life ending imprisonment.
8: Yes, one thing that screams from this case is that Swartz did not understand and was not prepared for exactly how evil the forces he was taking on could be. If you want to seriously take on power it is unlikely to be fun heroism, you're going to pay a heavy price.
35: Well put. If Swartz had died of cancer while being prosecuted, then all this talk of 'what a tragic coincidence that he had this incurable disease' might be justified. But it's ludicrous to say that suicide while being faced with 30 years in jail + bankruptcy is some kind of context-free 'disease of depression'.
I don't think copyright has a higher heat/light ratio than numerous other Unfogged topics, or even equivalent. (Although that may say more about Unfogged discussions than anything else). It's an important topic that could use more discussion. Related, the particular vehemence with which the government took on this case requires some explanation, I think. Is copyright activism terrorism?
I wrote a long comment and lost it but 54 is basically saying the same thing. Also, it's trivial for corporations to ruin the lives and livelihoods of ordinary people without any cost, so it's deeply fucked up than when an ordinary person transgresses somehow against a corporation, they can have the criminal justice system strike back. That this could have been a criminal case at all, rather than a civil one, seems to me to show that something is horribly wrong with the way the law works in this country.
The absolute zealotry of the whole push on IP in contrast to many bother areas of law is what intrigues/infuriates me.
The rise in intellectual property crime in the United States and abroad threatens our public safety and economic wellbeing.
That was from here. (Yes, I know, one quote out of context, so sue prosecute me.)
I don't think copyright has a higher heat/light ratio than numerous other Unfogged topics, or even equivalent. (Although that may say more about Unfogged discussions than anything else).
It's a high bar, to be sure, but I think it generally does. It's a more personal issue for some of the participants than a lot of the things people argue about here, and some of those people are also among the more argumentative folks in general. It's a volatile mix.
A veritable volatov cocktail one might say.
Point taken, Teo, but I'm going to mention it anyway. An interesting thing about Swartz's take on copyright/IP is that he viewed it as not only an inefficient, stupid, and unfair way to reward to content creators (which it is!), but as an area of law uniquely well suited to enable government control of speech. Here is his speech on SOPA/PIPA discussing this (transcript toward the bottom).
In college I knew--not very well--a really smart and idealistic guy who later joined an environmental activism group that firebombed some SUVs, and was then prosecuted as a terrorist. I've forgotten the amount of jailtime he was facing (I think he got out early), but it seemed completely obscene given that all the damage was to an object, not to any people. There's some thing where any ideologically-motivated crime gets lumped into "terrorism" and the government goes batshit, I think.
56, 57: large rightsholders don't believe that civil penalties will work, and in general can come up with no solution to the problem of how to maintian their current business model with profits adequate to sustain their enterprise in its current form besides escalating and ever-more-draconian criminal (and extra-judicial) penalties. That's my take on it. The question of where you draw the line and say "that's too much punishment for that act" or "it is not worth abridging those rights at that level to the furtherance of that end" is, essentially, where you draw the line and say you no longer support existing (large) rightsholders in their efforts to maintain their business the best way they see how to do so.
Less sympathetic defendants in copyright cases (who still did not, it is worth noting, make any kind of meaningful profit (they accepted donations to cover server costs)) are already suffering fairly severe criminal penalties. It won't do anything; the next steps presumably will include stiffer sentences sought more broadly as well as extrajudicial steps like six strikes.
62: Ah, I recall reading about that one. Happened in the general vicinity of a lovely gardens/museum/library complex that we were discussing here IIRC.
62: It's funny--my husband doesn't understand why I get so worked up about FBI overreach* because he doesn't think I'm likely to be targeted for any of my activism. He's probably right regarding the likelihood that I'll be caught up in an investigation, but of course that also misses the entire point. The chilling effect is real, and Aaron's example reminds me of the both the importance and the risks of acting bravely.
*I was raised in a left-wing religious/political community that was quite attuned to such risks.
Probably the richest (only very remotely step-linked) member of my extended family that I am aware of practices in the IP area (and I think has worked with RIAA specifically). It was somewhat comforting to my lazy ass halo effect-prone self to learn that he really does seem to be a jerk on multiple levels.
49
Yes prosecution is normal when you think somebody broke the law but the whole `let's overcharge and threaten terrible retribution in an attempt to avoid actually going before a judge' is pretty horrible. And so I do kinda think the prosecution has a lot to answer for here.
According to this there wasn't any overcharging. You may not like the laws and the penalties provided but they are what they are. Certainly offering a plea deal with a lot less time then you will get if you go to trial and lose puts pressure on you to take the plea but this is near universal practice in the federal system not something unique to this case.
In 1977, the year Judge Kane was appointed to the bench, the ratio of guilty pleas to criminal trial verdicts in federal district courts was a little more than four to one; by last year, it was almost 32 to one.
And I don't think there is much doubt he violated the laws as written.
I have good friends who I can very easily imagine getting themselves into similar situations to the JSTOR incident, and the thought of the government actually demanding jail time is pretty horrifying. Using your smarts to get around poorly implemented limits is really common behavior.
In fact I'd assume most people who are actually knowledgable about computers and networks have broken those laws.
54
8 gets it right. This and the Manning affair indicate a deep generational divide in this country. I might've considered fines a sane reaction, not torture and life ending imprisonment.
I am not going to defend the conditions under which Manning was held but anyone who thinks the government would be satisfied with a fine in a case like that is being unrealistic. And it's not like they don't warn you.
I was once locked out of JSTOR on all computers in my apartment. I had a long list of citations to collect and apparently the automated citation/paper downloader I was using - to be clear, this was an over the counter, well-known piece of software, not any kind of a special script - set off their monitoring system.
I had to find another network just to be able to access the link they provided in the YOU ARE LOCKED OUT NOW page I got sent to because they blocked that too. I explained what I'd been doing and someone wrote back the next business day to say they were sorry I'd gotten caught up in the net and I got my access back (actually, it was already back - I think the first step in blocking is just temporary).
70
In fact I'd assume most people who are actually knowledgable about computers and networks have broken those laws.
They've broken into a locked area to physically attach a device to a network to obtain data they know they aren't supposed to be accessing. I think that is fairly rare.
72.2 refers to a feedback/contact us link. I pointed out that people who are locked out can't access the form where they can object to being locked out and I think they said they'd do something about that.
It's not clear that it was locked, but certainly a significant proportion of my friends who know there way around computer networks have also picked locks at MIT. I've certainly trespassed at MIT.
The specific combination of picking a lock at MIT in order to have a better connection which you're using to circumvent some technical restriction is specific enough that probably only one or two people I know have done exactly that.
Locks at MIT are there to keep out people who don't know what they're doing.
75
The specific combination of picking a lock at MIT in order to have a better connection which you're using to circumvent some technical restriction is specific enough that probably only one or two people I know have done exactly that.
It wasn't a technical restriction it was a control put in to stop people from doing exactly what he was doing as I am sure he knew.
Yes, but I'm thinking of very similar things, getting more info from sources that are trying to limit the amount or format of the info it's giving you. It's really not very unusual behavior. For a dumb example, say getting around the times paywall.
Jesus Christ, am I going to have to write a ten paragraph comment on this? I'm too tired to do that now. I feel like the subtext here is "let's not directly accuse Halford of this guy's death" and the subtext of Tweety's comments are "let's do that." Maybe that's too narcisstic but if not what are you all tiptoeing around?
Anyhow, maybe I'll write something about my take on the relevant laws and issues tomorrow since that seems to be the demand. In the meantime, Orin Kerr, who despite being a jerk is probably the top legal academic on the relevant legal issues, had a good post on the purely doctrinal issues that I saw today. But most importantly let me say that, while i disagree with some of the analysis here and elsewhere, he seemed like a very remarkably good and effective guy, I shared many of his ideals, prosecutorial overreach is a real problem, and it's a horrible tragedy that he killed himself.
79
Yes, but I'm thinking of very similar things, getting more info from sources that are trying to limit the amount or format of the info it's giving you. It's really not very unusual behavior. For a dumb example, say getting around the times paywall.
Like downloading 1.5 million articles from the NYT archive? The laws are very broad but much narrower laws would still catch this case.
I thought that lockpicking was a common pastime at MIT.
The posts at Crooked Timber have, I think, been very good; also Rick Perlstein's.
As I observed elsewhere, for a good portion fo the weekend the entire front page of hacker news was concerned with Swartz (or with suicide/suicide prevention), which I found unexpectedly moving.
Mostly people are trying not to get caught (unlike Swartz who seems to have been trying to get caught), so they don't go for quite so much data. Cause honestly what are you going to actually do with 1.5 million articles? But as far as I can tell from Orin Kerr, a much smaller number would still break all the same laws.
For what it's worth I think academic research articles should be freely available and would be interested in practical ways of getting to such a world. But unfortunately lots of academics are invested in the current system.
83
... Cause honestly what are you going to actually do with 1.5 million articles? ...
The assumption is he had some plan to make them all publically available.
No one's going to hack the NYT to make their public domain articles available because their public domain articles are available already.
It's worth noting that even Halford has been open to the idea that IP laws are overly restrictive when it comes to academic publishing.
I get why Swartz (and others) would target JSTOR*, but I don't get why he apparently did not limit himself to public domain articles.
*Sure, it's a non-profit and yes places like Elsevier are worse, but it's still responsible for gobbling up a lot of journals - it's actually got a lot of money and it's expanded quite a bit - and unlike the for-profits JSTOR presents itself as more in line with the scholarly and public interest.
I wouldn't target them myself, but I haven't targeted anyone. I don't think they deserve much praise for their peep through the keyhole service. And their privacy policy for that service is apparently as bad or worse than what you get with places like Facebook.
66: my husband doesn't understand why I get so worked up about FBI overreach
I also feel as though I get relatively little traction bringing up police and prosecutorial overreach/unaccountability with friends who are otherwise politically simpático. I can get some agreement when railing against misconduct which produces wrongful convictions - which is after all a novelistic staple - but a national cause célèbre allowing a zealous rant specifically against this type of abuse of power would be most welcome.
(I am frankly ignorant whether the case against the AUSA, et al., is right in every detail, but if this outcry can remove from office any relevant official pour décourager les autres, that's good regardless.)
Evidently I go polyglot when 3 a.m. approaches!
I also go pessimistic, though - it occurs to me that my largely apolitical FB feed has hardly noticed Aaron Swartz.
... that feeling is probably a clue to what I should link there in the morning, isn't it?
I remember the thread we had about academic publishing with Halford and Charley as being fairly productive, actually. What sets academic publishing apart, of course, is that the content creators generally get so little compensation, if any, for their work.*
*Textbooks being the great exception.
I wouldn't say textbook publishing really patterns with academic publishing. It's sort of its own weird little niche.
89
(I am frankly ignorant whether the case against the AUSA, et al., is right in every detail, but if this outcry can remove from office any relevant official pour décourager les autres, that's good regardless.)
Absent some major new revelation it's hard for me to imagine the AUSA being removed. This is how the system works, Aaron Swartz wasn't being singled out. I'm sure Martha Stewart and her friends thought the prosecutors were being mean also.
But the ordinary practice is to charge all the possible offenses committed in the indictment, even if they overlap, and then let the jury sort them out at trial or else drop some of the charges in a plea deal.
Ugh for reals? Don't you guys just do lesser includeds?
In general I think US Federal criminal procedure is a mess, and saying that oh yeah that's in accordance with US practice is not really a great endorsement.
Swartz may have been poorly served by his Harvard Law professor legal team, of he may have ignored their advice as many rich white kids accused of serious crimes do, but he orchestrated a perfest storm of "ways to piss off a prosecutor." He would have had a much better shot at leniency if he had kept a lower profile earlier in the process. Prosecutors expect at least some acknowledegement from a defendant that he did something wrong, and they really hate the self-proclaimed outlaw heroes who claim their legal violations were in the sedrvice of a higher good. They also don't appreciate being claled stupid or corrupt by defendant and his lawyers. They don't much like superhero pro bono legal teams, especially in the support of a defendant who could easily retain a competent lawyer to guide him through routine plea negotiations. And they have a lot of trouble letting off people who have umlimited money available (and who don't care about money) with a fine. Community servirce also seems inadequate as punishmewnt for someone who spends his life doiong community service sorts og things.
Swartz was also poorly served by the MIT unwritten policy of non-prosecution of rich white kids for property crimes. Relying on a policy with unclear parameters is a bad idea. Its also a bad policy, which never extended to homeless alcoholics who entered MIT closets for shelter from cold weather. A number of former MIT students have gotten into legal trouble by assuming that the rest of the worlds would be as accepting of their small crimes as MIT was.
More sympathy for the prosecutor: It seems very likely that the intent of the actions was to destroy JSTOR, which is basically a decent organization. JSTOR's choice not to prosecute after heavy lobbying seems like the decision to drop charges of a battered spouse of a prominent community member who has lots of rich friends.
Finally, I have seen the concept that the prowecutor has "blood on his hands" in comments here, among other places. Not true, any more than it was true of the prosecutors who questioned Joe Paterno shortly before his death, possibly speeding up his demise. A suicide can be understood as evidence of guilt as much as evidence of misprosecution, but it's neither. It is most likely a consequence of mental illness. If this highly publicized suicide impels others to seek counseling or medical help for depression that will be a good thing.
Sorry I won't be around to discuss today. I had a few thoughts I wanted to put out. Symnpasthy for all of those who knew Swartz, who sounds like a wonderful man as well as a prilliant one.
The gist of the first para of 95 seems to be that US prosecutors are total fucking arseholes, which may be true but hardly endears them to me, or dispels the notion they fucked this one up.
One thing worth mentioning is Swartz's previous liberation of PACER data, which likely pissed off a fair number of federales despite being unquestionably legal. I wouldn't be surprised if there was some element of explicit retribution going on.
Globe article ganked from TPM:
Swartz and his lawyers were not looking for a free pass. They had offered to accept a deferred prosecution or probation, so that if Swartz pulled a stunt like that again, he would end up in prison.
Marty Weinberg, who took the case over from Good, said he nearly negotiated a plea bargain in which Swartz would not serve any time. He said JSTOR signed off on it, but MIT would not.
Cause honestly what are you going to actually do with 1.5 million articles?
Thats a huge dataset containing lots of interesting information. Short of sharing the data openly with the world, surely there is still lots of potentially fruitful analysis that can be done by, e.g., scanning for patterns of comonality accross articles in widely different fields.
If similar equations are being used in papers on, say, oceanography and materials science, this kind of broad-based analysis would be an excellent means of bringing such patterns to light. There are potentialy actual advances in human knowledge to be had here.
Yeah. There is a fair bit of work being done of that type, or at least in theory. It's the sort of thing that gets trumpeted as a potential reason for providing good machine harvestable metadata and content, persistent URLs, and the whole panoply of linked data/semantic webby stuff.
99: But Big Academia says no.
It's like when they bought up all the streetcar lines private laboratories just to tear them down.
(Actually that kind of corpus analysis* is fascinating.)
*That term looks to maybe just refer to one specific type of linguistic analysis?
It seems that Aaron's life very strongly mirrored his values, and that he represented a tremendous force for good in his very (too) short life.
I admit I hadn't heard of this guy before now, but according to Wikipedia he went to Stanford, helped write some reasonably clever software, founded a company, sold it for a large amount of money and did some volunteer work for Wikipedia. What does the "tremendous force for good" thing refer to?
Don't go into the eulogy business.
"Dearly beloved, we are gathered here to pay our respects to Steve, who, let's be honest, could have done a lot more if only he'd applied himself."
I agree with 96. The job of prosecutor in the US largely attracts people who lack the character necessary to do the job. Their job is to serve justice, not get petty revenge on unsymathetic people who piss them off.
the MIT unwritten policy of non-prosecution of rich white kids for property crimes
The belief that this is about the kids being rich and white rather than a judgment on the relative egregiousness of the crime seems to be a pretty big dividing line here.
I don't know if someone has already said this, but the free access to JSTOR is extremely limited. Notwithstanding how many 'free' articles there are (it appears that most of the content from the past 10 years does not come up as 'free,' but I haven't done a huge search), you can only read three articles every two weeks.
102
With grief, gratitude for his service, and affection, The Internet Archive establishes Aaron Swartz Collection
AS apparently got around
Yeah, what Keir and Walt said. Unimaginative seems to be arguing that we know prosecutors are assholes, and thus should be as deferential as possible to them to avoid trouble. The same argument is often applied to cops, and even to criminals. This strikes me as just another way of blaming the victim.
I feel like the subtext here is "let's not directly accuse Halford of this guy's death" and the subtext of Tweety's comments are "let's do that." Maybe that's too narcisstic but if not what are you all tiptoeing around?
I certainly did not intend to do that. I don't think anybody -- not the prosecutors, not anybody -- bears responsibility for his death. The prosecutors certainly bear partial responsibility for trying to ruin his life for no good reason, which one might suspect is one of the factors that led to his despair, but that's them and definitely not you.
If you are to find yourself anywhere in my comments (because of course I was thinking of you!) it does seem to me that supporting criminal prosecution for intellectual property crimes (which I think you probably do? I certainly could be wrong (and I do know that our ideas about optimal end states for intellectual property actually align relatively closely)) will (absent a massive, highly implausible overhaul of the legal system) lead more-or-less ineluctably to prosecutorial overreach of this sort, both because that's how prosecutors work and because the inherent ineffectiveness of these kinds of prosecutions leads their legislative proponents to keep upping the ante in an effort to reach the (imaginary) threshold where it makes a dent.
Swartz was also poorly served by the MIT unwritten policy of non-prosecution of rich white kids for property crimes.
Well, again: first, it's completely absurd that the charges for crime that doesn't actually hurt anyone can amount to, essentially, life in prison.
Second, in what sense is this a "property crime"? No property was damaged or stolen.
charges, punishment, I'm just going to freely interchange nouns and hope you know what I mean
103: no, it's an honest question - what did he do? Thousands of people seem to think very highly of him and I'm just curious to know why.
Is there any evidence whatsoever that MIT's unwritten policy does not extend to poor students or students of color? Or are you just being lazy?
I think the idea is that any student at MIT, is, if not rich and white, privileged enough that they might as well be. Which is a lazy way of putting it, certainly, but in context it's clear what it was meant to communicate.
It's a property crime because that's where it lives in the law books, basically.
Also it seems to me that 109 is basically an argument for the legalisation of everything in the US and the abolition of the criminal code full stop, which is just as large a shift as "moving to a less crazy world".
(Oh fuck, I just realised I really don't want to know Kim Dotcom's ideas about all this stuff.)
Also it seems to me that 109 is basically an argument for the legalisation of everything in the US and the abolition of the criminal code full stop
It's not.
I think the idea is that any student at MIT, is, if not rich and white, privileged enough that they might as well be.
I have a hard time believing this is true in any meaningful way. There are MIT students who come from extremely impoverishes backgrounds, sometimes from the third world. They might be privileged relative to the community they grew up in, but in their current context I wouldn't think they're privileged.
110
Well, again: first, it's completely absurd that the charges for crime that doesn't actually hurt anyone can amount to, essentially, life in prison.
IIRC according to one of his lawyers the prosecutors were going to ask for 7-8 years if he went to trial but willing to plea down to 6 months. The 35 (or whatever) year figure is probably purely theoretical arrived at by summing the maximums for all charges. This is not how sentences are determined in practice. Hence all the stories about some convicted person facing x years in prison who actually ends up getting some small fraction of x.
Why not? Criminal prosecution is not a massively effective way of controlling any kind of crime, and the same structural factors of the legal profession apply to any part of the code.
114: it's an obnoxious way of putting it though which is both inaccurate and meant to tar disagreement as racist. It's lazy, wrong, and obnoxious.
Also it seems to me that 109 is basically an argument for the legalisation of everything in the US and the abolition of the criminal code full stop
This is just made up. You can't even say that it's a slippery slope.
119: I wasn't actually arguing for a reform of the legal profession.
Is it known whether the prosecutors were asking for him not to be allowed to use computers in addition to pleading to everything and 6 months in jail?
121 no it really isn't. If you think that the US can't prosecute one kind of crime without huge injustice, it seems pretty fair to argue it can't prosecute any kind of crime without huge injustice.
(Shearer alleges the prosecutors were seeking a ~6 year penalty for having the temerity to put them to their proof. That's not unique to copyright cases, and it's pretty disgusting.)
110
Second, in what sense is this a "property crime"? No property was damaged or stolen.
I think trespass is classified as a property crime. And he interfered with the functioning of MIT's computer network. And of course making unauthorized copies of copyrighted material sounds like a property crime to me (what else would you call it?).
If you think that the US can't prosecute one kind of crime without huge injustice, it seems pretty fair to argue it can't prosecute any kind of crime without huge injustice.
So a person can't ever talk about one thing without talking about everything else? Um.
127 -- it just seems to me to be pretty disingenuous to claim that your solution is preferable because it avoids dealing with the massive problems in the US justice system when the reason it avoids them is that it doesn't fix them.
123 continued: rather, I was saying that it is important to understand that when you designate a certain type of behavior as felonious, in an attempt to curb it, this is what you get.
Secondly, I would argue (have argued) in the specific instance of IP that criminal prosecution is not effective, has not been effective, and will not be effective, at least in the absence of massive escalation in scale of punishment, infrastructure for enforcement, and restriction of privileges on the part of non-infringers (and probably not even then).
Does the above paragraph probably apply to other parts of the criminal code? Maybe so. Is there an independent judgment to be made about whether the costs are worth it in those cases? Maybe so. They aren't what I was talking about, though.
ajay: I didn't know Swartz myself and so can't really speak to why people felt so strongly about him, but CT is a decent place to start if you want to read some stories about him. He seems to have been unusually generous to a lot of people with his time and skills.
128: I'll try to remember to avoid opining on anything about the US justice system if I don't have a plan to fix the whole thing.
A selection of big things Aaron did: Major contribution to the Real Simple Syndication (RSS) specification, more-or-less co-founder of Reddit, made about 1/5 of the Public Access to Court Electronic Records (PACER) freely available, co-founder of Demand Progress and major contributor to the prevention of the passage of the Stop Online Piracy Act (SOPA) and related attempts to break the internet.
Wait, that's what RSS stands for? That's a delightfully whimsical thing to learn upon waking up!
|?
Interesting. Just went to check and Wikipedia redirects "Despair" to "Depression" with no separate entry.
I do consider them separate states, with a lot of possible overlap etc. There are glib and reductionist ways to separate them, for instance, depression is the superego beating on the id, father/authority punishing a child whereas despair is the ego beating on the id.
Depression is the feeling that you yourself are worthless, despair the feeling that the world outside is worthless. Whatever. They are importantly different.
The disappearance of a concept from social discourse and/or the overwhelming predominance of a concept are significant social facts.
|>
134:PS:The Japanese are famous for for having a weak discourse about depression but a strong discourse about despair.
"Can't be helped" and "Don't Give Up" are ritualistic parts of everyday discourse.
"Sad? Everybody's sad." is another one.
re:95. Swartz wasn't represented by Harvard Law professors, but by some very very good white collar lawyers on the west coast. You may be thinking of some of the copyright/file sharing cases from a few years ago....
131 hey if you want to argue that a small scale inconsistent fix is better because it's easier (i.e exists absent a massive, highly implausible overhaul of the legal system) it's pretty fair cop to respond that it's only easier because it doesn't fix the big problem, which is that the US justice system is horribly unjust.
It's definitely a good idea not to subject people like Swartz to US Attorneys. What would be an even better idea would be to subject no-one to them.
(Also fundamentally you can't fuck with the ratchet effect on a small scale; you have to go big or go home on this home.)
A quick google gets This Article if you think I'm bullshitting
Japanese psychiatry has been particularly perplexing - and depression is its heart of darkness. The Japanese didn't do Freud or Prozac; and psychotropic drugs promoted institutionalisation there while they led to deinstitutionalisation here. And until very recently, in the face of one of the highest suicide rates in the world - three times that of the UK - the Japanese haven't had depression, either. "Suicides of resolve" have been an existential issue. Instead of depression, there has been an apparent aesthetic of melancholy (wabi-sabi), with men more affected than women.
...
Another striking Japanese trope that emerges from these pages is a message that you cannot change personality, and that getting people to explore the self is either arrogant or foolish, as it opens them up to colonisation. Exploring social forces, however, is fair game - unless you're a woman. There are echoes here of the 1950s; Japanese women resent their lot a good deal more than men, but for them changing the system is even less of an option.
My italics.
I was going to bring up Chikamatsu's suicides, but honestly, he is as much or more complicated than Shakespeare. Yes, fucked-up society's to blame, but what you think you are going to change society, so what is the point of hoping, but...
125
(Shearer alleges the prosecutors were seeking a ~6 year penalty for having the temerity to put them to their proof. That's not unique to copyright cases, and it's pretty disgusting.)
The same lawyer was quoted as claiming to believe that even if Swartz had gone to trial and lost he likely wouldn't have gotten jail time (which in my view is preposterous but I could believe he was likely to have gotten less than 7-8 years. A big factor would be the monetary value assigned to his crimes which would have course have been a contentious subject).
As for plea deals you are effectively criticizing the prosecutors for offering a deal that was too generous, would offering 4 years really have been better?
114
I think the idea is that any student at MIT ...
As I understand it Swartz was not a student at (or have any other formal connection with) MIT. He was connected with Harvard but chose for whatever reason to pull this stunt at MIT.
Much as Swartz may have been a great guy, and lots of bloggers and online friends/acquaintances and people I respect really seem to rate him and the things he did, some of the coverage is getting a bit 'blogosphere People's Princess'.
I would expect as a Harvard alum who has never been officially affiliated with MIT to get treated better by MIT than Harvard on this sort of issue. Certainly in my days it was better for a Harvard student to get caught breaking and entering at MIT than at Harvard.
Certainly in my days it was better for a Harvard student to get caught breaking and entering at MIT than at Harvard.
Did they use to do this a lot in your days? I'm struggling to think of a major university that I'm familiar with where burglary by the students is so common that one can generalise about it, and coming up empty.
It was pretty rare at Harvard because of the lack of connectivity between buildings and interesting places to go. That said, I did know second-hand some people who found a way into the steam tunnels and a student in that group did get in big trouble. At MIT, yes it's common, it has its own wikipedia page! Yes I've done it.
I have had a look at CT's coverage and, yes, 142.
re: 146
Particularly the most recent post, which is, frankly, fucking ridiculous.
133 - Like everything else involved with RSS, that's a fraught and stupidly politicized question. (No, it's not originally what RSS stood for, but I believe that's what Dave Winer retrofitted the acronym to.)
144, 145: Unfoggetarian mostly covers it, but MIT had (has?) actual guide-led tours for freshman. Not officially sanctioned, obviously, but yeah, it's a thing. I used to go explore there as a high school student.
(I think they may have cracked down on the leading of tours, and I think at some point they got pissy about non-affiliates taking part. Don't quite remember.)
Also while in high school, I used to go hang out in the computer labs at MIT and play xtrek; the root password for all the terminals was the same, and was widely (really, really widely) known.
Its also a bad policy, which never extended to homeless alcoholics who entered MIT closets for shelter from cold weather.
Are you saying that such a homeless alcoholic would have gotten years in jail? Swartz's charges were totally disproportionate for *anyone* accused of this kind of crime -- rich, poor, black, white, whatever.
151: I've read several places that the closet Swartz "broke into" was also used for storage by a homeless man. As far as I know said homeless man has not been charged with any felonies.
147: jesus. Swartz is a hero in the eyes of the public, and Obama is the Tsar who slaughtered the 1905 marchers?
Secondly, I would argue (have argued) in the specific instance of IP that criminal prosecution is not effective, has not been effective, and will not be effective, at least in the absence of massive escalation in scale of punishment, infrastructure for enforcement, and restriction of privileges on the part of non-infringers (and probably not even then).
I'm not technical enough to know how possible this is, but it seems to me a real danger is an effort to address this issue by fundamentally change the nature of the internet/IT to build copyright/IP controls into its structure. I think this is what Swartz was getting at in the speech on SOPA/PIPA that I linked to back up in 61. Such an effort would involve tracking and censorship on a massive scale, and would be a big assist to social control efforts and governmental power generally. Needless to say, it would also privilege revenue flows to rights holders over the public interest in figuring out a way to let the drop in the cost of reproduction benefit everyone as much as possible without unduly discouraging content creation.
153: Corey Robin has a penchant for overkill. I think his last post basically said that Thomas Jefferson was a Nazi (or: one of the intellectual founders of fascism anyway). I don't hold any brief for slaveholders either, but it was pretty absurd.
144: There really is a strong culture of winking at non-malicious mischief at MIT, even if it consists of conduct that's technically criminal.
OK, let me type up a few responses. I want to preface this by saying two things. First, Swartz does seem to have been a remarkably productive and good hearted person (I didn't know him, of course) and his suicide is raw and a tragedy. That is the most important point. While I'm going to try and dispassionately analyze some of the legal and copyright policy issues involved, none of that changes the most important point. I hope that can be understood as going without saying in everything I'm going to write. Secondly, I'm not a criminal lawyer at all, not even a white collar one, and many of the important issues here really have to do with criminal law issues and not anything to do with copyright law
The first issue here is "what was the crime of which Swartz was accused, and why would that possibly matter?" As I read the indictment, the alleged crime is as follows: Swartz sought to access the JSTOR database, by a variety of basically fraudulent means (that is, he knew he had to do things that he knew were illegal/contrary to the policies governing JSTOR) in order to download the entirety of the JSTOR database, including copyrighted and non copyrighted academic articles, and release them all to the public through a file-sharing site for free and public access.
Now, there may be an issue as to whether or not that was actually Swartz's intent. I'm not close enough to the facts to know what the evidence is on each side -- maybe he was just conducting some private data mining project. But, reading the indictment and looking at why the government thought it was prosecuting the crime, it's clear that the theory was that Swartz intended to release the entirety of the database -- including portions that were privately owned -- to the public as a whole. The main legal theory for prosecution is wire fraud, but wire fraud based on the specific intent to download the entire archive and release it.
That's very important to keep in mind, for a number of reasons. First, some people, in this thread and elsewhere, are arguing that Swartz was being outrageously prosecuted for something ordinary people do all the time -- sending a single JSTOR article to a nonmember, copying a single JSTOR article to circulate to students in a seminar, etc. But that's not the nature of the alleged crime here -- Swartz was singled out for government prosecution because (again, allegedly) he wanted to effectively destroy the entire proprietary nature of the JSTOR database and circulate its articles into the public domain generally. To use a (probably banned) analogy, this isn't like Inspector Javert prosecuting Jean Valjean for stealing a loaf of bread; it's like Inspector Javert prosecuting Valjean for stealing all the bread in the biggest bread factory in the world and distributing it for free to the population. Even if you think the latter course of action is just fine, there is obviously a big difference between the two cases.
Second, if the government proved its case, this was not a "victimless crime." I'm going to write up some thoughts on copyright and academic publishing below, not sympathetic to the current system or the publishers, but if Swartz succeeded the result would be a disaster for both academic publishers of the articles and JSTOR itself. If the publishers weren't able to limit distribution after Swartz's releasing them to the world, they would have lost enormously valuable property that they paid for and to which they had a legal right under current law. As for JSTOR itself, it's likely that if Swartz had succeeded in his (alleged) plan, that would have been the end of it: publishers simply would have stopped putting articles into the system. Now, you may not like publishers or JSTOR or think that their interests matter, but they held very significant legally enforceable property interests that would have been significantly harmed by Swartz's actions.
What would your reaction be if it were established that his intent was to release only the public domain portion of JSTOR (which I understand to be significant)? I'd misremembered, and thought that was known to be the case, and it seemed like an interesting question.
142, 146: again, I didn't know Swartz, but I know many people who did know him. My sense is that while a) you're right on some levels b) he wasn't just an unusually goodhearted person, he was an unusual committed activist who had a skill-set that, in most every instance, commands huge compensation on the market, and yet gave away his labor for free. Which is to say, not only did he walk the walk, which is unusual even among committed activists, but he had superpowers which he devoted almost entirely to doing good (after, yes, he did well). And again, on top of that, he was reputed to be incredibly kind and decent. All in all, a bit of a hero. Plus, as must be obvious, that he died so young, perhaps in part for doing what he believed in, makes him a martyr to a cause that's awfully popular on the internet.
He was, verily, like a candle in the wind.
158.last doesn't make a lot of sense to me. There are already journals that publish content that's freely downloadable by anyone. They're still making money because university libraries still pay them. I think the whole system is absurd and destined to collapse, but it certainly hasn't been the case that people who are publishing content that's freely available and charging for it haven't been able to collect payments for it.
A second question is "why would we ever criminalize conduct like this at all, as opposed to civil penalties." As I said above, the issue in this particular case is not picayune (in lawyerly jargon: de minims) copyright infringement or unauthorized access to computers, which is effectively unenforced. It was (allegedly) an attempt to release the entire JSTOR database to the world. But why would this entail jail time, as opposed to just a civil penalty?
The reason for having criminal penalties in this area (as opposed to civil penalties) is essentially the same reason we have criminal penalties for any kind of property crime. Civil penalties are intended to provide compensation for the loss, not punishment. This generally doesn't work, we think, for property crime. If you steal a bag of cookies from the store, and the only penalty, if caught, was that you had to pay the store for the value of the cookies you had stolen, this would both (a) probably under-compensate the store owner for the loss, and (b) under-deter future criminals from committing the same conduct. There's an additional issue which is that most people are likely to be judgment proof as to significant crimes, so that without criminal penalties there may be no effective punishment at all for the conduct.
Applying those general principals to this specific case, the reasons for applying criminal penalties are similar. If you assume that the publishers/JSTOR/rights holders had any potential rights in the articles (I'm going to discuss the policy behind that below), as they clearly did under current law, there's no very good reason to think that an attempt to massively and effectively deprive them of those interests would not be criminally prosecutable. In Swartz's personal case, as unimaginative pointed out above, neither a fine nor a requirement to do community service would likely have been particularly deterring, so there may have been reasons to seek additional jail time.
There is a separate question of "how much criminal punishment" which I'm not addressing here, and may address below. In my opinion the sentences for most federal crimes, not just copyright crimes, are too long, and I don't know the specific details of the sentencing issues in Swartz's case. But there's a clear-cut case for criminalizing conduct like this, and not just requiring civil penalties.
I think the whole system is absurd and destined to collapse
Capitalism? Agreed. We just have to find a good alternative.
For ajay, I thought Greenwald did a nice job making the case for Swartz as a "hero."
As for JSTOR itself, it's likely that if Swartz had succeeded in his (alleged) plan, that would have been the end of it: publishers simply would have stopped putting articles into the system.
Not really, and this is of the form that because this very day you can buy a screener of Zero Dark Thirty on the streets of Honk Kong, therefore nobody will buy tickets to ZDT and ZDT will not actually exist. Wait...
If all academic work were available on each professor's webpage or even centralized with a university index, there would still be a profit-making incentive for a single site with good search engine. Or whatever.
As a matter of fact everyone does not get their copy of War and Peace from the Internet Archive. Amazon still sells a few.
159 et al, I'm going to try to write out some more thoughts generally before responding.
A third question is "how outrageous is it that the government effectively wanted to punish Swartz -- that is, to not let him off easily with a light sentence --for making this a big public issue and protesting his innocence."
Here, I don't really have a firm view, but it is really really really important that people remember that this problem is not specific to Swartz, at all. It is how our criminal justice system works, at all levels, state and federal, and may be the most important aspect of how it works. Basically, the deal the criminal justice system offers you is as follows: if you admit guilt, cooperate, and don't make a big deal of things, you get a light sentence; if you do make a big deal, you have a right to prove your innocence before a judge, but the system will come down on you far more harshly if you lose. That is the reality that all prosecutors and criminal defense lawyers experience every day, in connection with every crime.
For the most part, people who are charged with crimes are in fact guilty of them, or of some portion of them, so in that sense the system "works" in terms of processing guilty people efficiently into the system. In this particular case, it appears to me (based on what I've read, I could well be wrong) that Swartz was sort of in the worst of both worlds: he was probably likely to be found guilty at trial, and was making a big public deal about his case. That's exactly the wrong posture for getting a light sentence. But in any event it's really important to understand that the plea bargain issues have nothing to do with Swartz's case specifically, but are a general feature of the current system.
167 I completely agree with. I'm absolutely sure Swartz was a wonderful person, but I'm somewhat uncomfortable at the outrage about his treatment insofar as it can be parsed as "How dare the system treat a special person the way it treats all the rest of the people it processes?" The system itself is a ghastly horror in many respects, but I don't get the sense that he was treated unusually badly given the circumstances.
167: I basically don't give a shit about Swartz at all, but the importance of the case is how it illuminates the brokenness of US criminal justice system. There are bankers who broke the law and caused economic damage on a scale that a computer hacker couldn't have managed if he had the same goals as Dr. Evil, but they essentially get a pass because criminal justice has become entirely subservient to political goals.
167-168: as I understand it Swartz was offered an unusually tough plea bargain involving no reduction in charges and years of jail time, even if he did not go to trial. For a first-time non-violent offender this does seem like unusually bad treatment and not typical of the system. At the very least, we shouldn't be assuming that it is.
But what I really showed up for was this:
JW Mason comments at Interfluidity econblog
who were happy to convert those earnings to fixed capital since they were tied to the firm anyway; to rentiers with a strong preference for holding their wealth in financial form. This means that new investment needs to pass a much higher hurdle rate than before. (One nice way of seeing this empirically is the rise in Tobin's Q after 1980 from less than 0.5 to around 1.) There may also have been a decrease in physical capital as a source of profits, toward IP-type rents; this would also tend to depress investment demand.These are secular shifts, not cyclical. The cyclical phenomenon is the intermittent masking of this long-term fall in investment demand by asset bubbles, first tech then real estate. In the absence of a bubble inflating expected returns, desired investment even at zero interest rates may not be enough to sustain full employment.
Now I don't claim to understand what is going on, but key terms might Marx's "fictional capital" or "imaginary capital" or "financialization" and trying to re-conceive things like $50 trillion dollars in structured investments vehicles as Intellectual Property
Now creating a Grand Theory of Everything to explain the persecution of an Internet Saint, but the book was titled Capital and was pretty inclusive. How did my hour between 3 and 5 and that bolt laying on the factory floor, or the said in the Mojave gain a price and exchange value.
They want everything now, everything, they want to name it, price it, and control who can use, buy and sell it. Everything.
In Swartz's personal case, as unimaginative pointed out above, neither a fine nor a requirement to do community service would likely have been particularly deterring, so there may have been reasons to seek additional jail time.
So the fact that Swartz was an unusually public-spirited individual means he must be dealt with more harshly by the law.
Fuck, this isn't about an overzealous prosecutorial system, because we are not seeing zillions of banksters behind bars.
It isn't about prosecutors at all.
The other aspect of this case that's unusual, is that it seems the main issue is that he broke various terms of service, not that he broke a law. (Of course, there's a law that has been read to criminalize breaking terms of service in this way, so of course he did break the law, but I hope the non-legal distinction I'm trying to make here is clear even if I don't have the right words to describe it.) This is particularly bothersome because ToS are often ridiculous, because it's non-democratic to outsource the law that way, because everyone breaks ToS regularly, and because we have so little leverage against the corporations writing ToS. There's something really really scary about the government sending people to jail for breaking ToS.
Not exactly, I don't think. He broke various terms of service in order to obtain a database of substantial monetary value -- while there's a good argument that this was a good, Robin-Hoodish thing to do, it's more like robbing from the rich to give to the poor than it is like a mere violation of terms of service. The wire-fraud count would stand up even if violating terms of service weren't criminalized (which you're right, it shouldn't be).
Finally, there is the question of "why are academic articles subject to copyright at all, and what can we do about this."
This is a good question. The general public policy case for copyright in specifically academic articles is much weaker than that for other commercial products. The function of copyright is to encourage cultural production and to provide a mode of compensation for cultural production that does not depend on either direct state payments (socialism) or patronage funding from rich people (patronage). But most university professors and authors of academic articles are already more or less fully compensated by their salary from the university (which, in turn, is ultimately funded by some combination of socialism and patronage). The copyright in the academic article does little or nothing to provide compensation for the academic work. Moreover, academic work is specifically being created for the purpose of public dissemination, not private profit.
The tragedy in this particular case is that there is enormous progress that can be made on this issue without violating current law, and Swartz's efforts and talents would have been much better devoted to those methods than the method he in fact chose. First of all, it is important to remember (but is sometimes forgotten) that there is nothing more than inertia keeping academic publishing in the hands of private copyright owners. If Stanford wanted to, and the historical profession agreed, Stanford could simply create a "Stanford Journal of History" that was free and downloadable around the world and available to all. There is no reason other than organizing and some (real, but not necessarily fatal) funding constraints that all academic publishing going forward shouldn't be released to the public for free, and nothing in current law prevents that from happening. To be sure, the organizing, inertia-breaking, and funding necessary to get such a new system off the ground are real, but such organization is possible, the universities can fund it, and there's no good reason not to do it. Swartz's talents would have been far better directed to such an effort.
That still leaves the problem of what to do with the academic production of the past, which is a genuine and significant problem. Largely due to a nonprofit-forprofit partnership regime that may have made sense in the past but makes less sense now, we have a situation in which significant academic work is held under copyright by for-profit publishers. Now, those publishers did (and do) provide distribution, print, other services, so it's not like they're doing nothing, but they are pretty clearly unnecessary in the online world, but have a business model that requires payment. Here, though, too, there's not much stopping a determined group of universities from breaking through the current system. Whether journal by journal or as a whole, a university or consortium of universities could buy back private rights to academic articles from the current rights holders and release them. Yes, that's expensive, but the publishers paid in good faith to acquire the rights to the articles and require some form of compensation. Beyond that, efforts like JSTOR, which provide some (limited, imperfect) public access, and private access for researchers in its member institutions, are a good thing and ensure some effective public access to the information. That system isn't perfect, but again there's an enormous amount that could be done to improve it well within the boundaries of the law.
Paradoxically, attempts like Swartz's may make it harder for such efforts to succeed -- if publishers fear that putting their articles onto JSTOR means that they are effectively giving them away for free forever, they may be less likely to do so, or withhold future articles from JSTOR.
I agree with 168 even though I think Swartz was a good guy and his treatment was basically indefensible. Re: 170 -- this is what prosecutors do. The criminal justice system is horrendous to navigate if the prosecutor has a mad on for you, even for a guy like Swartz, an innocuous, well-read wealthy white guy with some high-powered lawyer friends.
Re 158.b, that's the government's assertion, but people who knew Swartz better than I did (which is to say "in any way other than through some of his work") think it's highly unlikely and that what he was interested in doing was stripping out the non-public-domain JSTOR content and releasing that to the world; it was probably doing essentially this with the PACER/RECAP hack* that got the bad players in this whole tragedy mad at him in the first place.
* In the MIT sense.
Do I understand right that the idea behind the wire-fraud count is that changing your IP address or MAC address is considered the equivalent of lying about your identity? Would it not have been illegal if he'd just bought a different laptop the second time?
178: I'm the last person to understand what, technically, he was doing. But as I understand it, he started downloading stuff, MIT noticed and tried to stop him, and he did something, doesn't matter what, so that they wouldn't know he was still doing it. That's being deceptive, however you do it -- I don't think using a different laptop is different from doing something clever with the same laptop.
176.4: It's important to note that a key role here is played by how copyright law has been interpreted in reference to digitized content. That is, the rights that the publishers have now are not rights that anyone knew were carried by copyright when the authors signed away their copyright.
I agree with snark at 177.1. The criminal justice system has swung too far to the right. The prosecution has all of the power, and very little accountability.
Also, thanks for the breakdown, Halford.
Swartz was clearly brilliant. It seems shocking to me that he would not consider that his actions would likely result in a felony conviction. I would like to know more about what the plea negotiations were. Often, in criminal cases, the defendant will tell you "Tell the prosecutor that I will do probation!" Oh gee. How nice of you.
It sounds like his lawyers offered a "deferred judgment." In Va, that essentially means that you would not end up with a conviction after some lengthy period of time.
I do not do federal criminal work, but this case sounds like a case for a felony conviction with suspended jail time and a large fine. Maaaaaaybe six months to a year. It doesnt sound like a case where he does not end up with a conviction.
178/179: That counts as wire fraud? If that's correct, I don't know a single engineer who hasn't committed wire fraud.
170 -- I read that there was an offer of 6 months in prison. This is quite a discount from the 6 years the government (reportedly) intended to seek after conviction. But more than the offer from Swartz' side that MIT reportedly refused to sign off on.
To make 179 more clear, it used to be that libraries bought articles and then kept them. They didn't have to keep paying year after year to keep the rights to the old issues because that's not how copyright worked. But since accessing digital works necessarily involves "copying", the law has been interpreted in a way that gives huge valuable new rights to publishers and takes them away from universities, libraries, and authors.
Stirling Newberry says the AS persecution was all about oil.
Oh well. I do not get my ideas from Newberry. But SN, as is his wont, says much else. Since no one will link thru:
Enter Intellectual Property, and the role of academia. The West had two important rents: one is the path dependency of finance, which the very nature of the oilarchies could not easily duplicate, and the other was the path dependency of knowledge creation, which the oilarchies did not want to duplicate.
Thus part of the drive to create streams of income, was to propertize information, at the same time, cut the oil cost of its storage and transmission. These two goals are in fundamental contradiction: knowledge, the more it is digitized, and internetworked, acts less and less like property, and more and more like heat. It diffuses.
Academia is part of the path dependent rental advantage of the US, and as such, its price rose through the roof, going up by far more than inflation for the last 30 years.
It is this connection: the need to create rents to say ahead of the ability of low stake holder resource billionaires, that made IP and Academia behave like rents. The problem is that while academia does, indeed use rents all the time, for example, naming mathematical theorums after the creator, scientific laws after the discoverer, footnoting and textual apparatus, these rents are difficult to impossible to monetize directly. Academic rent created the drive to larger and larger administrative systems, and more and more power being given to people who controlled the money flow. With every passing year, there was the need to squeeze larger rents.
My understanding is that Swartz actually didn't make a big public deal out of the case. But he'd been in the NYT for the PACER thing, and had lots of prominent supporters so there was a big deal when he was arrested. Afterwards it sort of quieted down except for a few "where things are with the Swartz case" articles. I could be wrong, but I don't think Swartz said much at all about JSTOR after the arrest.
Also, he appears to have been running out of money and it sounds like he wasn't getting much support for a legal defense fund. He was initially being represented by people like Lessig but for reasons that aren't clear to me they stepped away from the case quite some time ago. I don't think any of them denounced the prosecutors like they've done recently until after Swartz committed suicide, though I'm sure they were critical of the prosecution. I don't know what Swartz's actual lawyers were saying during the case.
There are assumptions that he was extremely rich and had access to unlimited resources and was holding himself up as a martyr and I don't think those ended up being true by the end of 2012, though they might have been partially true in early 2011. But again, I didn't read the news on the case every day.
For what it's worth, I always expected he'd end up in jail for some amount of time. Sadly, it doesn't sound like he realized that's what he was risking until after his arrest.
During plea talks held in the months before his death, federal prosecutors told Aaron Swartz and his attorney that the computer prodigy must spend six months behind bars and plead guilty to 13 federal crimes in order to resolve the criminal case short of a trial.
Swartz's lead defense attorney, Elliot Peters, said today that both he and Swartz rejected the plea deal offered by the office of US Attorney Carmen Ortiz, and instead were pushing for a trial where federal prosecutors would have been forced to publicly justify their pursuit of Swartz.
But at the same time, Peters said, he was worried about Swartz's emotional vulnerability and planned to try and bypass trial prosecutors, Stephen Heymann and Scott Garland, and use a letter-writing campaign from local academics to convince Ortiz to change the proposals.
I doubt the AUSA is losing much sleep about his offer. I wouldn't want to be in the place of Swartz' defense attorneys.
170: I just saw the coverage of the 6 month offer too. That changes my view of the case somewhat -- I was under the impression that the government was asking for at least 7 years on the plea bargain and 30 years at trial. But the 7 years is now apparently what they were asking for at trial.
The 6 month offer is more reasonable within the framework of the US criminal justice system definition of reasonable, I guess. Asking for a guilty plea to all charges was also apparently a sticking point. I think the best way to conceptualize what Swartz was doing was civil disobedience meant to highlight an unjust law. There is a risk of prison in doing that.
More from Newberry:
The collision course is that the enforcement culture needed to turn everything into property*, and to incarcerate those who disturbed the system, is more than a marginal utilitarian decision, it is a social choice, and creates a class of people whose role it is to torture, threaten, bully, kill, and torment others.
Understand that everything isn't being turned into property and then protected by an enforcement culture
The enforcement culture, or hegemony is the point and purpose of turning public thought into private property
The idea that prosecutors are just overzealous is bullshit. There's a lot of zeal against relatively powerless people, and a glaring lack of it against the powerful. And the degree of power they have is a real problem.
178/179/182: It's important to not get hung up on the technicalities. The alleged crime is doing something intentionally deceptive in order to deprive someone else of their property. It's not illegal for me to pretend to be "Robert Halford" here, but if my pretending to be Robert Halford was part of a scheme to defraud you of $10,000, it would be prosecutable as fraud and thus calling myself "Robert Halford" would be part of the crime.
177.2, others: I have no idea what his intent was, or if the intent was simply to make available the public domain material. He apparently downloaded all of the stuff, not just the public domain stuff, but again I'm not well-versed in the specific facts. And the government's indictment and charges were based on a plan to get the material subject to copyright, as well.
More generally, if the goal was simply to get JSTOR to release the public domain material in an accessible way to the general public, there were far easier, more legal, and more likely to succeed ways to do that than the route Swartz chose. He was a rich, tech-savvy, connected guy. Why not just ask them and work with them on a way to do so?
191.1 But the whole issue is that by taking something that's clear in the pre-digital era and trying to apply it to the digital era *by analogy* rather than by actually thinking about what rules make sense, you end up with really bizarre law. There's a reason we have an analogy ban here. He wasn't 'calling himself "Robert Halford"', he was changing a setting on his computer.
I agree with 190. But no one, not even the rich and powerful, should be under the impression, before doing something that is a criminal act, that if they get caught, there won't be consequnces.
193 Unless they work in finance.
The tragedy in this particular case is that there is enormous progress that can be made on this issue without violating current law, and Swartz's efforts and talents would have been much better devoted to those methods than the method he in fact chose.
Yes and pretty much everyone I know who works on open access, while vaguely sympathetic to Swartz - it's not clear what Swartz's goals were, so it's hard to be completely sympathetic, especially since pretty much no one would have supported putting the entire download online that way - thinks what he did was absolutely the wrong way to go about things.
It might be worth noting that at the time Swartz did his mass downloading, JSTOR didn't provide any free access, even limited, and I don't think even subscribers could get bulk access for text mining - something that is becoming a more common kind of research with this kind of corpus, and something publishers are starting to offer (with various restrictions).
If the indictment is to be believed, he engaged in what he knew was clearly deceptive conduct to access (an enormous number of) files he clearly wasn't allowed to access and didn't own, all for the purpose of distributing those articles to the world. I don't think it's a difficult case for wire fraud.
190 - There's a lot of zeal against people prosecutors really want to prosecute. One of the reasons I'm a little uncomfortable with how this is playing out is that it reads a lot like a spasm of anger at the thought that prosecutors might want to harass someone various Internet luminaries knew personally and liked a great deal.
196: But he was allowed to access each and every one of them. Just not so quickly.
That new CT post is really something.
182, 192, 196: As Halford said, the point is that he did something deceptive to obtain something of value. If you find yourself blocked out of a system (good lord do I not know what I'm talking about) that you're entitled to use, and you mess around with some setting (likewise) to get the system to let you in, that's not wire fraud. But Swartz was trying to obtain something valuable, MIT tried to stop him, and he did something deceptive to evade their attempt to stop him. That isn't computer-specific as far as I can tell, it's just how fraud works. (I'm not claiming to be able to defend the entire indictment or to have a good command of the facts, but on this point I'm pretty comfortable.)
196 gets it right. All the responses saying "OMG this could happen to me, I did the same thing except 4 orders of magnitude smaller" need to drift back to reality.
Also, saying he didn't "own" them only highlights the way that the property analogy is not perfect. If I go download something from JSTOR in many meaningful senses I do now own a copy of that article. What I don't have is permission from the government to use that copy that I own in certain ways. The government has made the law very restrictive on what I'm allowed to do in my own home with my own things.
199: But 'quickly' isn't just some kind of terms of use technicality, it goes to the nature of the thing of value. If he'd stuck to doing what he was allowed to, he wouldn't have had any practical way to get the whole database, which is what JSTOR was trying to protect.
Re 200
Yeah. That's what I was getting at above. It's ... special.
203: It's called 'copyright'. You're allowed to do anything you like with it except copy it (with fair use exceptions) just as you would if you'd bought a paper copy of the journal. I can see taking issue with copyright, I've got problems with it myself, but it's not some peculiar new restriction.
Upetgi, you are playing fast and loose, putting it charitably, with your use of 'own'.
It's a violation of the terms of service to download more than one copy of an article from JSTOR or to download every article in a journal issue.* It is not, as far as I know, a crime to do that except to the extent that violating the TOS is a crime. As Unfoggetarian says, there are steps in place to stop people from downloading quickly, but there's no limit outside the TOS.
*For individuals, it's almost impossible to avoid violating these terms on a regular basis, just because you might return to an article more than one and have more than one copy in your system (temp files, document folder) and they're interface is so poor sometimes I don't know how you read a whole issue - say, a special issue focused on one topic - without downloading each article. The pdf formats always have the best image quality. Anyway, these violations are so small I don't think anyone ever gets in trouble as long as they aren't posting/distributing widely.
Please don't prosecute me for they're/their mistakes. I will try to reform.
You know how sometimes Emerson Jesus McQueen or someone asks if anyone will send him a copy of some article on Jstor that he can't access? I've done that and I believe I'm not the only one here who has. That's a violation of Jstory terms of service, and though (per 202) I don't expect the mighty hammer of the state to fall on me, it is still a similar act in principle.
I also access Jstor by tunneling through the University of Chicago's CS department, which I guess checks out since I do, after all, have an account there. But I *used* to also have a proxy to the OED that was publicly accessible via a cgi script, users of which could access something of enormous value (the OED) by, more or less, pretending to be me.
If you agree with the premise that the value assigned by JSTOR to the right to copy one of these documents should be thought of as equivalent to the value of a physical good (jewels, say) physically stolen from its rightful possessor, then nothing the prosecutor did seems unreasonable and, indeed, Aaron Swarz was one of the greatest thieves who has ever lived.
You're allowed to do anything you like with it except copy it (with fair use exceptions) just as you would if you'd bought a paper copy of the journal.
What in fact does copying it mean in this context? Having multiple instances of it on disk (e.g. by use of the "cp" command, not by creating hard links), is that copying? That's what "cp" stands for, "copy".
Actually it occurs to me that I don't know if creating a backup of an entire copyrighted (physical) thing falls under fair use.
212: And to think that often you can get copies of these valued items just by writing their original authors and asking! Don't know what they're giving away, but, I guess, that's academics for you.
That's what "cp" stands for, "copy".
Actually, on JSTOR I think it stands for Classical Philology.
And elsewhere for "compare" or "corporal punishment". (Why not "corporeal punishment"?)
It's a violation of the terms of service to download more than one copy of an article from JSTOR or to download every article in a journal issue.* It is not, as far as I know, a crime to do that except to the extent that violating the TOS is a crime. As Unfoggetarian says, there are steps in place to stop people from downloading quickly, but there's no limit outside the TOS.
I am reminded of a limerick:
There once was a young man named Rex,
With a very small organ of sex.
When charged with exposure,
He replied with composure,
"De minimus non curat lex."
The TOS is set up the way it is (I speculate, but with a certain degree of assurance) in part to prevent people from downloading the whole database -- I'm fairly sure that JSTOR doesn't actually care if people violate the TOS on the sort of small scale you describe, because it doesn't have any noticeable effect on their business model. Which means while it is in a literal sense the same sort of thing, in terms of the underlying reasons for the terms of service it's very much not the same thing in principle.
213: IANAIPL, but making a backup copy for your own use is, I'm pretty sure, absolutely fair use.
If you agree with the premise that the value assigned by JSTOR to the right to copy one of these documents should be thought of as equivalent to the value of a physical good (jewels, say) physically stolen from its rightful possessor, then nothing the prosecutor did seems unreasonable and, indeed, Aaron Swarz was one of the greatest thieves who has ever lived.
Is this situation much different from downloading music?
198: that's a feature, not a bug. People recognize injustice by having it come close to them, this makes them get more active in addressing the injustice. The argument 'injustice is widespread therefore it is hypocritical to get angry over injustice that happens to people I am close to' is from a political organizing perspective an awful one to make.
But no one, not even the rich and powerful, should be under the impression, before doing something that is a criminal act, that if they get caught, there won't be consequnces.
As Unfoggedtarian pointed out in 194, this is actually a much more naive, unrealistic, and starry-eyed take on the way the justice system really works than all the statements that Swartz should have expected to get the full force of the law.
I don't expect the mighty hammer of the state to fall on me,
Publishers have actually pushed for universities (and their libraries) to monitor email traffic in order to stop people from sharing in the way you describe.
217: oudemia asks me to correct your latin, because she is too lily-livered to do so herself. "De minimis".
The TOS is set up the way it is (I speculate, but with a certain degree of assurance) in part to prevent people from downloading the whole database -- I'm fairly sure that JSTOR doesn't actually care if people violate the TOS on the sort of small scale you describe, because it doesn't have any noticeable effect on their business model. Which means while it is in a literal sense the same sort of thing, in terms of the underlying reasons for the terms of service it's very much not the same thing in principle.
Over the counter. It is precisely in principle that it is the same thing; it is in practice (Jstor doesn't actually care about enforcing their actual terms of service) that it is not the same thing.
I'm a lawyer, not a classics scholar. And it depends on whose principles you're looking at. If the TOS were drafted by someone told that "We don't care what the wording is, but write it so that it won't be possible to download any significant fraction of the database without violating it" then that would be the principle underlying the TOS, and your actions would violate the letter but not the spirit of the TOS, while Swartz's would violate both. I don't actually know that that is the spirit of the TOS, but it could be.
212: If you agree with the premise that the value assigned by JSTOR to the right to copy one of these documents should be thought of as equivalent to the value of a physical good (jewels, say) physically stolen from its rightful possessor,
(I thought I'd written this comment already, but it doesn't seem to have posted)
If you want to argue that our IP law is a mess and morally wrong, I'll be very sympathetic. But taking it as a given in this instance, JSTOR is, in fact, making quite a bit of money from its rights over a piece of intellectual property, and if the same thing were available for free elsewhere, JSTOR would be poorer. You can argue (and again, I'd be sympathetic) that this would be a good thing to happen, but you seem to be arguing that there isn't any real money at stake, and I don't get that.
If the TOS were drafted by someone told that "We don't care what the wording is, but write it so that it won't be possible to download any significant fraction of the database without violating it" then that would be the principle underlying the TOS, and your actions would violate the letter but not the spirit of the TOS
I don't normally go in for this sort of thing, but this reeks of intentional fallacies. I mean, sure, let's defer a bit to the legislative (TOS-ative?) record and whatnot, but the terms are as written, and, as written, they exclude much more than downloading a significant fraction of the database (which, for that matter, they don't exclude, they just make it a PITA). The animating principle behind the drafting might have been merely the exclusion you mention, but I don't care, in the first instance, what principle was guiding them; I care what principle can be found in what they produced.
The idea that terms of service might be enforced by the state is all the more odious if the terms that will be enforced actually live in the minds of a couple people who drafted them, and not on the page presented to users.
If he'd stuck to doing what he was allowed to, he wouldn't have had any practical way to get the whole database, which is what JSTOR was trying to protect.
Downloading every single file in a database is not the same thing as downloading the database.
It's kind of strange that discussion has lately taken such a turn towards Jstor since they, in fact, ended their involvement with the proceedings somewhat early on.
There are examples of "TOS being enforced by the state" to detrimental effect, but this really isn't one of them, for reasons that are probably best outsourced to the noxious (but on this issue, really genuinely expert) Orin Kerr.
225: The natural consequence of that argument is that if the state, or the owner of the property right, doesn't have the resources to defend itself against every de minimis intrusion on its rights, it loses its entitlement to defend itself against significant intrusions. That seems unjust to me.
226: The whole contents of the database. Geez.
I'm not a lawyer and haven't even read the indictment, but I thought the bigger deal was that he went to MIT - where he does not seem to have an affiliation that would get him into JSTOR - and then did various things to get onto the MIT network and stay there.
I suspect a slow, sequential downloading of JSTOR through Harvard over a period of weeks or months would not have resulted in criminal charges but he'd probably have had his library access revoked.
227 -- yes. If you are to follow Halford's parade of horribles it seems that JSTOR would have seen this prosecution as critical, when in fact it seems they didn't even want to press charges.
229: ???
The natural consequence of the argument seems to me to be "if you only want to exclude X, write your TOS to exclude only X".
What in fact does copying it mean in this context?
I'm pretty sure it means redistribution in this context. As I think everyone involved in the discussed knows, cute comments about 'cp' aside.
Ultimately, our current IP laws are stupid, and they are particularly egregious in the academic publishing case where the academic publishers themselves are, in most cases, evil rent-seeking bastards.
But as per innumerable discussions past, IP laws are still law. You can break the law openly civil-disobedience style, in which case you can expect the law to fall upon you. Maybe you can argue your case in court, expose the (real) injustice of the laws, provide a focal point for a campaign to change them, or whatever. But it's silly to expect that the law just won't apply.
I don't think anyone expected that the law didn't apply. I think people did think that this was not a very good use of the law's resources, given that it is not necessary, and in fact not feasible, to prosecute every infraction of the law at all.
Whether Swartz thought that he would be prosecuted as vigorously as he was, or at all, I have no idea.
To be sure, the organizing, inertia-breaking, and funding necessary to get such a new system off the ground are real, but such organization is possible, the universities can fund it, and there's no good reason not to do it. Swartz's talents would have been far better directed to such an effort.
Swartz was an inertia breaker. Guys like him move the system forward by throwing rocks at rickety, antiquated structures, and demonstrating what is possible with new technology.
There is a necessary roll in make old systems untenable, so that new systems can take their place. This - for good and for ill - is what revolutionaries do.
You could never have had iTunes without Napster paving the way.
233: Employer: "I have a rule against my employees stealing anything that belongs to me."
[Employees take home some ballpoint pens.]
Employer: "While I don't permit people to steal office supplies, I'm not going to drive myself crazy locking up the supply cabinet, even if there is a suspicious drainage of binder clips."
Smartass Employee: "Clearly, you don't really have a rule against theft, because you condone the theft of office supplies. As there's no rule, I'm emptying the bank accounts. I'll be in Rio if you want me."
There's nothing wrong with the employer's rule, even if it doesn't precisely delineate the line between theft that it cares about and theft that it doesn't, and its failure to freak out about minor violations of the rule doesn't make enforcement against significant violations unprincipled.
I'm pretty sure it means redistribution in this context.
So am I. If you as an individual post a copyrighted article you have access to on a general access website or listserv, you'll probably get told to take it down. If you post hundreds or thousands, you'll probably see some kind of legal action. Even when faculty have posted to password restricted sites available only to their students, they've (well, the university, I think) been sued, though I think the courts have favored the educational use side in that situation.
If you keep it all on your hard drive, you're fine.
I was saying that it is important to understand that when you designate a certain type of behavior as felonious, in an attempt to curb it, this is what you get.
This, exactly.
I'm involved (professionally) with provision of open access to formerly restricted or closed academic resources.* It's only anecdote, but I can say for certain that what's been driving institutional change on this issue in my institution is very definitely NOT hacktivism or 'freetard' type stuff, which largely retards the efforts of everyone trying to make this happen.
* at some point in the next couple of months our entire digitised archive [at the library type institution where I work], everything we've ever shot, will be going on-line with CC non-commercial licensing.
And really, a plea deal for six months when you're facing multiple felonies in federal court is nowhere near overreach and anyone who thinks so likely hasn't seen any prosecutions firsthand.
237 seems utterly tangential to everything.
If the employer had a rule saying "don't steal office supplies in large quantities", that would, in fact, condone theft in small quantities. (There is surely a canon of legal reasoning to support this. Something like expressio unius.) And if, in fact, all the employer cares about—as you're saying about Jstor—is theft of large quantities of office supplies, everything is now hunky-dory.
If the employer had a rule saying "don't steal office supplies at all", but actually only cared about theft of large quantities of office supplies, and everyone kind of sort of knew that, then we would have a situation analogous to the Jstor situation. And, as far as accordance with the rule is, any theft is on a par with any other, even if out of the goodness of the employer's heart only large thefts are punished. If, however, the employer decides to punish a small theft, the response "but we all know that you actually only care about large thefts" won't cut much ice.
Not having any rule at all seems utterly beside the point and I can't understand why you mention it.
I don't think the guy who torrented 18000 public domain articles from Philosophical Transactions got prosecuted.
I don't understand your point in raising the fact that you break JSTOR's TOS all the time, then. I thought you were arguing that "Everyone breaks the TOS in small ways; no one gets in trouble; therefore it's unprincipled to prosecute someone for breaking the TOS in large ways because they are in principle the same offense." That was the implicit argument I thought I was rebutting. If that's not why you brought up small violations of the TOS, however, then I don't understand what point you were making.
200:That new CT post is really something.
Yeah, I go back and forth on Corey Robin. But he gets a +1 on the good side of the ledger for comparing Obama to Czar Nicholas in 1905 about to turn the machine guns on the priests and children.
Louis Proyect on Aaron Swartz. Posted partly for the mention of and small excerpt from Michael Perelman's book Steal This Idea: Intellectual Property and the Corporate Confiscation of Creativity.
I didn't get my ideas from Perelman either.
In Ghost in the Shell 2:Innocence there is a recurrent anthem "Ballade of Puppets"...never mind
220 -- I didn't mean that everyone who gets caught gets whacked. Just that anyone who gets caught might get whacked. It's not totally (or even largely) random, but there is risk even for people who think that because MIT doesn't aggressively pursue every trespasser, or LB's employer every paper clip, that the restrictions are meaningless.
I would like to have seen more prosecution in the finance industry. There are issues about who did exactly what, with the proper mens rea, for conviction, and it's a whole lot easier to condemn 'banksters' on the internet than to get criminal convictions. That doesn't mean they should have tried harder. That said, no one acting today can be assured that just because prosecutors didn't take a hard line in 2009, they won't in 2014. Anytime you knowingly break the law, you're at risk.
Back at my desk for a minute. 113 and others took exception to my suggestion that MIT's policies of nonenforcement of some trespassing and related laws is limited to the rich white folk. Of course it applies to everyone with insittutional affiliations, white, black or whatever, although I'd guess the African-American student found breaking into a closet might be treated differently until he produced his student ID). They are all rich oin the sense of lifetime potential, even if they arrive poor.
From my limited contact with hacker culture in the 80's, reinforced by some participants in this eclectic web magazine, hackers are generally from upper class backgrounds. There's a sense of entitlement that enables someone to break rules and laws, secure that there won't be any real consequences or they'll be bailed out.
At the other extreme, if a significant part of your high school class is serving time and you're at MIT, you got there by staying as far away as possible from actions that can draw police attention. Breaking into closets, or databases, probably won't have much appeal.
Ta-Nehisi Coates has discussed contrasting attitudes of the Entitled and Unentitled Classes who come up against law enforcement from time to time. He's teaching at MIT now, and I'm hoping he looks at the hacker culture.
I meant solely that in principle someone breaking the TOS is committing the same offence as someone breaking the TOS, whether in large ways or in small ways, and so that, while it is true that, as Cryptic Ned observed, no one will prosecute me, that's not because I do not represent a fitting object of prosecution.
@244
246:1 pretty much covers what worries people.
Is there some clear legal distinction between what Swartz did and what routine small time JSTOR violators do such that, if federal prosecutors were bored and felt like sending a small timer to prison, they wouldn't be able to?
Clear, I dunno, but for a property crime the underlying value of the property affected certainly comes into sentencing. This isn't my area and I don't remember, but if they caught you forwarding $20 worth of scholarship to a friend, that might be below some statutory financial limit for prosecution.
Highly tangentially, 247.2 isn't true in the case of Joybubbles or Kevin Mitnick. Are there any sociology studies about hackers that might point to whether it's more generally true?
239: we have such a vast profusion of criminal laws that prosecutorial discretion is central to the system. Which of the enormous number of possible felonies the state will bring its resources to bear on is always a matter of discretion. If we seriously tried to enforce all of the tens of thousands of criminal laws on the books with the full force of the state we'd live in a totalitarian state and half of us would be in jail. So it's not a matter of saying X is a felony, sorry, nothing we can do.
I'm still not clear what Swartz did that was illegal other than break the terms of service. I certainly understand why the government wants to treat large breaches of ToS more severely than small breaches of ToS. What I don't understand is why what he did was fraud, other than because it broke the terms of service.
250 is correct, both as a matter of law and (realistically) as a matter of prosecutorial discretion. But it's important to understand how far Swartz's case is from the de minimis, I send you a single PDF of a copy of a JSTOR article I have access to.
Whatever you think about the law as applied to that case, the fact that the government went after Swartz for downloading the entire database and (allegedly) trying to distribute it to the general public says little to nothing about what the government would do in minimal cases.
I really wish this had gone to trial, not just because Swartz would still be alive, but because it could have led to some more clarity on the legal issues. Or it could have been a big muddle, I guess.
There's a bit of absurdity in the JSTOR statement about Swartz returning the "property" since no one using the database would have noticed it being missing but JSTOR is just working with the legal regime we've got.
253: Have you read the indictment?
Also, the point of talking about how Swartz antagonized the prosecutor isn't that prosecutors are assholes. It's that there are consequences to dissing people who have real power over you. Most of us learn the importance of at least faking respect from having teachers and bosses. Swartz apparently never had a job with a boss, and he dropped out of college after a year, so he never got that lesson.
I know 226 sounds overly pedantic, but there really is a difference. Getting the database itself would require what I would think of as traditional "unauthorized access", while querying the database is something users are allowed to do (up to some ill-defined limits which you'd expect power users to try to probe).
256: No, I read Orin Kerr's summary though. It's pretty imprecise about why what he did was fraud, beyond using some loaded language which implies that it was (spoof, break-in).
253: Try to think about it like a stupid person, and forget anything computer-specific you know.
Swartz tried to do something through MIT's network. Someone at MIT noticed, and tried to stop him. Swartz did something to evade MIT's attempt to stop him, and whatever it was he did had the effect of making the MIT guy have the false belief (for some period of time) that Swartz wasn't doing it any more -- if the MIT guy didn't have that false belief, he would have been able to stop Swartz. And because Swartz effectively brought about that false belief, he obtained a thing of value.
Bringing about a false belief in another person to obtain a thing of value is what fraud is.
...what the government would do in minimal cases.
That's where I'm unclear. What would (or rather, could) the government do in the minimal case?
Is my uncertainty about this just a result of my ignorance about this corner of the law, or is it genuinely vague and unclear?
If the latter, there's something creepy about the idea that the government could in principle lock up just about any academic in the country if they felt like it, even if that's unlikely to happen.
Would it be illegal for 10,000 people to divide up JSTOR and each download 150 articles? Is that fraud? What about one person with 10000 computers? One computer with 10000 different MAC addresses?
260: So it's only the fact that he was initially caught that makes it illegal? If he'd just plugged in from the getgo he'd be in the clear?
Would it be illegal for 10,000 people to divide up JSTOR and each download 150 articles? Is that fraud? What about one person with 10000 computers? One computer with 10000 different MAC addresses?
Or a thousand monkeys with a thousand ipads?
Right now people are distributedly violating JSTOR's TOS through the liberator thingy.
263: I think that's the key of the fraud count, yes.
Interesting, it genuinely wouldn't have occurred to me that that would be a crime.
I know 226 sounds overly pedantic, but there really is a difference.
Also, the database is the only piece of intellectual property that JSTOR has - the public domain articles have no owner, and the copyrighted ones are owned by the copyright holder. It needs to be kept clear that this is not a case about theft of intellectual property, it's a case about violating terms of service. Which is the controversial bit here - nobody would think that, say, doing depth-charges in the local swimming pool was a felony (although it is a violation of the terms of service of the swimming pool). But a badly drafted law has made it (potentially) a felony when a computer is involved.
It was a case that should never have been brought, under a law that should never have been passed. It was a clear act of civil disobedience, along the lines of the Kinder Scout trespass. Given MIT's very well known and publicised culture and history, it's really quite appalling that they (or rather, most likely, some administrator) facilitated it. As Keir said earlier, the entire argument to the contrary appears to be "American prosecutors are total assholes", which is on the face of it an unconvincing justification.
re: 258
It depends on what format the database is in and how its stored. Sometimes all the records in the database just _are_ the database.
re: 259
Those aren't loaded terms. 'Spoofing' has a specific conventional meaning in a computer context.
268: If you take something copyrighted from somebody who doesn't have the own the copyright (but just a license), the issue is still theft of intellectual property, isn't it? Is there a lawyer here?
268:1 suggests that 261:last is in fact correct. I'm I reading that right?
Also, the point of talking about how Swartz antagonized the prosecutor isn't that prosecutors are assholes. It's that there are consequences to dissing people who have real power over you. Most of us learn the importance of at least faking respect from having teachers and bosses.
This is why nobody ever actually manages to stick it to The Man. Swartz tried to stick it to The Man, and look what happened.
It's a shame, really. The Man really does need to get it stuck to. Now more than ever.
It depends on what format the database is in and how its stored. Sometimes all the records in the database just _are_ the database.
Not conceptually or logically (a set is always a distinct entity from its members), and usually not legally either (a telephone directory is just a list of publicly available phone numbers and names, but it's possible to have intellectual property over the directory. Lots of EU/US trade disputes in the 90s were fought over database rights, and there was a huge bust-up between the Football Association and the pools companies as to whether the fixture list was a piece of intellectual property).
268: Also, the database is the only piece of intellectual property that JSTOR has - the public domain articles have no owner, and the copyrighted ones are owned by the copyright holder. It needs to be kept clear that this is not a case about theft of intellectual property, it's a case about violating terms of service.
Calling it violating terms of service makes it seem as though there wasn't any real money at stake. The 'terms of service' in this case were there to protect something of great monetary value (control over the contents of the JSTOR database) that JSTOR had a legal right to. You can be sympathetic with what Swartz did, but if he had done what it appeared that he was going to do, JSTOR would have been much poorer.
Not sure if anyone's linked to this post by a guy who was going to appear as an expert witness at Swartz's trial.
268 is basically totally wrong, both generally and in the specifics. What "badly drafted law" are you talking about, the wire fraud statute, which has nothing to do with computers? [There is a separate charge based on the unauthorized use of a computer to gain property worth more than $5000; that statute has been misused in other places, but this is a pretty clear case of someone (very very clearly) making unauthorized use to (very very clearly) obtain property worth more than $5000.]
The case is of course about the theft of intellectual property, that is the basis of the alleged fraud, and the reason the case was prosecuted. While part of what's at issue is a violation of terms of service, that's not the core of the charge or the reason the case was brought -- the reason the case was brought was because Swartz wanted to make copies of every article in the JSTOR database and (allegedly) distribute it to the world.
If you take something copyrighted from somebody who doesn't have the own the copyright (but just a license), the issue is still theft of intellectual property, isn't it?
In some other contexts yes, but if you're downloading a copy of a paper from JSTOR, then you're allowed to have the copy you downloaded (the terms under which it's licensed to JSTOR allow JSTOR to make copies available for download, obviously or JSTOR would be a bit pointless) and that's all that Aaron Swartz did. You're not allowed to publish or share your copy, but that's what he didn't do (someone might have wanted to claim he was planning to, but as of today, intending to commit a crime isn't usually a crime).
What you're not allowed to do under the terms of service of JSTOR is use automated agents to download loads and loads of copies really quickly. Aaron Swartz was allowed to *have* all the files he had; he just wasn't allowed to *get* them in the way he did.
Right, but JSTOR got the license to do what it does because of those limitations in its TOS. I don't see how you separate that part of the TOS from the intellectual property.
277: Again, your summary obscures the critical facts and is just an incorrect view of the case. Downloading massive amounts of material you wouldn't otherwise have access to for purposes of public distribution is very much a crime, and that's exactly what he is alleged to have done here.
intending to commit a crime isn't usually a crime
Not if the intention stays in your head. But that's not the allegation here, it's that he was in the middle of the commission of a crime, when he got caught and found out. You don't get to not be prosecuted for trying to commit a crime simply because you get caught before you can commit it.
Aggh, that was confusingly written and I need to get back to real work. But seriously Dsquared is just totally wrong here for multiple reasons.
What "badly drafted law" are you talking about, the wire fraud statute, which has nothing to do with computers?
The Computer Fraud and Abuse Act. viz.
the reason the case was brought was because Swartz wanted to [...]
"Wanted to" isn't a crime, or the prisons would be fuller than they are. The charges have to be based on what he did or didn't do.
Calling it violating terms of service makes it seem as though there wasn't any real money at stake.
Not necessarily at all; some terms of service are really important. But it is notable that JSTOR did not, actually, consider the case to be worth pursuing, which would have been an odd thing to do if they believed that they had been robbed of $50,000. The case went forward because freewheeling hacker paradise MIT wanted to establish that unauthorised use of their network to download JSTOR papers from their account was a felony.
Attempt can certainly be a crime.
Right, but JSTOR got the license to do what it does because of those limitations in its TOS.
I don't think it can credibly be claimed that JSTOR wouldn't have existed if its terms of service in this regard were not protected by making their breach a felony with a potential 35 year prison sentence, not least because JSTOR have never claimed that. I don't think anyone, including Aaron's lawyers, was trying to claim that everything he did was legal. But the claim that the felony charges were wildly disproportionate and should either never have been brought or been bargained down to a stub, looks very convincing to me.
I'm not arguing that it wasn't disproportionate. I'm just completely perplexed by your attempt to put intellectual property completely to the side.
Attempt can certainly be a crime
Getting a file isn't the same thing as attempting to publish it. This is another example of extremely aggressive prosecution; it's not dissimilar to all those notorious prosecutions of anarchists for having a copy of the "Anarchist's Cookbook" lying about. The "publishing all the files, including the copyrighted ones" is a pure prosecutor's theory, not a fact.
Just a quick response to 281 before getting back to real work, and I really don't have time to do anything further here, but the CFAA was only one of four separate felony counts brought here, and in any event this is something that probably falls within the pretty core area of the CFAA. Also, neither MIT nor JSTOR was responsible for the prosecution, that was the province of the US Attorney.
284: It's important because this is a case (as Orin Kerr and Jennifer Granick are clear) about circumventing access controls, not about stealing intellectual property. If I send you a download link for a pirate copy of "Les Miserables", then you haven't circumvented any access controls, but you've got some stolen intellectual property. If I guess your password and log on to your wifi to check my email, then I haven't stolen any intellectual property, but I've circumvented some access controls. We're both criminals, but the crimes are different; trespassing and theft are both crimes that involve property rights but they're not the same thing.
Anything of the sort would have had to be proved, of course. I don't know what the evidence was on that point.
When you say 'disproportionate', what do you mean 'disproportionate' to? To the amount of money at stake? If that's the case, what do you think that amount of money is (at whatever level of vagueness you have a sense of it, of course)? This appears to me to be a case where there was arguably quite a lot of money at stake -- control of an asset that was JSTOR's entire stock in trade.
I'm really sympathetic to an argument that prosecuting Swartz at all was wrong because he didn't mean any harm, and JSTOR was willing to forgive him. But once prosecution is happening, I don't really see the disproportion.
287: But so far as the holders of the copyright are concerned, by downloading in bulk was actual theft of intellectual property. They refused to sell under those conditions.
The "publishing all the files, including the copyrighted ones" is a pure prosecutor's theory, not a fact.
Especially given his previous hack alluded to in 177.
Disproportionate to the public interest involved.
This appears to me to be a case where there was arguably quite a lot of money at stake -- control of an asset that was JSTOR's entire stock in trade.
This would only be the case if he had published copyrighted papers. Which he hadn't, and there is nothing beyond a prosecutor's theory saying he was going to.
257 is completely morally bankrupt. I have a job that sometimes involves dealing with disrepect. Do you know what I do? I do my goddamn job. I don't look for opportunities where I can stick it to somebody with impunity. If I did, then I would be an asshole. I'm sorry it's so hard for prosecutors to do their jobs, but if they're not willing to do them, they should be fired.
As a practical matter, sure, it's a bad idea to diss people with power over you, but that's because people with power can abuse their power and get away with it. I wouldn't diss a psychopath who had a gun pointed at my face, either.
But so far as the holders of the copyright are concerned, by downloading in bulk was actual theft of intellectual property
A possible theory, but I'm guessing the prosecutor considered and rejected it, because it's not in the indictment and nor is anything that looks all that much like it. I can see the moral argument here (although it obviously doesn't apply to the public domain material). But unless it was published, I don't see why the copyright owners would care all that much if one guy had a hell of a lot of files.
Huh, in the current JSTOR terms of service you actually can download an entire issue if it's a series of essays on a topic relevant to your research. I wonder if it always said that in the full terms. I don't remember seeing it a few years ago when I read the terms that pop up when you download a particular article. I can sleep easier now.
(Distributed downloading is expressly prohibited.)
293: Actually, I don't think intent to republish is an element of any of the charges. It's a factual allegation, but not AFAIK a necessary one.
293: They care because the assumption is that a guy with a hell of a lot of files is going to publish them. You can't easily prove intent to publish, so they just allowed electronic publication under a limited license that would have protections against allowing somebody to publish a huge chunk of their work.
Attempt can be a crime, but wanting isn't. (I actually heard a really good talk on this topic at the Pacific APA last year.) Swartz, perhaps wanting to distribute things, downloaded them. That may be part of the attempt to distribute them. (You can't distribute them if you don't have them.) His downloading them was allegedly (to have been) part of his distribution. I don't think I'm making any sense at the moment, actually, and I can't remember what I set out to claim. It seems to agree with Halford and LB.
It depends on what format the database is in and how its stored. Sometimes all the records in the database just _are_ the database.
If "all the records" are the files on disk, then sure, all the records are the database. But Swartz could not possibly have downloaded the database, in that case, because Jstor does not serve up its primary keys or CREATE TABLEs. Nor would he have had access to the other things that makes Jstor useful—full text search, e.g.. If "all the records" is something else, then it seems likely to be false; all the pairs aren't the telephone book, which is additionally alphabetized by name.
This appears to me to be a case where there was arguably quite a lot of money at stake -- control of an asset that was JSTOR's entire stock in trade.
ATtempting to make 297 somewhat relevant, Jstor would have remained useful to people who could access it even if Swartz had made all the articles they have freely available, because, in fact, Jstor's stock in trade isn't just the articles themselves, but the ability to efficiently search for articles (you can even just click links in bibliographies—sometimes, anyway—and go directly to the cited paper!). For that reason, for instance, I would use Jstor rather than look things up in the actual physical library, even when I knew in advance that the article I wanted would be in the library and did not know in advance that it would be on Jstor.
295: Yes, RH is very convinced that this was why the charges were brought but it isn't in the actual indictment at all and so if the prosecutor was relying on it and trying to force a sentence based on pretending that they'd proved it, then that's surely clearly problematic behaviour.
They care because the assumption is that a guy with a hell of a lot of files is going to publish them
But they have all sorts of powers over anyone who publishes copyrighted material, and by its nature, publication is a pretty easy crime to detect. I'm sure that the rights holders want to keep all sorts of tight control over their copyrighted material - after all, they don't actually produce anything of value, and so their entire business model is based on aggressive control of the rather strange legal arrangement that allows them to earn rents from selling academics' work back to them. I (and Aaron Swartz's lawyers) agree that this is illegal. I just don't see how it can sanely be thought of as a felony, in the absence of any actual damage to the intellectual property at all.
There is any number of things Swartz might have been intending to do with the files other than publishing them, as was observed at the time. He previously did an analysis on a large number of law review papers, for instance.
JSTOR did more than earn rents from selling academics' work back to them. It did the actual work of digitizing decades of papers and in the process saved me countless hours of dusty work and stupid photocopying. The rents agreements were prior JSTOR.
Of course the intent to distribute is in the indictment. Whether it's true or not in Swartz's case I don't know, but it's in the indictment.
The reasons why you'd want to stop such a crime before it happens, and prosecute at that stage, should be obvious. Once the material has been distributed you can't put the genie back into the bottle.
re: 297
I had in mind a fairly mundane point about implementation rather than any deep conceptual point. There's more out there than just SQL based databases. Sometimes a 'database' is just a bunch of RDF/XML and some schemas.
Right -- it's in the indictment as a factual allegation, but I don't think it's a necessary element of any of the charges.
Sorry you're right of course - I meant by "the indictment" what you mean by "the charges" which is of course wrong. But isn't this problematic behaviour in itself? If the prosecutor isn't prepared to actually put a charge up based on the intention to distribute or to put up any evidence other than the bald assertion in paragraph 33 (which doesn't even actually assert that he intended to distribute material which was copyrighted!), then why are they putting it in the indictment, other than to bully and to make the charges look more like a "proper" felony than can be substantiated?
So when the ToS would comment here after having his IP address blocked, was he committing wire fraud?
311: He didn't gain anything of value.
311 -- Fraud basically requires falsity, reliance, and injury.
Does it work like with illegal drugs (i.e. having above a certain amount is defined as intent to distribute)?
312: Not even the warm glow we all get from each other's company?
I'm still catching up on the thread but it's clear from what I've read so far that I've committed wire fraud numerous times, and also violated various terms of service numerous times. Someone should arrest me.
Could someone walk me through how changing your IP address is a "false statement of a material fact"?
312 -- I would focus not on whether he got something, but whether someone lost something because of reliance on the truth of the misrepresentation.
Are you questioning whether changing one's "name" without notice is a statement, is false, or is material?
316 -- The appeal of this argument -- lots of people, even me, are violating the law, therefore it must not be a violation -- isn't exactly apparent to me, no matter how many times it is repeated in the thread. (as distinguished from 'should not be a violation')
Lots of people are violating lots of laws all the time. I mean, have you ever driven a car on an Interstate highway? This doesn't tell you anything about what the law is, or what happens to someone who is unlucky enough to get caught.
An IP address is not a name.
In the brave new world of IPv6, our IP addresses might regularly change, from what I understand, since we'll have zillions apiece.
Further to 320, it's only material, I'd suppose, if there's been an interaction using the prior name. That is, you can change your address right now, and interact with some system you've never logged into before and there's no issue. But if a person is banned from using a computer system, and the IP address is how the system knows who is banned, then why wouldn't the IP address be material?
321.1: I think the point is that if a law is being regularly violated without adverse consequences, probably having harsh penalties for violating it is not reasonable.
JSTOR did more than earn rents from selling academics' work back to them.
True, but JSTOR was not the copyright holder (as we agreed) and, allowing for a small amount of labour in typesetting which is clearly minuscule relative to the fees charged, I think that "earn rents from selling academics' work back to them" is a fair enough description of the economics of academic publishing. I especially like the way they add insult to injury by making academics proofread and edit each others' work for free.
324 -- Your violations and those alleged against Swartz are so different in scope that the fact that yours have done no harm, and probably not even been detected, tells us nothing about what he is said to have done.
10 Awful Crimes That Get You Less Prison Time Than What Aaron Swartz Faced
Includes manslaughter, bank robbery, selling child pornography, selling slaves, and helping al-Qaeda develop a nuclear weapon.
I haven't said it before in this thread, and guess I should do so now: it's a tragedy that this young man is gone.
324, 326: Right, that was what I was getting at with the tortured analogy about theft of office supplies. You may really, genuinely, not be allowed to take pens home from the office, but nonetheless get away with doing it anyway. But that doesn't mean that your employer doesn't mind having their bank account emptied.
re: 325
I can't speak for JSTOR, and have no interest in defending the egregious rent-seeking that goes on in academic publishing.
But I do know how much it costs to digitise, OCR and proof-read, catalogue, and properly host material that you are going to make available to hundreds of concurrent users. It's really quite a lot of money. It's less for 'born-digital' stuff, but preservation and delivery of even that stuff is surprisingly expensive. That's not to defend any particular publisher or JSTOR, but even in an ideal fully open access model, someone somewhere has to pay for that. Without being glib, free isn't free. Ideally, of course, you'd fund it in some way that didn't mean a bunch of rights-grabbing/money-grabbing publishers have control over it.
328: This, absolutely. I don't mean at all to endorse the idea that prosecuting him was a good thing to have done.
I think the intent to distribute matters with respect to how much the property is worth. Plenty of people have over a thousand pdfs that, if bought individually at the prices charged by academic databases/publishers, would be worth at the least $5000. But they aren't worth much undistributed.
327 -- Well, if you only rob one bank once. And don't commit any other crimes along the way. And, actually, if the prosecution was only going to ask the court for 6 or 7 years (I presume this is what the guidelines point to, whether with downward departures, I don't know), then "faced" is a little loose here.
330.last: the "born-digital" stuff really is cheap, though I appreciate that older things are not. arxiv.org's yearly operating costs are below $1 million. I'm not sure what journals take in as revenue from distributing the very same content, but I'm sure it's a lot more than that.
Not that the link in 327 isn't good rhetoric and all. But people do understand about the Guidelines, right? That it's not a matter of adding up all the statutory maximums on whatever counts have convictions, and then sentencing that.
JSTOR can FOAD and indeed DIAF. It is a pure obstruction to scholarship. My experience of it, when I had access to it*, was that it was such a pain in the arse to work with that I just didn't bother.
I think we could only use it on a small number of PCs in order to worship their terms of service, so those were permanently queued-out.
Further, the library wanted a letter from someone or other before they'd divulge, and anyway all it bloody does is show you grainy jpegs of documents, you might as well photocopy the paper copy, and frankly I'd rather read a book or play football or argue on the Internet or spend time with my girlfriend. I know it's meant to be open slather if you're at a university, unless you take that seriously like Aaron Swartz of course, but in practice this never worked and I remember having a compulsory course on it where nobody could actually log in.
He would have been right to burn down the fucking building.
*It appears I left an asterisk in the last comment.
JSTOR was originally just "journal storage" (get it?) and access, with nothing current. They've aggressively expanded into more titles, current work, and books. In an alternative world, the money being used to fund their expansion, paid almost entirely by academic institutions, could have gone to expanding open access, albeit to fewer titles. In some cases journals in JSTOR are open access elsewhere (sometimes through the publisher's own site).
This is neither here nor there with the legal case, but it gets to why a lot of non-academics are not as sympathetic to them as you might expect, given how much better they are than most journal aggregators/vendors.
re: 334
Cheap-ish, yeah. I'm surprised the arxiv is as little $1 million, actually, though. Then again, I tend to work on projects based around older material (although alongside teams doing born-digital).
Digitised content rather than 'born digital' not so cheap. Costs mount too once you start including research data, and other more storage intensive material. Lots of this stuff is already funded by national research councils, international bodies (like the EU), individual academic institutions, philanthropic donations, and so on. I'm sure it can be done without publishers squatting on it. I'm just pushing back against the idea that it's free or trivially cheap, which often comes up in these discussions. I have these conversations with academics all the time.
'I can buy a 1TB hardrive for 50 quid. Why is this so expensive?'
CC, is anyone saying "the law is violated all the time without being prosecuted, therefore it isn't really violated", as you seem to be suggesting?
336: What? For starters, it's pdfs.
re: 336
anyway all it bloody does is show you grainy jpegs of document
What would you have wanted it to do instead?
Grainy because bitonal scans* are much cheaper, smaller to store, quicker to deliver to you. PDFs of scanned documents swiftly get undownloadably HUGE if they aren't bitonals, even with JBIG2 and more efficient modern compression methods even bitonal scans can still be pretty big. OCR is pretty decent these days if you are working with top quality sources, but 10 or more years ago it was shit, and needed a load of manual correction and proof-reading.
Again, not defending JSTOR, but doing this stuff well at scale is actually hard.
* or possibly 4 bit grayscale, I suppose.
FWIW, I've spent a lot of time trying to come up with ways of making scanned PDFs small enough that people can download them without whining. It's not easy.
340 -- Numerous comments of essear and Commenter above sounded to me like that, yes. I've since been corrected, as to essear, that he is not saying the conduct wasn't unlawful, but that it should not be punished (a) as severely as the sentencing guidelines direct [literally] or (b) at all [which I think is a fair inference from the discussion].
335 --- yeah, but the prosecutors claim to have been seeking 7 years. In NZ, you'd be unlikely to get a custodial sentence of any length for first time property offences. Obviously America has crazy jail terms, but that's part of the fucked-upness of the whole damn system.
(In particular, "let's use jail time as a case management tool" is not a thing I can really think of as being super pleasant.)
Anyway, I agree with what ttaM is saying here
JSTOR's quality has improved a lot over the years. Even in 2007 lots of the pdfs were not OCR, but now most of the ones I've come across are. I've slowly swapped my old pdfs for new ones (don't sue me) on an as-encountered basis because of this. Reading on the website itself - which may have been a limit on some subscriptions and which is a limit on the register and read program right now - has never been good.
Just to cite my sources, some news about arxiv's funding and more information on its membership program, including a statement that its operating costs average about $826,000 a year.
345 -- People should commit their first crimes in NZ, yes. More seriously, that they planned to ask for that doesn't mean the judge was going to give it to them. Also, I'm willing to presume that the 7 years didn't include anything by way of downward adjustments, and some may have been available.
How does what we call 'acceptance of responsibility' factor in to what you're thinking of as a NZ sentence for a first time property crime?
(b) at all [which I think is a fair inference from the discussion].
I think a fine could be completely reasonable. I think jail time is absurd.
Sorry, let me amend that: I think a fine could be completely reasonable if he actually was distributing copyrighted documents, which so far there is no evidence he ever intended to do, as far as I can tell.
the fucked-upness of the whole damn system society
ftfy
re: 348
That's interesting. Thanks.
I'm kind of surprised at the "but everyone changes their IP address/has changed their MAC address" line of reasoning from the more technical types. Sure, I've done that to get work done, in my work as an engineer, but the fact that it was done here in order to evade a specific policy block is critical. It strikes me as the moral, if not legal, equivalent of being told to leave some property and not come back; even if you could claim to not know you were trespassing at the beginning [I'm doubtful in this instance], deliberately evading the owner, no matter how simple or common the means you use to do so, makes it entirely clear that you are trespassing now.
But my overall impression of this situation is that it's a series of unfortunate overreactions. I think Aaron overreacted to the existence of JSTOR and similar copyright stuff; I think the prosecutors overreacted in how they went after him (and I think the idea that the PACER stuff gave them a grudge is interesting); and I think that he finally overreacted to the situation he was in.
MIT is coming in for a fair bit of criticism in some circles for not dropping the issue to the extent that they could have. One aspect I haven't seen discussed is whether they could reasonably fear for their general access to journals in the future if they didn't - if it was known that MIT didn't much care about dealing with this kind of stunt, would the publishers that the library deals with be hesitant to cut their usual deal for database access?
I'm really glad the Simons foundation stepped up for some ArXiv funding. The NSF should spend less money on summer salary for professors and more on the ArXiv.
I am willing to admit that there are plenty of things which lots of people do all the time, are rarely prosecuted, and are nonetheless sometimes seriously prosecuted. Marijuana possession comes to mind.
I am strongly of the opinion though that ordinary behavior should not be a *felony*. (This applies both to breaking terms of service and marijuana possession.)
It's worth keeping in mind with the ArXiv's cost that submissions are in LaTeX, not pdf. It seems plausible that this reduces their costs somewhat. I don't know the details, but certainly if you look at a random old paper you may need to wait a few seconds for them to compile the pdf for you. (On the flip side I hear that keeping all the old LaTeX files compiling as libraries change is a nightmare.)
349 --- not hugely, to be honest. It would be a factor, but contrarily Swartz would be seen as of good character and not acting for personal gain, which would be a mitigating factor.
I mean, there's way more of a focus in NZ law on restorative justice (which is a really, really good thing) but at the same time, first time property offenders are not particularly likely to go to jail*.
354: The times that I've done similar things-- on a much smaller scale-- I was certainly aware I was violating some kind of terms of service. Both at my current institution and the previous one, the institution's library website has online access to all kinds of books, for instance, but those usually go through a really clunky interface designed to keep you from printing or downloading more than a small part of the book at a time. You're supposed to be able to read it on the screen, but the interfaces suck so much that it's not worth the effort. So I have, for instance, done various easy things to circumvent the restrictions on the number of pages I could download as a PDF file, even things as simple as printing the maximum number of pages from one machine, then from another down the hall, then again from home. That strikes me as basically analogous to what Swartz did, on a scale several orders of magnitude smaller.
re: 358
Sure. Storing just ascii is obviously vastly cheaper than storing raster images, even heavily compressed ones.
On the flip side I hear that keeping all the old LaTeX files compiling as libraries change is a nightmare
A lot of them simply don't compile. A pretty large fraction of papers from 1991 or 1992 on the arxiv are only readable as source, now.
I thought one could easily download postscript and pdf from arXiv? They aren't generated on the fly, are they? (Or is it links to personal homepages or something?)
And further to 360, once I did that, my insidious plan was... to read the book.
That's before the ArXiv had math papers, so I haven't noticed that problem. (I can think of one very very early math paper where the images are all missing.)
363: They're cached. If you ask for something old enough, unless it's read unusually frequently, the PDF or PS will be generated on the fly.
363: Some are certainly generated on the fly (you get a message asking you to wait a few seconds while it's generated). I'm not exactly sure which ones, but presumably it depends on how recently the paper was downloaded by someone else.
It can be surprising what institutions do on the fly. The National Library of yawroN have a huge digitisation program, and a big digital archive. Including current or near current newspapers and journals. They don't store PDFs. If you request a PDF download, they compile the thing on the fly from jpeg2000s, more or less instantly.
the fucked-upness of the whole damn system
Th US House of Representatives is now voting on Hurricane Sandy relief. There are 3 minutes to go in the vote. It will pass, but with probably 50 Republicans voting for it and 1 Democrat against.
The NSF should spend less money on summer salary for professors and more on the ArXiv.
I was surprised to learn that a standard DOE grant is basically exactly enough money for me to hire a postdoc, with nothing or almost nothing left over for summer salary. I guess they aren't keeping up with current postdoc salaries (which we've raised by 20% two years in a row to stay competitive).
(Not that I have a grant yet. Fingers crossed for that.)
Arg, typo. Raised by 10% two years in a row.
371: doesn't that depend on how much overhead your institution has?
Academic budget talk: the best thread-killer there is.
Or maybe not. 374: Yeah, that's definitely true; I guess cost of benefits can also vary from place to place, and it's at most 10 or so institutions in the US that are paying the salaries we are, I guess.
So maybe the upshot of all this is I could be making significantly more money if I'd taken a different job?
375: yawnzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz
376: I am given to understand that your institution charges a looot of overhead, way more than other places. Which is kind of of a piece with their usual way of doing things.
On the other hand, topically, they will scan chapters of books and send you the PDFs, which is neat.
Includes manslaughter, bank robbery, selling child pornography, selling slaves, and helping al-Qaeda develop a nuclear weapon.
And how many of those do you think get offered a six month plea?
357
I am strongly of the opinion though that ordinary behavior should not be a *felony*. ...
What Swartz did was not ordinary behavior.
359
I mean, there's way more of a focus in NZ law on restorative justice (which is a really, really good thing) but at the same time, first time property offenders are not particularly likely to go to jail*.
So what would have been done with Madoff in NZ?
380: No, but as we've established the law that he broke does make lots of ordinary behavior felonies.
301
But they have all sorts of powers over anyone who publishes copyrighted material, and by its nature, publication is a pretty easy crime to detect. ...
Publishing is easy to detect but may be difficult to stop. And may be difficult to tie back to the source.
And I am unimpressed with this whole line of reasoning. If I go into the Citbank building, enter a restricted area, attach a device to their network and download 1.5 million credit card numbers I don't think I have to do anything with them to be in big trouble if caught (and properly so).
No, it doesn't, or not in any practically meaningful sense (if you are my blind date and I lie to you on the phone and say I am super hot and you buy me flowers, and it turns out I was knowingly lying, I've arguably committed wire fraud. Guess what, that is not prosecuted as a felony).
382
380: No, but as we've established the law that he broke does make lots of ordinary behavior felonies.
I think it is more correct to say it could be interpreted to make lots of ordinary behavior felonies. I don't think it is clear the courts will actually so interpret it.
And some of the counts have a $5000 threshold which would eliminate trivial violations.
I happen to be three degrees of separation away from David LaMacchia too. So I know that prosecutors will go after behavior that strikes them as wrong, even when no law currently makes it illegal. And that the disproportionate resources available to the sides can really muck up the innocent party's life for awhile.
Somewhere I came across some suggestion that some other circuit had recently made a ruling that implied some portion of one of the two indictments against Aaron was incorrectly applying one of the laws to the facts. If it is not clear, I do not know what I am talking about here and would appreciate clarification from one of the lawyers, if they can figure this out.
Some of the harm in this case (partial network outage at MIT) was the result of JSTOR's reaction to Aaron's actions. Does that reaction count in figuring out the dollar damages?
As I understand it, copyright law is hostile to the idea that functional code (e.g. alphabetization) is capable of being copyrighted. Is the ability to search on author and titles and such like in JSTOR intellectual property protected by copyright? I understand that a proper organization of databases and search capabilities, nevertheless, can take quite a bit of time and money to set up.
379: And how many of those do you think get offered a six month plea?
That updated information -- about the six month plea offer -- has changed my perspective on this. I hadn't realized that until today, but had been under the impression PGD outlines in 188, and I fear that Aaron wasn't toughened up enough to be prepared for the results of civil disobedience. As someone said upthread.
(To be clear, that doesn't mean that prosecutorial overreach isn't a real issue, or that the criminalization of copyright infringement isn't problematic, or any number of things that are, rightfully, under discussion.)
Is the ability to search on author and titles and such like in JSTOR intellectual property protected by copyright?
No.
This article:
http://www.huffingtonpost.com/2013/01/12/aaron-swartz_n_2463726.html
says that the 7th circuit has ruled that violating Terms Of Service is a federal crime, while the 9th circuit has more recently ruled that violating TOS is not a federal crime. So is the law ambiguous about how it applies to the alleged facts of the case?
I'd be interested to know if anyone has gotten any value from Swartz' PACER thing.
390: From Orin Kerr's summary, it didn't appear to me that this circuit split was relevant in that Orin seemed to think that what AS did counts as "unauthorized access" even under a more restricted view like the 9th circuit took. Though he doesn't explicitly say exactly that, so I could be wrong.
No, it doesn't, or not in any practically meaningful sense (if you are my blind date and I lie to you on the phone and say I am super hot and you buy me flowers, and it turns out I was knowingly lying, I've arguably committed wire fraud. Guess what, that is not prosecuted as a felony).
That doesn't matter. In principle, you are a fitting target of a felony prosecution. Whether or not you actually are prosecuted for a felon is, of course, of considerable interest to you, but beside the point.
393 is not an accurate statement of the law in any country I am aware of, to be clear.
If you have arguably committed wire fraud, and wire fraud is a felony, then you have arguably committed a felony. I think that's hard to dispute. And if that's a relatively ordinary thing to do, then a relatively ordinary thing to do is, arguably, a felony.
If I may be permitted an analogy, many of the arguments about how the law, while technically making such-and-such ordinary behavior a felony, doesn't really make such-and-such ordinary behavior a felony, but only such-and-such extravagant behavior of the same kind a felony, reminds me of some of Pett/t's stuff on being under another's power. If you are very lenient and let me more or less have free rein, unless, of course, I do something really egregious, in which case you will assert your authority, I am, even when not doing anything really egregious, not free—not, at the least, the way someone who had no one with even unexercised power over him would be. My having free rein is solely at your discretion, and if you should choose to rigorously prescribe what I am to do and not to do, that, in this scenario, is within your rights—I'm at the mercy of your whims in that respect. Even if you aren't at all whimsical and I feel I can rely on the stability of your character, I have no recourse if you decide to change things up.
Similarly, unless there are in fact statutory minima such that (in the scenario above) you have not arguably committed a felony because the flowers are so damn cheap and anyway you're not that ugly, the fact that in the ordinary course of events no one is prosecuted for such acts isn't to the point. If you were prosecuted for wire fraud, "but this is absurd, everyone does it!" and "but this is absurd, it's just flowers!" would not be defenses (assuming again in the latter case that no minimum is in play). It is just flowers, but that doesn't mean it's not also wire fraud.
The assertion that it makes no practical difference because you aren't going to be prosecuted for wire fraud seems to me to invite the response "well, let's hope so.".
If you could please clarify my comment still further, Keir, I'd appreciate knowing why someone who's arguably committed a felony is not a fitting target of a felony prosecution.
Felony prosecutions and arguable felons seem made for each other.
It has never been the rule in this country--I hope it never will be--that suspected criminal offences must automatically be the subject of prosecution.
Per Sir Hartley Shawcross. See his answer to a question on the matter for a pretty clear exposition of the UK practice. In general failure to adequately exercise prosecutorial discretion is oppressive and it is improper to bring prosecutions when not in the public interest.
Is 397 a followup to 396? By "fitting" I did not mean that the person should be prosecuted. Obviously it's not true that just because someone is arguably a felon he should be prosecuted as a felon, or at all. Maybe "appropriate" would have been better. If you are arguably a felon, then being prosecuted for a felony is not out of place. This is really no more than what, I take it, CharleyCarp was getting at frequently above, in, e.g., 193. Not that if you commit a criminal act you should in fact expect consequences (in many cases you would be justified in expecting no consequences), but that the consequences, should they arise, go with the criminal act.
Maybe I should have said, in fact, that suspected felons are the formal object of felony prosecutions. (Probably not.)
391: My understanding is that the publicresource.org people did a lot of work to identify privacy violations in the Swartz download - lots of exposed SSNs and other stuff that should have been redacted - and presented the problems to the courts, with the result that the courts started doing a better job complying with privacy laws. I think the docs are also the core of the plainsite database.
In the bigger picture, Swartz may have set things back. I don't think the government restarted the library-PACER program, though maybe some court records are free that weren't before?
But it's not fitting, or appropriate, to prosecute in those cases. It's a failure to discharge the quasi-judicial function of the prosecutor, to steal Shawcross' language.
(One might say: legal persons are fitting entrants into contracts. Just because you are a legal person, that doesn't mean you should enter into a contract. But you're the right sort of entity for contract entry. I allow that "arguable felon" is probably not a legal concept the way "legal person" or "contract" are.)
The problem is that arguably you aren't an arguable felon, because no prosecution would ever be brought, and no court would convict. (To be naively positivist about it.)
But it's not fitting, or appropriate, to prosecute in those cases.
I am still being misconstrued or expressing myself poorly.
I don't mean to say that it is recommended or the right thing to do to prosecute you if you are arguably a felon. I mean that if you are arguably a felon, as opposed to if you are inarguably not a felon, or if you are a rock, then you are in the right sort of way to be considered for (does that help?) a felony prosecution, and while one may or may not be brought, if it is brought you can't object "but you never should have been contemplating this in the first place!". The prosecutor may err in judgment about whether to prosecute for "quasi-judicial" reasons, but the fact that the prosecutor has to err in judgment about that shows that, to be blunt, I'm right. Maybe a good prosecutor wouldn't have to think twice about whether to prosecute you for $x. But that's different from the state of affairs in which there isn't anything to think once about because I represented my appearance to my date truthfully.
The redaction rules have been evolving, and now you have to check a box when you log into the ECF that you'll comply. There's still plenty of stuff that gets into filings that, while public, a person might not want readily google-able in connection with their name. The inconvenience of searching vast court records serves a real purpose.
It's not fraud if the reliance wasn't reasonable. And not a misrepresentation if it's a statement of opinion. Halford's date is probably out of luck.
But if the elements could be met, and it turned out that Halford had lured a stadium full of people, with flowers, (getting a kickback from a florist), then maybe felony prosecution isn't so far fetched.
I thought we were assuming that Halford was lying, i.e. he is not stating his opinion.
403 --- I would contend everyone is arguably a felon.
Kenny's system allows many natural moves, but does not allow the inference from "Kill everyone" to "Kill Jones!" It has been blamed for having an inference from "Kill Jones!" to "Kill everyone!" but this is not so absurd as it may seem. It may be decided to kill everyone in a certain place in order to get the particular people that one wants. The British, for example, wanted to destroy some German soldiers on a Dutch island in the second world war, and chose to accomplish this by bombing the dykes and drowning everybody.9 (The Dutch were their allies.)
9. Alf Ross shews some innocence when he dismisses Kenny's idea: "From plan B (to prevent overpopulation) we may infer plan A (to kill half the population) but the inference is hardly of any practical interest." We hope it may not be.
I would contend everyone is arguably a felon.
Indeed, that is the thesis of the book Three Felonies a Day.
On the other hand, I would like to see you argue that thesis with respect to a toddler.
Well! Most places the toddler would benefit from a conclusive defence of infancy, so yes. But that's the same kind of thing as observing that you can't prosecute the rain. (We set aside the issue of proof of age.)
407: the law prof quoted in the second bit of blocked text agrees.
I am still being misconstrued or expressing myself poorly.
I am doing whatever the opposite of misconstruing you is. Euconstruing you, perhaps.
If you want to be all boring about language.
I need to figure out how to access articles from home. The way they have things set up here it appears there's no proxy and instead you have to go to special pages on the library website, which means that searching and links don't work. So I have to figure out some sort of technical workaround to get the access that the university is paying unreasonable amounts of money for me to get. It's frustrating.
The way they have things set up here it appears there's no proxy and instead you have to go to special pages on the library website
If you have a computer on your campus network you can ssh into, you can use ssh -D to create a tunnel.
Yeah, that's roughly what I need to sort out. The computer resources in the dept. aren't very well documented (or I haven't found where they're documented), so I may need to ask someone to find out if there's a server set up for ssh. Presumably I can also change some settings on my office computer to allow me to use that one.
Eventually figured out there's a VPN. 419 would have been smart, but I don't think of this sort of thing during working hours when I'm at school and don't need it.
It's not clear to me under what circumstance tunneling is lying about your identity for the purposes of fraud. If changing your IP address is lying about your name, then tunneling is certainly lying about your location.
Is it? I somewhat regularly (as indicated) send my web traffic through classes.cs.uchicago.edu, but I have a legit account there, and what I'm doing is in principle no different from sshing into it and using links from the terminal (or forwarding X and using a graphical browser launched there, which is what I'd have to do if I wanted to use, e.g., jstor, or so I seem to recall).
I don't think "my location" is well defined in either case (tunneling or regular old remote access).
Or at any rate I don't think "my location" is identical to the location of my body.
422: Of course I agree, but I also don't think changing IP addresses is lying about your identity, and all the lawyers say I'm wrong.
423 I had a similar reaction to this interogative when asked for 'zip code' but never 'your zip code' or 'billing zip code'.
I treated it more like a family feud question and answered 90210 or tried to reckon the zip code of the retailer.
186
... He was initially being represented by people like Lessig but for reasons that aren't clear to me they stepped away from the case quite some time ago ...
Lessig alludes to a conflict.
... When my obligations to Harvard created a conflict that made it impossible for me to continue as a lawyer ...
Anecdotally, I had occasion to use Jstor heavily for a week in December, when I was writing something quasi-academic. I used the account of a relative at a university which has nothing to do with ttaM and -- because of my fanatical backup system -- have at least three copies of everything I downloaded.
However, the relative was extremely anxious that I get legitimate access if the piece is published. Which I have done, by paying a sub to the UL, so I take my laptop in and redownload everything I reference in the piece [ha hah or anything I want in the whole world!]
People have been expelled from the university in question for violating jstor TOSs. Arguably, in terms of earnings foregone because you miss out on a prestigious degree, this is a pretty damn heavy punishment. It's not jail, but it's a very substantial fine. And - so far as I know - these violations were not on a huge AS scale.
I think the only long-term answer to the economics of academic publishing is collective: ordinary public libraries should subscribe to things like jstor (as indeed my local library system subscribes to the OED) thus sharing the costs and making the benefits generally available.
There are lots of piblic or quasi-public models out there. Either aggregating institutional sites (e.g. the various European library projects like http://www.theeuropeanlibrary.org/tel4/ or http://www.europeana.eu/portal/ to take just a couple of examples) or working like the arxiv.
Re:427
I think if you are an external reader you can probably access most stuff from home via VPN or shibboleth authentication. I can probably point you in the appropriate direction if you like.
421: If you're trying to do something you're actually authorized to do, you're not defrauding anyone. The fact that what you're trying to do is something a librarian would have helped with, rather than ratting you out to the authorities for, is the tipoff.
Don't think of it as lying to a computer -- you can't defraud a computer, they don't believe or disbelieve anything. It'd be like lying to a rock. Fraud can come in where the computer is being used as a tool by a person somewhere to establish material facts about the user, and the user acts so as to misrepresent those facts. In Swartz's case, MIT was trying to use computers to ask the question "Are you that same guy who was trying to download all the JSTOR articles? Because if you are, we're going to stop you."
In your case, while there may be technical barriers to using JSTOR from home, no person (if I understand you correctly) put those in place to keep authorized users from using it at home. By evading those barriers, you're not misrepresenting anything material that a human being cares about.
So if MIT's response was automated, they always block the IP address of someone who exceeds a certain rate of download, and no human was involved at that stage then it wouldn't be fraud?
430
So if MIT's response was automated, they always block the IP address of someone who exceeds a certain rate of download, and no human was involved at that stage then it wouldn't be fraud?
I don't think that is relevant. If I give Amazon bogus credit card information it doesn't matter if it is accepted by a machine or by a human it is still fraud.
More briadly, I think that what AS did was certainly rude, and maybe should be illegal. But I think it certainly should not be a felony, and I think someone should write a law that is much more explicit rather than relying largely on distinctions that don't make a lot of sense. Maybe there should be a law where network admins can send you a letter banning you from access for some amount of time and if you break that you get fined.
(If he actually posted the copy-righted portions and they weren't scholarly articles, I'd feel differently. It's reasonable for that to be a felony if the total damages are large. Scholarly articles, however, should not have the same kind of copyright protection because the current scheme does nothing to promote progress in the sciences and instead actively harms progress.)
432
If he actually posted the copy-righted portions ...
I don't think whether he actually completed the crime matters too much either as long as he took substantial steps along the way.
None of the current counts seem to require an intention to post. I'd also be ok with a law banning an attempt to post or plans to post, but I do think the prosecution should have to prove that actual plans were made. (And again in this case the material shouldn't be under traditional copyright anyway.)
434
None of the current counts seem to require an intention to post ...
I think it is reasonable for the law not to require this. As for example laws against illegal possession of explosives may not require proof of intent to set them off.
I don't have time to get into this, but generally criminal law is not drafted at remotely the level of specificity you seem to be demanding. Generally you can expect that if you try to download an entire million-article database that is extremely valuable and make it available to the public (or, at least, that the government believes you did that), the government will come after you with whatever legal theories are reasonably available. In this particular case I have an extremely difficult time believing that Swartz didn't know his actions could lead to a serious penalty, and at the very least he reasonably should have known that.
434 -- A reasonable juror could well conclude that the downloading of millions of files, by a guy who has previously downloaded millions of files and given them to a publisher, was done with the intent to publish or have published. 'Beyond a reasonable doubt,' I suppose, is going to depend on whether the defense offers a plausible alternative (either through direct testimony or cross-examination).
You really think he didn't intend to make these items publicly available?
It may not have been a required element of the actual counts in the indictment, but this seems to be a pretty easy thing to prove.
It seems quite plausible to me that he only intended to make the public domain articles publicly available.
That still leaves the problem of what to do with the academic production of the past, which is a genuine and significant problem. Largely due to a nonprofit-forprofit partnership regime that may have made sense in the past but makes less sense now, we have a situation in which significant academic work is held under copyright by for-profit publishers. Now, those publishers did (and do) provide distribution, print, other services, so it's not like they're doing nothing, but they are pretty clearly unnecessary in the online world, but have a business model that requires payment. Here, though, too, there's not much stopping a determined group of universities from breaking through the current system. Whether journal by journal or as a whole, a university or consortium of universities could buy back private rights to academic articles from the current rights holders and release them. Yes, that's expensive, but the publishers paid in good faith to acquire the rights to the articles and require some form of compensation.This good faith argument is interesting. Many people find their property rendered valueless by changes in technology. Even more find skills they've invested years of their lives aquiring rendered worthless. Legal owners of our intellectual legacy have found a way to extend previous law to allow their property to retain its value even though they now only act parasitically. What other groups should adopt this strategy?
438 -- And his testimony on that might have been compelling. Or maybe not, depending on what's on his hard drive, what's he said to other people at the time, and all the rest.
This doesn't matter for the 'jumping the turnstile' claims, obviously.
And if the status of each document was relevant, then the prosecution would present evidence concerning the amount of time necessary to sift through the millions of documents, and determine exactly what was public domain and what wasn't. You've got a much more plausible argument for a download of 100 documents than a download of millions.
Everything published before a certain time is public domain, no?
re: 442
Establishing copyright is non-trivial.
The EU has a huge international data mining project which is running just in order to establish the date of publication and copyright status of documents.
It's a crap site, and doesn't explain well what they are doing. But basically they are harvesting catalogues from all over, and trying to establish where works were published first and when, via a load of intensive data analysis. Then they are providing access to that data in order to facilitate digitisation and dissemination.
Just establishing a definitive publication date is not easy.
Everything in JSTOR would have a publication date listed, no?
It might not be the definitive one for copyright purposes. Bibliographic metadata is notoriously shit. Articles get republished, or edited. Sometimes they are translated, and the publication data listed is for the translation but not the original version. Was the copyright renewed when the 28 year term expired (if that applied)? Is the author alive or dead? Does copyright belong to an individual or a corporation? etc etc etc
Hence projects like Arrow.
Can the Arrow of Brussels help AbeBooks standardize its indexing of when books were published? I tried to find old-timey books for someone on a certain subject, and almost everything that came up was a recent book that was apparently labeled with a random year for no reason.
re: 446
Quite possibly, yes.
445: Interesting. But a lot of those go in the other direction, right? If it's a reprint or a translation, the original is even older and so more likely to be in the public domain. I would have thought releasing anything published before a certain date would be pretty certain to be legal. (And if that was Swartz's goal, even if he messed up on some counts and a fraction of it wasn't really public domain, that sounds more like the case where someone would ask him to take it down and he would, rather than justification for a felony conviction.)
re: 448
Yeah, early 20s in the case of the US, and you're good.
Late, but I still don't understand why criminal penalties are appropriate; the best argument I've seen in this thread is that they are an effective deterrent for property crime, but as we all know "intellectual property" isn't the same as "property" (which is why it doesn't matter that the analogy fails so badly) but a constellation of laws for protecting the rights of creators. So why should an enforcement strategy that works for property crime work for intellectual property? Absent any affirmative evidence that it does, which I assume is at best contested.
as we all know "intellectual property" isn't the same as "property" (which is why it doesn't matter that the analogy fails so badly)
Money is still the same as money, though. And what this looks like to me is a set of acts that very plausibly would have left JSTOR with less money down the road, as a result of Swartz's infringement of their legal rights. (Not arguing that this would be a bad thing, or that it was right in the greater scheme of things to have prosecuted Swartz). Prosecuting someone for infringing on another person's legal rights in a way that causes them to have less money is really not an unconventional stretch of the criminal law.
Money isn't money unless it's backed by gold.
So anytime somebody is found to have plausibly reduced the future earning potential of somebody else that's a criminal offense?
453 amended: I mean, by infringing on their legal rights, obviously.
Not really. Anyway, I'm not sure what this is what LB is getting at or not, but my main thing is I'd like JSTOR to have enough money to continue unless there is a plausible replacement existing.
Once you treat intellectual property as property, pretty much exactly the same reasons for criminalizing its theft apply -- purely civil penalties are unlikely to provide either adequate deterrence against theft of the property or fully compensate the owner of the property for the loss, and most "thieves" of intellectual property are effectively judgment proof so purely civil remedies don't do much. I tried to explain that above.
I think there's a very good argument that there should be more laxity with criminal enforcement at the lower levels of infringement (ie, misdemeanor shoplifting is different than low level file sharing) but this is in fact mostly maintained by current law and enforcement practices, and is also not really relevant to Swartz's case, where the accusation is of massive downloading for the purpose of sharing a huge quantity of valuable files with the world.
So, for instance, if I was illegally terminated by an employer would they be subject to criminal prosecution? Or if somebody libelled me in such a way that it might be more difficult in the future for me to obtain a specific job?
Once you treat intellectual property as property
So it is the same as property?
That is, the same as physical property?
Yes, the point of intellectual property is to turn something intangible into something akin to a property right in a tangible good. There are lots of arguments about when its appropriate to do that, but thats not the issue here. Once you've done so, the reasons for applying criminal (as opposed to purely civil) penalties to the theft of that property are pretty much the same as the reasons for applying criminal (as opposed to purely civil) penalties to the theft of tangible goods.
456: But, again, there's a possible and even plausible scenario where his intent was only to distribute public domain documents.
458: No, for either of those two examples. But the analogy to property isn't as weak as you're claiming: it's actually pretty good in this case. JSTOR sells something: access to a database of articles. If Swartz illegally obtained access to all the same articles, that would diminish the monetary value of the thing JSTOR previously had a legal right to, and the expected income from it.
There's some sense (often honored in the breach in US law, of course) that civil remedies are appropriate to resolve merely private disputes between private parties, while criminal penalties are only appropriate when there is a harm to the common good. While intellectual property is "akin" to real property or chattels, it's of course different in many ways. Some of those differences provide reasons to reconsider whether criminal penalties are appropriate for violations of intellectual property rights, even though big rights holders would prefer to have the criminal law standing behind them in their enforcement efforts.
In other words, it's an analogy that doesn't prove a whole lot.
It's a pretty good analogy for property crime. If you steal something from my house, arguably that's only a "private" dispute between me and the person who took it, since we're the only two people affected. There's not much evident harm to the common good, except that the common good is supposed to (under our system) protect the sanctity of property rights.
I think we should give Bave some kind of "most reasonable lawyer on Unfogged" prize. (Autocorrect wants Bave to be Babe.)
Yes, the point of intellectual property is to turn something intangible into something akin to a property right in a tangible good.
Sure, right, I gather. The constellations of laws to provide for the ability for creators to gain financial value from their creations was created by analogy to the laws which govern physical property. But analogies being inexact the specific ways in which one maps to the other are going to be subject to negotiation and interpretation, right? So, in the case of physical property there is some reasoning (and presumably a lot of historical evidence of efficacy) behind the application of criminal penalties. What I'm asking is why that reasoning specifically should apply intellectual property, when calculations of lost value are so evidently different? The answer is obviously not "because it is the same as property", because in a huge number of evidently important ways it differs. I am assuming that the answer is also not "there is a documented history of efficacy as a deterrent" because one, this stuff is too new, and two, from a (legal) layman's perspective it has been an impressively lousy deterrent thus far.
466: Maybe because I'm not a real lawyer yet.
The "lost value" calculation is certainly an important consideration, and I think reasonably plays a role in things like sentencing and enforcement -- figuring out the value of the object stolen is relevant to a lot of criminal law issues. But it's not really relevant to this particular case, where (again, if the indictment is to be believed, which it may not be) the lost value to the holder of the property right was certainly extremely high.
Or, put differently, sure, you need to look at specific features of the property right at issue in figuring out things like enforcement, sentencing, what was stolen, etc. Those are all important and consequential legal issues that one can spend a lot of time figuring out and trying to get right. But they don't really go to the initial question of "why should you ever treat a theft of intellectual property as a crime, as opposed to a purely civil matter, at all"?
But it's not really relevant to this particular case, where (again, if the indictment is to be believed, which it may not be) the lost value to the holder of the property right was certainly extremely high.
I am, needless to say, not particularly ready to concede that.
But... I think at this point maybe WMIBSALB since I know perfectly well we're just going to talk past each other.
I'm confused by how the standard lawyer view here seems to be that obviously the minor infractions many of us have committed would never be prosecuted, so only the unusual damage Swartz would have caused makes it reasonable to prosecute him, and yet considerations of whether he actually intended to do such damage are not relevant.
But they don't really go to the initial question of "why should you ever treat a theft of intellectual property as a crime, as opposed to a purely civil matter, at all"?
So what does?
436: Perhaps he should have known the degree of jeopardy he was placing himself in, but recognize that at the time he was a 24 year old boy who'd had a year of college; it's reasonable to attribute a degree of naïveté to him.
451: Since JSTOR settled their civil suit for just the return of the purloined materials, it's hard to claim they lost money.
472: This does seem to me to be an interesting question -- in this specific case, the answer looks kind of obvious, but maybe I'm wrong. A strong argument that there wasn't any significant money at stake would, for me, change a lot of how I'm thinking about this.
What does it mean to "return" a PDF file?
465: Criminal penalties for theft arguably deter other thefts, and this deterrence is considered to be in the public interest because theft of chattels is considered a really bad thing that none of us want to have happen to us. Such penalties also serve a retributive purpose of punishing someone who has broken a rule that we all think is important for having a livable society.
It's not clear that these considerations are the same with regard to IP "theft", a/k/a copying. Maybe similar considerations come into play, particularly with major, beneficial enterprises that depend on the enforcement of certain IP rights.
475: 451: Since JSTOR settled their civil suit for just the return of the purloined materials, it's hard to claim they lost money.
How would this not apply in exactly the same words to a conversion of tangible property? "Because they dropped the suit after the borrowed car was returned, it's hard to claim that failing to return the car would have cost them anything"?
So, in the case of physical property there is some reasoning (and presumably a lot of historical evidence of efficacy) behind the application of criminal penalties. What I'm asking is why that reasoning specifically should apply intellectual property
If perpetrators are very often judgment proof, what other method of deterrence would you suggest, apart from criminal penalties? (Apologies if you already suggested something--I haven't followed the whole thread.)
477: Destroy your retained copies of it?
More broadly, the argument that the government should protect creators of IP from competition, over an extended timeframe, to incentivize them seems to me to be parallel in many ways to arguments that we shouldn't tax the rich, so that they will create jobs.
And now my plane is about to take off.
442, 444 -- And if AS had arranged his downloading so that it targeted material by publication date -- or by subjects where publication date might be implied, or some other way that would make at least a rough cut tending to public domain, as opposed to just everything -- this would be pretty powerful evidence. Not saying it's the only evidence there would be, not at all.
Property is what we as a society say it is. My perfected security interest in item X is just as much property as your bike or my sister's house. And just as little, for that matter.
For the AS thing, I think 'jumping the turnstile' is a much more useful analogue. A library can charge admission -- and it can charge admission to non-members -- regardless of when the books on the shelves were published, and what sorts of rights the library has each the particular book. To charge a person with jumping the turnstile, it obviously doesn't matter which books the person was going to read, but obviously the library is going to be a whole lot more serious about the guy who jumps the turnstile so he can copy vasts numbers of books and put the library out of business.
It's a bold act of civil disobedience. For which a high price (6 months in jail, a felony record) would have had to have been paid. Maybe it would have had the desired effect.
480: I have no idea. But the fact that there isn't an obvious alternative form of deterrence is not an affirmative argument for continuing a form of deterrence that is ineffective (especially if the ineffective deterrence carries heavy social costs).
Criminal enforcement of copyright violations has been quite effective as a deterrent against large scale infringement. You can argue about whether that's a good or a bad thing, but it's hard to argue that it's been ineffective (though surely not perfectly effective, either, but then no criminal law is).
473 -- Happy trails. I don't think it's always obvious, because, basically, whether something is pursued or not depends on the agendas of other institutions. Prosecution/or administrative discipline short of prosecution (with prosecution as a looming threat, should you resist) can be a very useful pretext to get rid of someone, or knock them down a peg, or whatever. Now obviously, if it's a pretext for taking an action that is otherwise prohibited -- firing a female employee because she is female, but saying it is because she changed her ip address to evade some sort of internal controls -- is going to be problematic, if the 'victim' can prove it.
Assume for sake of argument that nearly everyone is breaking some law nearly every week. This imposes a triage on the prosecutors, to decide which crimes are the most serious, and which criminals are the least desirable. These determinations might be correlated, but are not exact. And they have to worry about what they are going to be able to prove, much less what they know about.
Can you, essear, create a situation where your minor, but repeated, crimes bring pursuing you onto someone's radar? Given the objective and always wholesome nature of academic politics, the answer is surely no.
I'd like JSTOR to have enough money to continue
Criminal enforcement of copyright violations has been quite effective as a deterrent against large scale infringement.
It has? In the modern era? It may just be the window on the internet that I see but my strong impression is that those content providers who have done well are the ones who have focused on beating infringing technologies on ease-of-use, matching them on price, or both, and that nothing has really reduced availability or the willingness of people to put stuff online (I mean, the Pirate Bay have jumped through a lot of hoops, sure, but those have largely been technical. And you can still get cam releases of any in-theaters movie you want with minimal effort).
And you can still get cam releases of any in-theaters movie you want with minimal effort
Wait, really?
491 cont'd: and, indeed, I would say that the "effort to acquire copyrighted material" function has been monotonically decreasing for at least thirty years, notwithstanding occasional technological or market-driven blips like when Dish Network finally shut down cloned cards (which may well have been the beginning of their doom) or when Apple launched its various App Stores.
492: Watch out, Sifu! Urple could be undercover!
It's been highly effective at preventing a large scale pirating industry from completely content, at least in the developed world. Things like Pirate Bay are obviously a problem, but you have to consider not just the fact that enforcement isn't 100% effective (of course it isn't) but think about the hypothetical alternate universe in which there were no such penalties.
489.last: If someone was an outspoken political advocate of copyright reform, or say was instrumental in the defeat of congressional copyright laws, it seems plausible that big content could get some future politicians looking for money to go after you on run-of-the-mill crimes.
As I said, I think AS's actions were at the very least rude and possibly criminal, but I certainly think that the role he played in the political victory over SOPA/PIPA probably played a part in the prosecutions decisions.
496 last: I highly doubt that, though I don't really know anything about the Boston USAO. The DOJ generally didn't really care very much about SOPA, one way or another.
The prosecution's decisions seem to have been driven by the sense that there was an attempt at a fairly large scale crime, which may or may not have been true in reality but certainly seems plausible on the face of the facts and the indictment, and they do seem to have offered him a fairly lenient plea deal based on those facts.
492: Yes, and the quality is often complete shit that you won't find out about until you've downloaded them.
It would be smart of studios to release their own high (initial) quality cams with horrible problems halfway through (people talking, standing up in the theater, camera shake) just to poison the stream of infringing material. If they managed to destroy the credibility of infringing sources, or even just taint it significantly, they'd be a lot better off than they are going after individual modest scale infringers through the courts.
Swartz had been investigated by the FBI for the PACER thing.
The thread has moved on, but thanks for 443, ttaM. The Arrow project is interesting; certainly there's a lack of differentiation in bibliographic data between copyright date and publication date (all those reprints!)
Re: 446: I'm not sure why/how Abebooks needs to standardize its indexing of when books were published, because it's not meant to be a research tool, but is, rather, a marketplace. (I mean, it would be lovely if it happened, but Abebooks is owned by Amazon now, which isn't known for clarity.) If you're looking for old-timey books, you'd probably want to identify what you want via an actual library/informational site first.
498: I've never cared enough about seeing mainstream movies to bother with downloading cam versions. I understand some of them are pretty high quality but really, who cares? Anyhow, going to the movie theater once a year or whatever is fun.
think about the hypothetical alternate universe in which there were no such penalties
That is, where there were civil penalties but no criminal penalties? I can't for the life of me figure out how it would be very much different.
But basically they are harvesting catalogues from all over, and trying to establish where works were published first and when, via a load of intensive data analysis. Then they are providing access to that data in order to facilitate digitisation and dissemination.
Just establishing a definitive publication date is not easy.
Gosh, that sounds like the sort of thing that an extremely gifted and public-spirited computer genius with an interest in access to public domain information and lots of experience with big databases could help with. Does anyone know anybody like that?
from a (legal) layman's perspective it has been an impressively lousy deterrent thus far.
This may change if the government is able to hound a few more hackers/downloaders into committing suicide.
In general I don't like arguments based on deterrence or enforcement effectiveness because one way to address them is just to double down on taking peoples' rights and freedoms away -- not only disproportionate punishments, but fundamentally changing the surveillance/downloanding infrastructure of the internet to make enforcement easier (as I mentioned above, Swartz talked about this with respect to SOPA/PIPA, see the link in 61).
The end argument to me always has to be based on the idea that trying to make the physical property analogy work for intellectual property entails unacceptable social costs.
I tried to find old-timey books for someone on a certain subject, and almost everything that came up was a recent book that was apparently labeled with a random year for no reason
Even more inexplicably, a couple of weeks ago Youtube started timestamping demonstrably contemporary videos in my channel subscriptions with dates considerably earlier than the invention of the web. This Co / mpany of He / roes replay was posted 38 years ago, was it?
502: dsquared, I don't know if Aaron could have done it on his own. Maybe he could have helped. The data is unfortunately a mess, and it's massive. You've got worldcat, and the Library of Congress, and basically MARC data in general, and numerous other sources of information, and there just is not any standardization from a computer standpoint. It's been a few years since I read the palimpsest listserv out of Stanford, but last I knew, they detailed the difficulties. It looks now like they've merged with a bunch of other things, so forgive me if I don't point in a helpful direction.
re: 502
Don't be daft. One very good hacker is hardly going to replace the work of hundreds of people who are i) also bloody good programmers, ii) specialists in exactly this type of data. If he or anyone else had wanted to join in, there are loads of open source projects working on this sort of stuff.
I mean, I know everyone likes to think they know everything about everything, but this stuff is actually my job. So I do sort of know what I'm talking about.
If he or anyone else had wanted to join in, there are loads of open source projects working on this sort of stuff.
Yes, I used to know this guy who was really well connected and respected in the open source community. Terrible shame what happened to him.
I don't get what your point is. It's a shame. Yes. But other than that, all I'm reading is some cheap snark.
Is your point that he Aaron Swartz could have made some sort of breakthrough in this area all on his own through sheer force of genuis? That he was desperately trying to get into this area, but was being shut out by 'big library'? I presume it's neither of those. So what is it?
FWIW, Swartz had already joined in with his work on the Open Library. It's not like he wasn't already involved in open access work. He just doesn't seem to have been able to keep himself from crossing the line.
If his intent had been to release only public domain work, he'd probably have worked with people - I don't know of any centralized project in the US, but plenty of people work on copyright in libraries and Swartz knew some of them - on clearing things before posting. Even the public domain PACER download wasn't posted until after a lot of discussion with the relevant authorities.
"I mean, I know everyone likes to think they know everything about everyone, but this guy was actually my friend. So I do sort of know what I'm talking about"
Aaron was the absolute opposite of a lone wolf. He was always trying to put teams together. Yes he could have done a lot himself. Yes, he was almost certainly a better computer programmer, probably by a factor of at least ten, than anyone working on your projects. Yes, he had run big open source projects which actually delivered what they were meant to deliver. I don't know precisely what he might have planned to do with 4.8 million documents, some of which were in the public domain and some weren't, but I would have guessed that he would have been perfectly capable of contributing something fantastic, and quite possibly something that nobody else could have come up with. He was that good. But he didn't tend to work alone at all.
I knew Chris Lightfoot too, and Aaron was even better than that. This wasn't just a normal IT guy we're talking about.
But you (or at least I) need an actual functioning institution, not a project. It's a library. You can't replace it with "something fantastic that nobody else could have come up with." It's supposed to be something that already exists, but electronic. What Swartz was doing was possibly a great compliment to JSTOR, but hardly a replacement.
I don't actually know what he was doing or planning to do, but on the basis of his track record, he had earned the benefit of the doubt.
I don't know where you're getting the idea that he was going to replace JSTOR single-handedly or even wanted to. The internet archive already exists as a repository for public domain items. It's waaaaaaaay worse than JSTOR for searching, but it's an actual functioning institution.
I don't have the idea that he's going to replace JSTOR single-handedly. I'm wonder how JSTOR was going to function if its income wasn't protected.
I do public interest work as well (in the area of bank regulation) and there is a crying need for a sophisticated IT person to offer input on financial oversight and disclosures/transparency. I read about Swartz and think how much he could have done in so many areas.
I'm wonder how JSTOR was going to function if its income wasn't protected.
By providing a level of service that beats what other people are doing with the same content? And that's assuming Swartz was going to post everything, which hasn't been proven.
Otherwise, JSTOR has plenty of copyrighted walled off stuff to subsist on. Not sure if anyone's clicked on the link in 490, but they're pretty healthy. And currently, they are not objecting to the ongoing JSTOR liberator project, which is releasing public domain material (though I'm not sure where it's going).
Thanks for the link in 490, fa. I've passed that along to a bunch of people already (without giving you any credit at all).
without giving you any credit at all
It wasn't my original idea to look it up, anyway. Some presentation Lessig gave a few years ago (which I saw online somewhere) used stuff from those filings to make a point.
It's great that they are healthy. That means persistence and continuity is more likely.
re: 511
I'm sorry, but you have absolutely no basis for thinking that 'Yes, he was almost certainly a better computer programmer, probably by a factor of at least ten, than anyone working on your projects' might be true. Vastly better programmer than me? Sure. I'm a shit programmer. Vastly better than most of the people I work with, quite probably. A factor of ten more than anyone working on these projects? Where we are talking hundreds of people with decades of experience across dozens of institutions? Now you are well into the realm of meaningless hyperbole. Driven by affection and respect for someone you knew and respected, so understandable, but that doesn't make it true.
Aaron Swartz sounds like a good guy, lots of people worth listening to respected him. I have no interest in denigrating him or his work. But when people start getting glib about vast multi institutional problems, my eyebrows go up. I remember you (dsquared) writing something on twitter about glibness about handling large amounts of incommensurable data being a good smell-test for IT bullshitters. Well, this is like that.
And to be clear, I kind of love JSTOR, personally - or at least what JSTOR provides. But I've had the privilege of nearly unbroken access through library affiliations since it was founded.
Chippy bollocks ("Blogosphere People's Princess" really). Everyone knows that there are a small number of programmers who are orders of magnitude more productive. It's one of the things people know about computer programming; it does have stars. Aaron Swartz was one of them. Given what everyone who knew him says, including people who you apparently respect, why do you think he was just AN Other guy who ought to have knuckled down and signed up for somebody else's project?
Some people are just posers and some people walk the talk. There's a list of Aaron's achievements in every single obituary. Res ipsa loquitur.
FIRST ALAN TURING
THEN KURT GOEDEL
NOW AARON SCHWARTZ
WHY MUST THE ONCE-IN-A-GENERATION COMPUTER GENIUSES ALL BE DESTROYED BY REAL OR IMAGINARY CONSPIRACIES
I'm not even sure what it means to say that A is n times better than B at something.
"Faster", you could do. You're right that "better" is hard.
why do you think he was just AN Other guy who ought to have knuckled down and signed up for somebody else's project?
I didn't write that. That he _should_ have done anything. Just that the option was there if he'd wanted to. He obviously didn't, and maybe what he did want to do (and was tragically unable to) would have been tons better. I don't know. I don't think you do either.
The 'blogosphere people's princess' comment wasn't about _him_ it was about some of the hyperbolic things people were writing about him. Not the same thing at all.
I'm out on this one.
The 'blogosphere people's princess' comment wasn't about _him_ it was about some of the hyperbolic things people were writing about him. Not the same thing at all.
Seriously. The original comment was thoughtless, but that's really unworthy of you.
Not being obtuse, but I genuinely don't understand 528.
Dsquared you are much more convincing when combating the pompousness of others than when acting pompous yourself.
Can this not be a squabble? Dsquared seems to have actually known the guy, and he does seem to have been a wonderful person. Arguing with someone who (a) has genuine reason to be personally upset and (b) is insanely combative at the best of times seems like a very poor idea.
I, personally, am convinced that no one, ttaM included, meant to say anything making light of Swartz's death or impugning his value as a person.
re: 531.last
Sure, definitely.
529: just a guess, but maybe he think you're disparaging some of the (very thoughtful and moving) tributes penned at CT.
534: I wasn't trying to pile fuel atop the fire. I'm sorry you read it that way.
I'm sure it was well meant, I just thought it was susceptible to an inflammatory interpretation. No evaluation of your motivation was intended.
I don't get how 533 is squabbling.
And fwiw, 532 isn't meant to read grudging or dismissive.
I don't really see how, but I'll trust you that it could have been read that way. Again, that wasn't my intent, especially given that I appreciate your effort to calm the waters.
539 to 536. But again, I'm seriously not interested in roiling the waters that you're trying to calm, LB.
I am, though, going to mix metaphors. Until the cows come home.
I deny that 540 incorporates a mixed metaphor. It looks perfectly cromulent to me.
Piling fuel atop the fire can roil even becalmed waters.
In Wisconsin, where the cows come home.
Well that's a bridge too far over a troubled snowy evening.
Orin Kerr posted more analysis, including about the sentencing and prosecutorial discretion.
I pretty much wholly endorse that, though I'm not expert enough on CFAA to judge the analysis there, one way or the other.