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Copyright Law – The Government vs. The People

The Indictment of Aaron Swartz
United States federal prosecutors indicted 24 year-old Harvard Fellow, Aaron Swartz on charges of wire fraud, computer fraud, unlawfully obtaining information from a protected computer, recklessly damaging a protected computer and aiding and abetting. Read the full indictment here. What was Mr. Swartz’s alleged crime, for which he faces up to 35 years in prison and a $1 million fine? Mr. Swartz is accused of the digital version of taking books from a library. Granted, Mr. Swartz allegedly took about 4 million articles, book reviews and other content, but unlike a theft from a library, copies of all the materials still remain in the original library.

The Reasoning Behind the Download
Swartz is accused of taking the material from JSTOR, the organization that stores archives of the allegedly downloaded academic papers and Massachusetts Institute of Technology (MIT), where the material was stored. Because the writers of these materials are generally academics, it is a reasonable assumption that the writers were not provided any direct monetary compensation for their work, and that they would personally prefer their work be broadly disseminated without charge. So, what is the problem? JUSTOR charges large fees for access to these academic papers, fees large enough to prevent you or me from ever having seen most of them. That said, under current copyright laws, JUSTOR is free to license this material and then charge whatever it wants for access. From a philosophical standpoint, it may not be fair or ethical, but under current copyright laws, it is still legal.

The Computer Fraud and Abuse Act
In 1986, Congress passed The Computer Fraud and Abuse Act to pursue people breaking into protected computers to obtain information. The Act provides severe criminal penalties for anyone who intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains information from a protected computer. Congress amended the Act many times, including several controversial amendments associated with The Patriot Act. Federal enforcement of The Computer Fraud and Abuse Act against people stealing government secrets, conducting corporate espionage and stealing financial information is the reason Congress enacted the law. More controversial uses of the Act involve large institutions pursuing individuals who are not accessing computers for monetary gain, but for uses the institutions simply do not like.

Government Enforcement
Large institutions would have recourse without the need for government intervention. Under current copyright laws, owners and licensees of the materials have a civil (money) lawsuit against anyone alleged to have taken the materials without authorization, or in violation of their terms of service. Because damages in the Swartz case would be complicated to prove, a civil lawsuit would likely cost more than the damages that could be recovered. Enter the federal government on behalf of the large institution. The federal government indicted Swartz criminally. This means that taxpayers will foot the bill for the costly case. JUSTOR and MIT can sit back while the taxpayers do the heavy lifting. While such action by the federal government may be justified in a case where someone makes hundreds of thousands of bootleg Blu-ray movies, what is the justification for spending (possibly millions of dollars) prosecuting a lone academic?

More to the Story
Criminals commit hundreds of cybercrimes daily, many involving the loss of hundreds of thousands of dollars. Why is the government going after a case involving an academic, involving what appears to be nothing more than speculative damages? According to Swartz’s website, he downloaded the materials to investigate the source of funding for the academic papers. Swartz authored numerous articles investigating the “corrupting influence of big money on institutions, including nonprofits, the media, politics and public opinion.” Knowing that a study was financed by a large entity seeking to sway legislation, would certainly be of interest in weighing the study’s merits. The fact that funding sources may not be readily apparent, may have even more impact on the study’s credibility. Exposing funding sources is, from the public’s perspective, a laudable endeavor.

My own experience requesting the federal government to pursue alleged corporate espionage, lead me to believe the agents handling cybercrime matters did not have much interest in pursuing a criminal case, even where hundreds of thousands of dollars in damages were involved. Why single out Swartz? Swartz’s history of investigating corruption may not have played a role in his indictment, but misconduct by federal prosecutors is not unknown, and they are very rarely held accountable for their misdeeds. Are the federal prosecutors in Swartz’s case corrupt? Unlikely. More likely, prosecutors are doing what they are told, prosecuting the case assigned. The real question is who ultimately decided to redirect vast taxpayer resources to this particular academic, and why? The benefit to JSTOR and the in terrorem benefit to the corporations funding the studies is obvious; the benefit to the American taxpayer is unclear.

The Manifesto.
Yesterday, a torrent user identifying himself as “Greg Maxwell” used The Pirate Bay torrent site to make publicly available a large portion of the materials available through JSTOR’s paywall. Maxwell also provided a manifesto detailing his thoughts on copyright enforcement. A portion of Mr. Maxwell’s manifesto reads as follows:

Large publishers are now able to purchase the political clout needed to abuse the narrow commercial scope of copyright protection, extending it to completely inapplicable areas: slavish reproductions of historic documents and art, for example, and exploiting the labors of unpaid scientists. They’re even able to make the taxpayers pay for their attacks on free society by pursuing criminal prosecution (copyright has classically been a civil matter) and by burdening public institutions with outrageous subscription fees.

While questions remain unanswered, at the present, at least from Mr. Maxwell’s perspective, the pirates have become the champion of the people, and the government their foil.

Brett Trout

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