Did feds over-react, over-reach in case of the over-downloader?
By adamg - 7/25/11 - 2:33 pm
SJ links to some critical analyses of the federal case against Aaron Swartz for downloading millions of documents from an online database.
Comments
Fun article if you want to
Fun article if you want to see how the author can legitimize someone using their specialized skills to to steal information that they do not permission to access.
Information cannot be 'stolen'
Stealing means that you deprive someone else of possession.
No - stealing means taking
No - stealing means taking what is not yours.
So Ron - tell us your Social Security number, bank account numbers, online business passwords, etc. You won't be deprived of their possession, right? Information should be free!
If he told you
It still wouldn't be stealing.
Stealing is a deprivation of a finite source. Copying is a duplication essentially making it NOT a finite source. Stealing is a first-order effect. If I steal your bike, you don't have a bike. Copying is a second order effect, if I steal J-STOR articles, then I could produce them for others who wouldn't have to pay J-STOR who might not go out of business and stop producing articles.
There is a difference and it's an important one to maintain because there's absolutely nothing about copying that forces the loss of value to J-STOR. There are other methods of monetizing content that allow for copying as part of the model. Stealing something means that there's a direct loss of value to the person stolen from. Copying is a second order effect and so the loss of value is not a direct result of the copying.
not to mention...
...that even if someone gets your social security number and all sorts of confidential information, it's not the possession of the info that's the threat here. It's the act of committing a fraudulent act with the information that's the problem. Identity "theft" is falsely presenting yourself as someone else to defraud someone. The other person still has their identity. I imagine that the relevant laws probably assume that anyone taking your identity info is intending to defraud even if they never get around to buying all that shopping network crap on your Discover card. Any legal beagles (know-it-all Cliff Clavin types) that can confirm that brazenly ignorant statement? (I am not a lawyer and I do not play one on tv.)
When you get your SS number "borrowed", let us know.
"...if someone gets your social security number" it calling stealing your number, period. Using the number to steal your identity is what follows, which is also a crime. But I digress.
Your homework:
1. Find some websites on "identify theft" and do a search and find for how many times the word "steal" is used.
2. Use a dictionary and look up "steal".
Extra credit: Check out some books on Intellectual Property law at your local library and then explain to us how those who possess information that they are not the original owner of is not a threat to the person and/or persons and/or company that it was, um, not stolen from.
your attitude is showing
Thank you for your helpful web searching tips.
I guess the second one would be the more appropriate definition, since the first implies that you're depriving the person of the thing being stolen which is not the case in the second one. The second definition follows through the taking/copying of the more intangible thing and then doing something with it that brings benefit to the person who stole it and denies benefit to the victim.
The point being made is what if someone takes information and does nothing detrimental to the person who owns it and has not been deprived of it or their ability to benefit from it. It's a bit philosophical, and obviously anyone that goes through alot of trouble to access something is probably going then to use it in some way to benefit themselves which would deny that benefit to the original owner. But it seems like if someone gets information through a source that that's either paid for or there's no cost incurred, and then doesn't do anything with it before they are caught, you would have to prove that they have the intent of denying the original owner the benefit of that information or that they plan to use the info for fraud. There really isn't much use in getting someone's social security number except for identity theft or to buy savings bonds for them so that shouldn't be a huge hurdle to prove.
Like I said I'm not a lawyer, but as someone else here has alluded to, the valid desire to protect intellectual property rights of the originators of ideas has been conflated into the right of third parties (frequently non-human corporate entities) to deny information to people without first extracting a pound of flesh. Fuck that. These stupid cases (I have no desire to defend this Swartz guy at all) help to get conversations going on the topic which I think is useful. Slightly more useful than snide comments that are meant to stop conversation with the assertion that "I have the answer and you should shut up b'cuz yer stoopid."
You mischaracterize the article
You didn't read closely enough. A portion of the J-STOR archive is digitized versions of public domain materials. These materials are sometimes, but not always, available through other digitization efforts. Also, regardless of the medium, they are always public domain. J-STOR just happens to add a convenience to them for someone who is already using J-STOR for other non-public stuffs.
Copying those things is not stealing anything they didn't already have a right to. The only thing you could claim was stolen then would be the bandwidth to send the files. I bet MIT's license to J-STOR doesn't charge for bandwidth however.
The computer fraud charges might stick however, since Schwartz probably had no currently valid MIT network access at the time.
Ultimately the article examines a very real and very sad aspect of the criminal side of this case on what should (and used to be) a very civil law concern: We have allowed industry groups to turn our civil laws into criminal laws through aggressive lobbying in order to protect an antiquated valuation of their products. This puts the power in the hands of the government to handle matters that would have otherwise been settled civilly and forces them to "crack down" on civil offenders in order to discourage other potential civil offenders by handing out stiff criminal sentencing...all in the name of corporate profit. Criminalizing civil laws doesn't benefit anyone but the corporations who want to be seen as "citizens" when it benefits them, but punish other *real* citizens who wrong them using government impunity when it benefits them more than their civil recourses.
"The computer fraud charges
That might be why he broke and entered the property using a previously squirreled away laptop, and repeatedly worked to break the password protection.
The idea that the unauthorized use of information is not stealing doesn't make sense in an age when manufactured objects have been decreasing in value over many decades while the value of information has been increasing over those same decades. Information is a commodity. Both MIT and Harvard, where Mr. Swartz was a fellow, charge a lot of money to access that information in the form of professor salaries, keeping the lights on at the library etc. etc.
There are those who feel that information should not be subject to property laws or be conserved, curated or regulated in some sense. Although I have some sympathy to the argument that corporate interests have abused the copyright system, I realize that information has value.
I don't agree that we can separate the medium, from the message. I would imagine that MIT has a fairly large investment in computer/network that in someway serves the public good. I think it's in the public interest to criminalize unauthorized use, trespassing perhaps. Computer security is perhaps like car locks, it keeps honest people honest, but a car thief will simply work around the locks.
I suspect that Mr. Swartz is someone who feels that the rules don't apply to him. Because he can do something, he didn't feel that locked doors, password protection, civil and criminal laws were any reason for him to keep his digital paws out of J-Stor.
In any event, there is much support for Mr. Swartz and he'll have his day in court. It will be up to the prosecutor to make his/her case and Mr. Swartz to prove his innocence.
"Prove his innocence"
No, that's not how things work in the USA. The prosecutor has to prove guilt.
So many things backwards
Information is not a commodity. It can be commoditized...pretty much everything can if you allow for it. If information is a commidity, then what is primary education? A freebie like drug dealers give out to get you hooked on their stuff? Should I charge you for this conversation if I link to more information that should improve your understanding that information is not a commodity? How do you discretize information into units for sale? By the book, chapter, word, concept?
We can easily separate the medium from the message. Here's a demonstration. Instead of reading the next paragraph off of your computer screen, print it out first. Or hand your computer to your friend and have him read the next paragraph to you out loud instead:
Finally, as Ron points out above, the prosecutor has to prove Swartz is guilty. Swartz doesn't have to prove anything at all.