[personal profile] sinister_sigils
Unlike many in the on-line community, I have no sympathy whatever for the late Aaron Swartz. I am sure his untimely death is a great sorrow to his family and those who knew him, and they have my commiserations for their loss. However, in my (acknowledgely arrogant) opinion, what befell him was the result of his own bad judgment.

The facts are not in dispute: Mr. Swartz gained unauthorized access to a restricted area at MIT, connected a laptop computer, and downloaded thousands of documents that JSTOR (Journal Storage) archived, with intent to make them freely available on the Internet. Mr. Swartz, as a Harvard research fellow, had a JSTOR account, so his basic access wasn't unlawful, but the mass downloading exceeded his authorizations. And, of course, he had no authorization to tamper with MIT's equipment.

Now, if we were speaking of physical property, what Swartz did would have been considered Burglary (loosely defined as entering the premises of another without the others' consent, with intent to steal or commit a felony therein) and Theft (taking and carrying away the property of another without their consent, with intent to deprive them of the possession of it). Where things get gray is with data, which you can both steal, and leave the holder in possession of. There is precedent for such crimes in the pre-digital era though, such as Theft of Trade Secrets, which established that copying plans or client lists was still stealing.

Plain burglary, without enhancers such as "while armed" is a felony punishable by up to ten years imprisonment in most jurisdictions. Theft is typically classified by the value of the items stolen. If the documents taken by Mr. Swartz exceeded $10,000.00, the potential penalty would also be up to 10 years in prison. So, if one were looking at charges of only one count of Burglary and one of Theft, Swartz would have had "exposure" of up to twenty years in the penitentiary. Since he evidently, per the indictment, gained access to the server closet numerous times, each of which would be a separate count of burglary in the "material world," the Federal prosecutors' decision to issue charges carrying a potential 35 years imprisonment is not such a gross overcharge as has been alleged.

Mr. Swartz may have thought that his public position would shield him from prosecution, or that, given that he escaped prosecution for similar escapades involving the Library of Congress in 2006 and the Public Access to Court Electronic Records (PACER) database in 2008 he would not be prosecuted this time, but he misjudged.

In point of fact, Swartz was never in danger of going to prison for 35 years. Two days before his death, Federal prosecutors had told Swarz's attorney that Swartz would "have to spend six months in prison and plead guilty to [all] 13 charges if he wanted to avoid going to trial," which, from the point of view of an experienced former prosecutor and defense attorney, is a not at all unreasonable offer. Six months at a probably minimum security institution is about as light as it gets, federally speaking. One expects that the more onerous part of any sentence would have been the couple of years of supervision, which undoubtedly would have included serious restrictions of on-line activity.

As the song says, "If you can't do the time, better not do the crime." Having been around and paying attention during the Vietnam war era, I got disgusted with protesters who committed acts of civil disobedience up to outright sabotage, and, when apprehended, fought tooth and nail to stay out of jail on every imaginable excuse. They wanted to be romantic outlaws, but had no interest in being "prisoners of conscience," and no more did Mr. Swartz, evidently. He also apparently had no interest in making his case a court fight to give his causes a public airing, which would doubtless have happened had he gone to trial.

As for his suicide, I don't always agree with the rubric that suicide is "the coward's way out," but in this case, that judgment seems hard to argue with. Aaron Swartz was a bold Robin Hood of the Information Superhighway, until it appeared that he might have to suffer a bit for his actions. Then, he decided to take himself off the stage. I am not impressed. Let the curtain fall, without applause.

(no subject)

Date: 2013-02-01 06:04 am (UTC)
calimac: (Default)
From: [personal profile] calimac
If those parenthetical statements in your 3rd paragraph are to be taken as the definitions of Burglary and Theft, then Swartz committed neither of them.

Re: sinister_sigils

Date: 2013-02-02 06:22 am (UTC)
calimac: (Default)
From: [personal profile] calimac
Well, your definition of burglary includes the requirement, "entering the premises of another without the others' consent," but you also write that "his basic access wasn't unlawful." So he didn't enter their premises without their consent. If these facts are true, he didn't commit burglary. If, on the other hand, the definition is condensed for simplification, you would have done better to pick a condensation that didn't contradict your argument.

Your definition of theft includes the requirement, "with intent to deprive them of the possession of it," "it" being "the property of another." But since he did not deprive them of it, nor did he intend to, it is by that definition not theft.

One could argue, and in fact you do, that it's as bad as theft, but it's not the same thing. This is a mistake that everybody defending your position takes. Equating it with making off with a physical item, which most such writers do, is simply unconvincing. (I speak not of the legal classification, which is a technical matter unconnected with logic or morality. A conspirator with a murderer may get the same legal charge as the man who fired the gun, but only a copyright hound would attempt to claim that they logically or morally did the same thing.)

However, when you try to make the moral case, problems crop up. Is depriving the owner of future income really the same as stealing? If I were to prove that some articles on JSTOR were scientifically fraudulent, their scientific value would plummet and JSTOR would cease making much money off of them. I would have deprived JSTOR of future income. Is that stealing?

Also, don't quote Shylock as a moral authority. Shylock is not meant to be one of Shakespeare's morally unimpeachable characters.

(no subject)

Date: 2013-02-02 06:40 am (UTC)
calimac: (Default)
From: [personal profile] calimac
In a larger sense, however, you have a point. It didn't strike me until reading your screed that the people I've seen most loudly defending Swartz are the same people whom I've elsewhere called "a gang of rampaging fan-fiction-writing thugs," who hold a monstrous sense of entitlement over others' fictional creations, and have actually gone so far as to bully and terrorize any authors who object to having their works taken over in public.

They're not defending Swartz because he was legally persecuted beyond his deserts, although he may have been. They're not defending him because JSTOR's pricing is extortionate, although perhaps it is. They're defending him because they resent the whole concept of intellectual property, and they can't see any without wanting to make off with it.

This is one of the two prevalent errors about copyright we see often today. The other is the equal and opposite error of treating intellectual property as private, real property: that once you stake your claim over a piece of intellectual territory, that concept is your private property, and your heirs', forever more, and anyone who wishes to trespass on it, by citing or alluding to it, must get your permission and pay you a fee if you should chose to impose one. That is the position of, among others, Disney, which ironically originally made its fortune by plundering the same public domain they're now trying to legislate out of existence.



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