Copyright

IP ideologies and the Swartz suicide


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I had never heard about Aaron Swartz until Swaraj’s post below about his life and suicide. The internet is now abuzz with news reports about Swartz’s suicide, his ‘heroism’ and ‘bullying’ by the prosecutors of the U.S. Government. While not everybody is saying it in so many words, the overwhelming trend appears to blame the federal government prosecution of Swartz for his suicide. This, despite the fact there is no conclusive proof of such a link. Swartz is known to have written on his blog about being depressed but it is not clear whether he was clinically diagnosed as being depressed. Jumping to conclusions or even hinting at conclusions without concrete information is of extreme disservice to his grieving family who are grappling with this tragedy. 
More importantly, I have an uneasy feeling that Swartz’s suicide is going to be used as the war-cry towards an even more extreme polarization of the already polarized debate over the standard of protection and dissemination of intellectual property over the internet. 
We saw something similar happen when Swartz was first arrested for illegally hacking into MIT and JSTOR’s computer systems in 2011. The best piece, by David Fagundes, about the polarized reporting over his arrest can be found here on ‘Concurring Opinions’, which is available over here. Contrasting the reportage of two different internet websites, on Swartz’s arrest, the author states that “Each article’s rhetorical posturing pushes it to use inapt and misleading analogies”. 
At the time, most of the ultra-hacktivist websites made out Swartz’s only crime to be downloading academic articles from JSTOR for further academic dissemination without profiteering from the same. What these websites however omit to mention is the remaining charges mentioned in the indictment. 
According to the indictment, available over here, Swartz was arrested only after he made repeated attempts to hack into the computer networks of both MIT and JSTOR and more importantly after he physically broke into a secured room on the MIT campus to access MIT’s computer network, an act which was caught on a security camera. 
Swartz’s friends from the Demand Progress alliance had then told the media that both MIT and JSTOR had asked the Government to not prosecute Swartz but according to the Boston Globe, this claim was contradicted at least by JSTOR. According to the paper “But Heidi McGregor, vice president of communications for JSTOR, said her agency never told the government not to prosecute Swartz. She said her company’s focus was on “making sure the data was secure and the data was not disseminated, so we were happy we got that result.’’ McGregor said she could not comment on the federal government’s decision to bring charges.” 
And about the claim that Swartz never meant to profit from the distribution of JSTOR’s article, that does not seem relevant because the issue over here is not whether Swartz would have made profit but whether JSTOR would have suffered by Swartz’s distribution of their articles. And yes, if Swartz had distributed (he was stopped before he could do it) the JSTOR articles for free, JSTOR would have probably been affected because it survived on subscription fees to access its articles. 
Swartz was clearly a genius and making information publicly available was a noble goal but we live in a world of laws and the means matter much as the ends. Are hacking into the computer networks of a non-profit organization and trespassing into private property the right way to accomplish this objective? Regardless of ideology, reporting and the actual reasons for Swartz’s untimely suicide, his death should not be glorified or demonized by closeted ideologies looking to further propagate their cause. 
We must mourn but we must not forget that there is no glory in death by suicide.
Prashant Reddy

Prashant Reddy

T. Prashant Reddy graduated from the National Law School of India University, Bangalore, with a B.A.LLB (Hons.) degree in 2008. He later graduated with a LLM degree (Law, Science & Technology) from the Stanford Law School in 2013. Prashant has worked with law firms in Delhi and in academia in India and Singapore. He is also co-author of the book Create, Copy, Disrupt: India's Intellectual Property Dilemmas (OUP).

14 comments.

  1. AvatarSwaraj Paul Barooah

    Hi Prashant, Thanks for writing this piece. A bit of agreement, though in a different tone, and a bit of a clarification about my own piece.

    I think you’re right about the likelihood that Swartz’s suicide will be used as a push for a further polarization. And in my opinion, this is a positive development. I think it’s quite ridiculous that certain digital freedoms are negotiable at all.

    Coming to my clarification.
    There also seems to be no question that Swartz deserved some appropriate punishment. But 50 years of jail time as a felon and $4million fine? Not to mention the million he unsuccessfully spent over 18 months negotiating (if i recall correctly) to not be called a felon. Throw in some depression to the harassment, and see what comes out of it.

    Had the laws been as tight and strict in other areas, especially in other more hard hitting areas (eg bankers), it might have been understandable – zero tolerance. But this is far from the case. Information laws have taken to catering to certain interests more than others. That’s why we see that damages can reach up to $150,000 for a downloaded song. Or even that Copyright can last as long as it does.

    Like I concluded in my piece, there’s no question that incentives need to be protected. But allowing laws/govts to pander to industry interests (at the cost of other stakeholders) in the name of protecting incentives is ill advised. And allowing this power balance to then be used to harass those fighting against it is something that needs to be fought tooth and nail.

    In other words. There’s one aspect of punishing appropriately for what he’s done. And another aspect of unnecessary harassment. Both aspects were problematic in this case.

    Regarding his actual involvement in the crimes, I don’t know if you’ll agree this is neutral, but it seems so to me. http://unhandled.com/2013/01/12/the-truth-about-aaron-swartzs-crime/

    Reply
  2. AvatarPrashant Reddy

    Hi Swaraj,

    Thanks for your comment.

    I don’t think a suicide should be used to polarize a debate – it tends to stir too much passion at the price of reason.

    About the sentencing and $4 million dollar fine, I’m not very familiar with American criminal law but I don’t think prosecutors can make any demands on sentencing until the trial concludes. Even presuming that Swartz had been found guilty, American judges have considerable discretion in sentencing matters and I doubt whether any American judge, even one sitting in Texas, would have actually sentenced Swartz to 50 years of jail time.

    As for the $4 million dollar fine, I don’t know where that figure is coming from but I would be surprised if American criminal law prescribed such high criminal penalties for hacking. I know that American civil law does have some incredibly high statutory fines for copyright infringement but the case at hand was a criminal case filed by the government and not a civil suit filed by JSTOR. Even in civil cases, most IP owners have been very, very circumspect in demanding unrealistic damages from individual litigants. Those statutory damages are used more frequently against companies.

    But most importantly, I don’t know how we are drawing this link between his prosecution and his suicide – where are you getting this information from? Lessig’s blog? Lessig is obviously very upset because he knew Swartz and I would be careful of believing as the gospel truth anything that he may have written while grieving his friend’s death. I can only imagine how upset he must be right now.

    As for the link you provided me with at the end of your post, I doubt whether an expert witness scheduled to depose in Swartz’s defence could ever be neutral.

    Prashant

    Reply
  3. AvatarSwaraj Paul Barooah

    Hi Prashant,

    I agree with you that he probably wouldn’t have gotten anywhere close to that amount of time or fine. But the threat of the feds on him had apparently been haunting him since his first interaction with them over the PACER debacle. (I think this was from the NYT article on him) (Also, this article written in Sept. http://arstechnica.com/tech-policy/2012/09/feds-go-overboard-in-prosecuting-information-activist/)

    Of course, now, there’s no concrete way of knowing why, since it doesn’t appear that he’s left a note. I’ll admit, I’m just going based on several articles by his friends and colleagues, as well as posts from my facebook feed from those who’ve known him.

    They all talk about / hint at the feds having a bone to pick with him due to his PACER debacle (freeing up public domain documents that the govt was charging for). I admit I am drawing the connection between this ‘harassment’ and his act of suicide and that there isn’t any concrete evidence of it that I have found. However, given the circumstances, given the likely combination it had with his talked about depression, I think it’s a safe guess to say his suicide yesterday would not have happened if the govt had not been trying so hard to find him guilty, if they had not been so clearly nursing a grudge against him.

    But yes, I’ll admit that drawing this connection is guesswork on my part.

    Reply
  4. AvatarRaj

    Agree with Swaraj here. Clearly, Aaron did something that he should not have done but to track him down like he was 9/11 terrorist makes no sense. And at the same time, fat cats on Wall street who launder billions of dollors of public money go scot-free. (http://www.aljazeera.com/programmes/peopleandpower/2012/09/2012912134638276495.html) Where is the sense of proportion?

    On top of this, it seems he was also not allowed to ask his friends for financial help. I don’t know how this works but if true, it’s harassment. “his wealth [was] bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge.”
    http://m.guardian.co.uk/commentisfree/2013/jan/12/aaron-swartz-heroism-suicide1?CMP=twt_gu

    It would not be a stretch of imagination to see that the whole approach of Aaron – his opposition to SOPA and copyright – was something that the govt took personally, “To make an example out of him.” I think the US is turning into an autocratic/fascist regime very fast.

    Reply
  5. AvatarPrashant Reddy

    Hi Raj,

    Like I told Swaraj earlier, drawing these links between his prosecution and his suicide appears to be tenuous at the best, when Swartz himself wrote about being depressed and suicidal, even prior to the prosecution.

    Further, the U.S. was hardly prosecuting him like a 9-11 terrorist. The U.S. Govt. has been routinely prosecuting hackers since Operation Sundevil in the nineties. What is the big deal about it? This talk about the prosecution being in retaliation for his opposition to SOPA and copyright seems to be an over-exaggeration. From what I understand, U.S. Attorneys are usually very independent of the U.S. Govt. precisely to avoid vindictive prosecution by a government officer.

    The charges against Swartz were also quite routine, prosecutors always try to get broad indictments which they can use as a bargaining chip in plea bargains.

    If arresting a person and giving him a fair trial for an alleged violation of the law, is seen as fascist and autocratic, we are headed for choppy waters.

    Prashant

    Reply
  6. AvatarSPoK

    Reason is good, Prashant, but a little passion doesn’t hurt either. A 35 year sentence and a million dollar fine (right, Swaraj?) for a Swartz certainly doesn’t sound reasonable to me. As much as I stand for reason, sometimes, I realize that reason is an illusion created by special interests. I like to believe that passion leads me to this realization. To put this in more moderate terms, we need to stop thinking about the law, and start thinking about the correctness of the legal narrative.

    Without sounding overly dramatic, let me quote the Merovingian from the Matrix Reloaded, when he makes these astute observations, IMHO:

    Merovingian: What is the reason? Soon the why and the reason are gone and all that matters is the feeling. This is the nature of the universe. We struggle against it, we fight to deny it; but it is of course a lie. Beneath our poised appearance we are completely out of control.

    Merovingian: Choice is an illusion created between those with power and those without.

    SPoK.

    Reply
  7. AvatarPrashant Reddy

    SPoK,

    Passion is good but only when combined with reason but to use Swartz’s suicide as the rallying point for the hacktvist community, when it is not even clear why he took his own life, would be a demonstration of passion without reason.

    Over the last few years we have witnessed the birth of an ultra hacktivist movement, which like all extremist groups strongly believes in the credo of their way or the highway. And too many young people, who have never created a shred of knowledge their entire life believe that they have a birthright to publicly distribute other people’s knowledge without even the courtesy of asking them.

    I think such a mindset sets a bad tone for the future debate.

    Cheers,
    Prashant

    Reply
  8. AvatarSwaraj Paul Barooah

    Hi Prashant, First a clarification. I haven’t seen official documents, but I’m seeing amount of jail time that he could have had ranging from 35 years and $1million – to 50 years and $4million. I apologize for not having the actual number. But for the purpose of my post, both sets of numbers serve the same purpose.

    I think the basic reasons that most people, including me, are viewing this as an ‘attack’ is this following sequence:

    a. He essentially violated JSTOR’s TOS, broke into MIT’s networks and ‘broke into’ a storeroom (which apparently was also used by a homeless man to store clothes. I only have articles online by his friends as a source for this, in case you want to discount it)
    b. JSTOR received his hard disk, some promises and dropped all civil charges.
    c. The government decided to continue and increase charges from 4 counts to 13 counts.
    d. Given that JSTOR had settled their issue, there was no real ‘victim’ here.
    e. The gov’t does not deal with all alleged ‘criminals’ in the same way that they dealt with him. MIT students routinely break laws like this. I’m not saying it’s “okay”. I’m saying it happens, but the feds choose who they want to prosecute. And yes, this is certainly legal. On a problematic note, the biggest crimes apparently can also be lobbied into legality. So ‘legal’ unfortunately does not automatically mean normative or just.
    f. Given this, his case could have been pursued either out of random chance, or because they picked him out. The seriousness with which they’ve piled up the charges despite the the lack of any real harm, points to they picking him out to teach him a lesson.

    As secondary (and admittedly discountable) notes – MIT has launched an inquiry into this to see why they did not drop charges as well at the time. And his family’s official statement states that they blame the govt for harassing him.

    It seems well within the realm of legality. But fairness and justice has been thrown to the wind. And for someone who was already dressed down by the fbi for his involvement in what WAS legal (pacer – recap), and someone who saw the uber-aggressive pursuance by the US govt of other ‘information activists’ (not equating their actions) not only in US but also around the world, I think it’s a natural reaction for anyone to fear the actions that the US govt could take under the guise of legal action / throwing everything and seeing what sticks.

    And for someone to live in fear of unjust actions, whether legal or not, by his government is fundamentally wrong.

    And as a separate note, I was under the impression that US DA offices were very political. I don’t know enough and could be totally wrong about that though.

    (While popularity of a cause is certainly never reason for it’s ‘correctness’, I’ve seen several very sharp minds including Prof Lemley share a petition asking for the Removal of the DA for overreach in Swartz’s case. Perhaps you could ask him for his reasons on why he believes this action is appropriate?).

    While I’m glad you posted this (as it made me stop and question myself – always a good thing), if you still believe it’s an exaggeration and not really a problem, then we’ll have to agree to disagree.

    Reply
  9. AvatarPrashant Reddy

    Hi Swaraj,

    I used the word exaggeration in a specific context which I reproduce below: “This talk about the prosecution being in retaliation for his opposition to SOPA and copyright seems to be an over-exaggeration.”

    Like you pointed out earlier, he wasn’t prosecuted for his earlier hacking into PACER and I would be more logically inclined to presume that the Govt. decided to mount an aggressive prosecution because it was the second time he was involved in such an incident.

    As for the chain of events, I think both of us need clarification on the exact nature of the complaint filed by JSTOR and MIT – I don’t see a U.S. Attorney going ahead with such an aggressive prosecution without involvement of the complainants – its the best way to sink your own case.

    If Prof. Lemley has signed onto a petition calling for the removal of a US Attorney, I’m presuming he has information on Swartz’s suicide and prosecution, which both of us are not privy too. I don’t have his class this quarter but if I do run into him I will certainly ask him why he asked for a removal of the U.S. Attorney involved in the case.

    Prashant

    Reply
  10. AvatarPrashant Reddy

    Hi Swaraj,

    I thought I would share this AP article with you since it has some information on the case: http://www.usatoday.com/story/tech/2013/01/13/swartz-death-fuels-debate-over-computer-crime/1831721/

    Apparently the prosecutor was offering Swartz a 7 year sentence – was it too much? Probably, over-ambitious given the strength of his defence.

    AP also shed’s some light on the role of JSTOR and MIT – apparently JSTOR asked for the charges to be dropped, while MIT was the one which pressed for federal charges in the first place.

    Here’s what I don’t understand and this maybe similar to what you state in your previous comment:

    1. JSTOR asks for charges to be dropped;
    2. MIT wants charges to be pressed because it was the MIT computer network that was used for the alleged crime.
    3. Swartz’s defense claims that there was no hacking because MIT’s network was an incredibly open network;
    4. JSTOR claims that Swartz had a right to download the articles and that he had apologized and paid them for any damages;
    5. The above defence of MIT being an open network and JSTOR not objecting to the download per se, would have made any successful prosecution, difficult if not impossible.
    5. This fits into your point of the prosecution being over-zealous.
    6. Swartz was a smart guy, his lawyers must have explained to him that he would most probably be acquitted as innocent.
    7. Why would he then commit suicide?

    It just doesn’t make sense to me – going by both our explanations – this guy would not have ended up in prison for any significant time – I just don’t see a federal jury sending a 26 year old kid to jail for 7 years when the main victim, JSTOR, was going to testify that they did not have any issue any longer with Swartz.

    I just find it extremely difficult to believe that a chap as smart as Swartz would commit suicide due to pressure of a possible conviction – of course, I don’t know what was going on in his head and I wouldn’t presume to know so.

    Prashant

    Reply
  11. AvatarAnonymous

    Hi, I think the tenor of this post may have missed something important here. Information – who owns it, who has access and how it is obtained is and will increasingly become absolutely central to everything, everywhere. It is what links Jodie Foster’s ‘goofy’ speech at the Golden Globes and Aaron Schwartz’s Guerilla Manifesto. His battle is the ideological battle of our times. Schwartz made ‘free’ relevant and radical again. So it beggars belief that the prosecution’s stance did not come in more vocal critique in Schwartz’s lifetime. This is not about copyright but power and intimidation.

    For me Lessig captured it best when he said on his blog that ‘we are incredibly sorry to have let you down’.

    Reply
  12. AvatarSwaraj Paul Barooah

    Thanks for the article Prashant. Had some information that I hadn’t come across.

    You’re right, things just don’t seem to add up. Wish there was a way of knowing for certain what went on in his head.. Whether it was the stress from the year long negotiating + fears of even 7 years jail time + pre-existing depression, or whether it was another reason altogether…

    Reply
  13. AvatarRaj

    Hi Prashant and Swaraj,

    It would not be correct to assume that the lawsuit was the direct cause of the suicide but it’s clear that it added to his depression. Even to defend the lawsuit, Aaron would have required $1.5 million, not an easy sum to get. The irony is JSTOR made the articles public last week.

    “under Massachusetts law, the potential sentence that Swartz faced was more than the maximum sentence given to a rapist who has subdued his victim with a threat of physical force, namely 20 years.”

    http://translationexercises.wordpress.com/2013/01/14/what-a-small-world-carmen-ortiz-aaron-swartz-and-tarek-mehanna/

    My comment about US being autocratic was taking into account the bigger picture – SOPA, Obama’s war on whistleblowers but that’s a different topic.

    Reply
  14. AvatarB Prashant Kumar

    Knowing about the huge number of known (and most of them yet occult) conspiracy theories in US, I just hope he was not Murdered in a CIA type operation. For a fighter like him, whether struggling depression or not, Suicide really seems bizarre for me.

    Chk this: http://www.beforeyoutakethatpill.com/index.php/2011/12/01/rebecca-zahau-ties-hands-behind-back-leaps-off-balcony-hangs-self-yeah-right/

    Anyways, atleast his ‘death’ has sparked several protests and hope they all conclude with some positive advancements in the fight against the hideous policies of governments curbing and commercializing the privacy of the public.
    Hope measures like the following get some good attention:
    http://www.filmsforaction.org/takeaction/in_memory_of_aaron_swartz_here_are_14_ways_to_fight_back_against_the_intellectual_property_racket/

    Reply

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