Blog Ipsa Loquitur

Published on under Legal Theory

The Awl has a piece on the Aaron Swartz saga that I genuinely like, but has a few paragraphs that deserve some clarification.

It’s been widely asserted that Swartz intended to distribute the material he downloaded from JSTOR to the public, e.g. by posting the lot onto a file-sharing site like The Pirate Bay. And it’s no wonder that people are saying this, because the government’s indictment alleges it directly, but the indictment provides not a single shred of evidence to support these claims.

An explanation of criminal procedure would be helpful here. A grand jury only indicts someone for a crime after hearing evidence of the defendant’s guilt. The contents of the indictment do not represent the sum total of the evidence against the defendant; it represents the suspicions of the grand jury after having heard evidence against the defendant. The indictment’s allowed to be sparse.

I agree entirely with the ridicule of the U.S. Attorney Ortiz’s platitudes on stealing. Swartz wasn’t stealing, no matter how you slice it. Heck, he’s not even being charged with copyright infringement, which is usually what folks conflate with stealing. Neither hacking nor copying is stealing.

on pressing charges

The Awl article muses about why Swartz is still in hot water, as JSTOR doesn’t want to press charges. Pressing charges is something that happens on TV; that JSTOR and Swartz have kissed and made up already does not make Swartz a free man. In real life, when you’re a victim of a crime, you call the police. The police take your statement, write a report of their investigation, and ask you to sign a complaint – this is usually what folks mean by “pressing charges.” Obviously, the police can turn their report over to the local District Attorney’s office regardless of whether the victim signs a complaint. How else would anyone ever get charged for murder?

For federal crimes, it’s a little different. But take that last paragraph, replace “police” with “FBI/DEA/etc” and District Attorney with U.S. Attorney, and you have a reasonably accurate description of how federal crimes get prosecuted. The FBI doesn’t really go around asking if you’d like to press charges, generally because there are no low-stakes federal crimes.

Again, JSTOR doesn’t want to press charges, but they’re not involved in the trial. Criminal cases are between the government and the defendant. On the other hand, civil cases are between two private parties who are encouraged to settle out of court.

That being said, The Awl is absolutely correct about why the government is so interested in this relatively middling case; one of the reasons Swartz is being charged for this (even though the parties involved don’t seem to really care all that much) is that Swartz has been an agitator for years. I’m personally a fan of his work in liberating the PACER library, but he didn’t exactly endear himself to federal authorities with his quixotic work.

However, It should go without saying that prosecuting for X because you’re mad that you couldn’t prosecute for Y is not a terribly sound strategy.

on free

I sincerely love this next quote from The Awl:

But the worst misapprehension in Maxwell’s remarks is his total misunderstanding of what public domain really means. Shakespeare is “part of the shared heritage of all mankind,” too, but does that mean you can march into a Barnes & Noble and take any copy of Shakespeare that you want out of there for free? No! You have to pay Barnes & Noble and Penguin Classics or whomever for making it available to you in a form you can use, in this case a book. To fail to appreciate this point is to weaken the argument for open access by depriving it of clarity and focus.

For context, one of Swartz’s fans by the name of Maxwell uploaded 33GB of public domain documents to a file-sharing site, in the name of giving the “shared heritage of all mankind” back to its rightful owners (us) for the right price (free). This of course confuses the price you pay for the public domain content with the price you pay for accessing the public domain content.

Sure, the information is like totally free, man; but the computers that host 33GB of scanned PDFs isn’t free; the internet connection for a frillion Gb of bandwidth a month isn’t free; the electricity that keeps all those computers computing and routers routing isn’t free; the salaries of the IT folks that keep all those computers computing aren’t free.

Maxwell’s almost certainly aware of this. His response, I imagine, is something like the following. Great news for JSTOR – we can save them tons of money every month. If the public mirrors the public domain files and makes them available on peer to peer networks, we can eliminate the need for servers, industrial levels of bandwidth, and so on. Of course, the computing power required to search 33GB of non-OCR’d PDFs is nothing to sneeze at.

The Awl makes the point that the various efforts to collate, compile, and make searchable all the public domain documents are the services for which the price is charged, not the public domain documents themselves. If Maxwell had transcribed these 33GB of public domain documents himself, well, he’d have invented Project Gutenberg.

on crimes

This one is less good:

Swartz is being charged with hacker crimes, not copyright-infringement crimes, because he didn’t actually distribute any documents, plus JSTOR didn’t even want him prosecuted.

Really? For the record, you don’t have to distribute an illegal copy of something to be guilty of copyright infringement. Again, what JSTOR wants doesn’t really enter into this picture. Swartz is being charged with hacker crimes because he did things to MIT’s and JSTOR’s networks that he wasn’t supposed to do. The Philadelphia trial lawyer has a lot more experience in the legal field than I do, but I don’t think that’s why his logic is beyond me. He writes:

JSTOR already settled their claims with him. What more needs to be done here? The “criminal violation” here arises not from any social duty — like, you know, our society’s communal prohibition on murder — but rather from Swartz “exceeding the authorization” imposed by JSTOR on its servers.

I’m not sure how to take that. Only crimes as serious as murder deserve prosecution? Only crimes forbidden in ancient times deserve prosecution today? Computer crimes are silly and there ought not to be any laws governing hacking? I must presume that if the Ten Commandments had forbidden computer hacking, I wouldn’t having written this sarcastic paragraph. There’s no serious doubt that hacking is less serious than murder, but again, you don’t get off the hook for federal crimes because you managed to get a pardon from your victim.

not for sale

On the other hand, the bit about wire-defrauding JSTOR by agreeing to the terms while intending to defy them is spot on. Again, like the MySpace case, common sense seems to require we don’t make a federal crime out of clicking “I Agree” to a EULA when we don’t actually agree. I like the bit about the pecuniary gain – while I think I can imagine cases where it’s possible to commit fraud without pecuniary gain, for the purposes of EULA-based wire fraud, I’m more comfortable with a pecuniary requirement. Not that Congress or the federal judiciary consults me, but it seems like the right result.

The latter half of the article veers off into discussing the wire fraud charge, and dissecting whether or not Swartz intended to make money off his JSTOR downloads. This is a good excuse for the warm and fuzzy bits about how Swartz is a nice guy. I believe he is; he spoke at my law school and talked about his career as an activist – the photo of him and Lessig is just icing on the gravy, as far as I’m concerned. Swartz has the pedigree. I’m sure he wasn’t trying to make money.

But really, the wire fraud charge is one of the weakest ones in the indictment. It’s the hacking charges that I think he’s really screwed on. All that sneaking around MIT and breaking into their server closets puts him in a rough spot, which I’ve gone on about at length before.