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Two Stories About One Story About the Morality of Intellectual Property

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9 Responses

  1. PrometheeFeu says:

    It must be noted that after discussing the incident with Aaron, JSTOR decided that there was nothing for them to worry about. My understanding of the facts is that he got into a room where he was allowed to be and used computers he was allowed to use in order to access information he was allowed to access. The only thing that he violated was the speed and volume at which the download was authorized. While that is most likely a violation of the TOS of JSTOR and MIT, it hardly can be characterized as theft as U.S. Attorney Carmen Ortiz tries to do.

    To be fair, I’m a pretty strong opponent of copyright laws and government-granted monopolies in general, so I am somewhat biased.

  2. Rob Hunter says:

    My understanding (gleaned, I will admit, from Ars and similar sites), like PrometheeFeu’s, is that Swartz has been charged with theft and breaking and entering — but not with violating copyright, despite the fact that he violated JSTOR’s ToS. It seems like the Justice Department is interested in preserving a particular cultural logic — the view that unauthorized access of information is tantamount to “theft” just like stealing physical property — or, as the U.S. Attorney tendentiously put it, “stealing is stealing.” The heavily moralized tone of the indictment and the stories about it in outlets like Politico is weird and rather strained.

  3. David Fagundes says:

    Thanks for the comments. PrometheeFeu, I think JSTOR has made a public statement that they did not ask that charges be filed against Swartz. They appear to have originally suspected that Swartz’ aim in downloading their files was to make them available for free online elsewhere, which seems like a plausible concern, but it’s not clear to me whether they still have this concern.

    In terms of the legality of Swartz’ entering the room where he accessed the computers, I recall from the complaint (around paragraph 28) that he hid his face when he was entering and leaving the room, which suggests but does not prove that he did not have valid access to the room (it could be that he did have access but wanted to conceal his identity for other reasons).

    In terms of the “theft” issue, what bothers me most about the US Attorney’s invocation of this is that unauthorized access to and copying of computer files is very descriptively different than traditional theft of physical property because it does not deprive the owner of use of the accessed/copied content. Hence it’s not just that what Swartz did was not “theft,” but that the idea of “theft” from common law physical property may not be a coherent matrix for thinking about intellectual property torts.

    Rob, you’re right about the scope of the complaint. As I mention in the post, the charges against Swartz include fraud and unauthorized access to information on a computer, but they do not include copyright infringement. For that reason, I’ve modified the title of the post slightly to use the term “intellectual property” rather than “copyright,” which I hope clears up any confusion.

    But I think it has to be right that the US Attorney is attempting to create a simple moral equivalence between physical property torts and intellectual property torts. I can see why she’d want to do this as a strategic matter, but I’m concerned that mainline media outlets are picking up on and then uncritically repeating this rhetoric.

  4. Rob Hunter says:

    @ David’s comment #3

    “I can see why she’d want to do this as a strategic matter, but I’m concerned that mainline media outlets are picking up on and then uncritically repeating this rhetoric.”

    I assume that encouraging media outlets to repeat the (in my view, mistaken) claim that violations of copyright are tortious in the same way that physical theft is tortious is part and parcel of Ortiz’s strategy. In general, proponents of restrictive IP laws have shown a marked preference for framing violations of those laws not merely as torts but as harms in a moral sense.

  5. Justin says:

    One quick correction:

    Swartz didn’t create or co-create Reddit. He did found Infogami, and joined Reddit six months after it was created to attempt to merge Infogami and Reddit, but was ultimately fired. You’ll notice that the ArsTechnica article doesn’t say he created the site, just that he owned a piece of the company when it was sold to Conde Nast, which is true.

  6. @Rob Hunter – Swartz has not been charged with theft or breaking and entering. Those would be minor state-level crimes in any case, and this is a Federal indictment. Just a speculation, they probably didn’t go for copyright infringement because *criminal* copyright infringement against the academic/”fair use” defense likely would be a loser and generate a huge backlash.

    @David Fagundes – “But I think it has to be right that the US Attorney is attempting to create a simple moral equivalence between physical property torts and intellectual property torts. I can see why she’d want to do this as a strategic matter, but I’m concerned that mainline media outlets are picking up on and then uncritically repeating this rhetoric”

    Welcome to the party. Glad to have you. You are completely correct about what the US Attorney is doing. This happens EVERY SINGLE TIME these information business model issues come up, going back for many, many years.

    Oh, regarding narratives, the New Media is that everyone is a partisan ranter out to get attention for ad clicks and the like, and it’s up to YOU to read all the rants and “triangulate”. Otherwise, it’s said to be lecturing, elitism, out-of-touch, lazy, etc. etc. Many of the web-evangelists will be glad to explain this to you.

    [Disclaimer/Disclosure - I'm not a lawyer, but I've done policy work around these sorts of issues].

  7. PrometheeFeu says:

    @David Fagundes: Yes, after some further reading it is a bit unclear whether he had access to that particular room. Sorry for the confusion.

    I do share your concern regarding the conflation of theft and infringement of intellectual property rights. Furthermore, given the position of media companies as large producers of intellectual property, there is an incentive for them to conflate the two and not rectify such errors. I do think it is irresponsible (not to mention unethical) for the US Attorney to make such obviously false statements. But as Seth said, that is unfortunately par for the course in such cases.

    As for your complaint regarding the partisan bias of both of these sources, I actually like it that way. I think such partisan bias has always been in the media. It’s just that it is now more pronounced and especially more obvious. Overall, I much prefer knowing clearly that a paper is privileging one side of the story rather than having to guess what side of the story a paper is presenting.

  8. David Fagundes says:

    @Justin: I re-read the article and it does say only that Swartz co-owned Reddit upon the site’s sale to Conde Nast. I’ve revised the post to fix that, and thanks for the correction.

    @Seth Finklestein: Thanks for the words of welcome, I do love a good party. But I’ve been at this one for a while, actually. See 94 Minn L Rev 652 (2010) (arguing that copyright maximalists use flawed analogies between physical and intellectual property to push an owners-rights agenda).

    @PrometheeFeu & Rob Hunter: Your comments have caused me to think of my post primarily as a critique of the media. I can understand why the US Attorney would want to use analogies to physical property. Although I don’t buy the analogy, neither do I think it lacks any rational basis, so Ortiz is within her professional role as a zealous advocate to invoke it in order to advocate on behalf of her client.

    It’s really the media’s uncritical reception and repetition of these analogies that bothers me. I am more concerned about overtly partisan media than some others might be for a pair of reasons.

    First, not all media outlets make clear their biases. A non-specialist who found Politico’s or ArsTechnica’s piece via a Google search would likely not know that each site has an (overt or covert) agenda, so they might wrongly take either angle as the unadorned truth, and that could lead to a less informed public.

    Second, psychologists have shown that when people are exposed only to one idea, this tends to harden their preexisting beliefs, and possibly also cause those beliefs to become more extreme. For a popular take on this literature, see Sunstein, Why Societies Need Dissent. So I think a balanced piece like the Globe’s does more for creating an informed citizenry because it forces people to read both sides of the issue, rather than allowing them to simply satisfy their preexisting beliefs by reading the view they’re already inclined to agree with.

    But thanks, all, for reading and for the good comments and discussion.

  9. PrometheeFeu says:

    @David Fagundes:
    I must admit that I am unfamiliar with the cultural and historical background of US Attorneys. I am French where the “procureur” is deemed to defend the interest of society. The interests of society as a whole would not be served by pushing such a flawed analogy even if it facilitates a conviction. Even though this analogy is not without rational basis, it has been challenged on numerous occasion and practitioners of law should be expected to use legal language in an accurate way. Theft after all has a precise legal definition which is quite different from what Mr. Schwartz is accused of. Again, this may be my cultural bias.

    I just have a hard time blaming the media for their bias when their own perceived interests are so intertwined with the issue. I think the problem is that copyright is to most people a self-evident institution. (Most people’s reaction when I bring up my position on the subject is surprise at the whole idea that IPR can be questioned. Most of them don’t think there is anything to talk about except perhaps the limits on enforcement.) As such, I find it unsurprising if unfortunate that the media would oppose IPR violations the same way they would oppose murder, rape or theft. I think before we can see the media challenge the likes of this US Attorney, there will need to be significant changes in the social perception of IPR.

    I see your point regarding the fact that Ars Technica’s and Politico’s bias are not necessarily obvious to a first time casual reader. However, I do think the biases of Ars Technica (I don’t read Politico and so cannot speak to that) would become apparent quite rapidly to a repeat reader. I also agree that reading a single point of view is not beneficial. However, when all you read is the newspaper of record, you can easily be tricked into believing that you see both sides of the issue when really you are seeing what the newspaper of record considers to be the valid sides. When you read Ars Technica for a while, there is no doubt that they are not telling you everything and you can then search for opposing view-points.

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