Two Stories About One Story About the Morality of Intellectual Property
posted by David Fagundes
The PROTECT IP Act (PIPA) is a currently pending Senate bill that seeks to reduce online piracy by shutting down domestic access to foreign ‘infringing’ websites (inverted commas because there’s much dispute about what ‘infringing’ means in the context of the Act). Proponents of PIPA, primarily content industries and affiliated entities, claim that the Act is an essential bulwark against growing threats to piracy from rogue websites, especially foreign ones. Opponents of PIPA, primarily internet-freedom advocacy groups and some industry players, such as Google, respond that the Act represents a threat to internet commerce, innovation, and free speech.
One of the staunchest foes of PIPA is Demand Progress, a political advocacy group that favors privacy and internet freedom. Yesterday, the founder of Demand Progress, Aaron Swartz, was arrested and charged with an indictment in U.S. District Court for breaking into MIT’s computer network and illegally downloading information from the internet archive JSTOR. These charges are no joke—they could carry a penalty of up to 35 years in prison and fines of up to $1 million.
What I found most interesting about the news reports about Swartz’ arrest was not the details of these reports (given that only a complaint has been filed, it’s a bit early to have a fully formed opinion on the strength of or motivation behind the federal government’s charges), but rather the strikingly different tenor of the news reports themselves.
This account from Politico.com paints Swartz and the charges against him in a sinister light. This account from ArsTechnica.com, by contrast, portrays Swartz as a hero, and the charges against him as “bizarre”. I say more about these two very different accounts of Aaron Swartz’ arrest, and what the difference between them means for the morality of and social norms surrounding intellectual property, below the fold.
Politico’s version of these events (“Copyright Bill Foe Charged in Theft”) reads like it was dictated by the Justice Department. It accuses Swartz of “theft” in the first paragraph, and goes on to feature a money quote from U.S. Attorney Carmen Ortiz: “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away.” Swartz’ substantial accomplishments as an internet prodigy, the possible internet-freedom-related motives for his conduct, and Demand Progress’ opinion of the charges, get brief and limited billing only late in the piece.
By contrast, ArsTechnica’s version of the same events (“Former Reditt Co-Owner Arrested for Excessive JSTOR Downloads”) reads like an encomium to a young freedom fighter wrongly accused by an overzealous government. The piece leads off by referring to Swartz as a “24-year-old wunderkind,” and emphasizes that he co-created both the RSS specification and co-owned the site Reddit before his 20th birthday. Rather than characterizing Swartz’ conduct as “theft”, the piece gives a careful (and often critical) factual account of his making unauthorized downloads from JSTOR based on the complaint. The U.S. Attorney is nowhere to be heard, but Demand Progress’ criticism of the charges (that the arrest is like “trying to put someone in jail for allegedly checking too many books out of the library”) is featured prominently.
Each article’s rhetorical posturing pushes it to use inapt and misleading analogies. Politico’s repeated invocation of the term “theft” doesn’t come from the charges themselves (which are mostly about fraud, with one charge of unlawfully obtaining information from a computer), but rather from the U.S. Attorney’s equivalence between physical and intellectual property—“Stealing is stealing.” But despite the surface allure of this comparison, as a practical matter, unlawful acquisitions operate very differently in physical and virtual spaces. If you steal my car, you deprive me of my means to drive entirely. But if you copy my protected work of authorship without authorization, you don’t deprive me of my capacity to use and enjoy the work, you simply deprive me of possible royalties or license fees for unauthorized use(s).
Each side’s rhetorical posturing is clearly not to be taken seriously in a denotative sense. But that’s not to say that this rhetoric doesn’t matter. The Swartz arrest is just one in a series of episodes that emblematize the growing rift between content industries (who push for, and usually get, legislation expanding and protecting their rights) and groups concerned about internet freedom (who almost always manage to stay a step ahead of attempts by industry and government to create free access to content). Part of this rift is a war of words—are the Aaron Swartzes of the world dirty thieves or valiant freedom fighters?—but this war of words affects social norms about the morality of intellectual property. However much government and industry may win legislative battles, these wins may be hollow if they don’t convince the general population that infringement (or, in the Swartz case, other information fraud crimes) are morally important.
Hence my frustration with each of these narratives of the Swartz case. It’s impossible to get a complete sense of the content and context of Swartz’ actions, or the possible social costs of those actions, without reading both pieces together, and this strikes me as a concerning shortfall of each of them. The media outlet whose coverage I found most satisfying of this episode was actually in the Boston Globe, which presented a responsible, balanced, and accurate account of the matter. In this case so emblematic of the digital age, it’s more than a little ironic that the best coverage may be found in a stalwart of the old media regime.