Monday, January 14, 2013

Carmen Ortiz did not kill Aaron Swartz

It is no exaggeration to say that the internet community was sent reeling Friday with the news that Aaron Swartz, an internet entrepreneur, developer, and activist, had hanged himself in his Brooklyn apartment.  Swartz, 26, was well known as an early co-owner of Reddit, a co-developer of RSS, an anti-SOPA/PIPA activist, and a strong advocate of free electronic access to information.

The prevailing thought, as far as I can determine, was that Swartz committed suicide because he was despondent at the fact that he was unfairly facing federal criminal charges that would potentially put him in prison for decades.  Those charges arose from Swartz's alleged use of unauthorized access to acquire, at no cost, a substantial portion of the contents of JSTOR, a database of academic journals that charges academic libraries large subscription fees, with the intent to distribute those articles via file-sharing networks.  The U.S. Attorney for the District of Massachusetts, Carmen Ortiz, said of prosecuting Swartz that "stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars."

Swartz was charged with violating the Computer Fraud and Abuse Act, a 1984 statute that criminalizes, among other things, unauthorized access (or exceeding authorized access) of a computer, as long as that computer is connected to a public network such as the Internet.

I don't doubt that the federal government was looking to make an example out of Swartz.  Speaking as someone whose job it is to enforce intellectual property rights, I have used that approach in the past.  Coming down hard on one operator to make a point to those who would emulate him is an effective way of reducing piracy.  I don't find there to be anything inherently wrong with that. And there are few higher-profile targets than Swartz was.

Suicide is a sad thing. It's unfortunate that Aaron Swartz chose that path.  Sometimes depression fools people into doing anything to end the pain. Despite all of his resources, he didn't seem to be able to ask for enough help.

But he is not dead because of federal charges. Carmen Ortiz did not kill him.

I disagree with the position that Aaron Swartz has articulated regarding freedom of access to information.  At its heart, I find his position to be an excuse to enjoy the fruit of others' labors. Suppose you owned a piece of (real) property that was a particularly pleasant place to be, and suppose you paid a lot of money to acquire that property and to build a house there.  And then someone like Aaron Swartz comes along and says that even though the property belongs to you, everyone who wants to spend time there should be able to come onto your property and use it as they want.

Would you be upset at that?  I know I would.

JSTOR offers "free" access to its subscribers--free in the sense that there are no predetermined restrictions on the scope and content of what its subscribers may access. But JSTOR exists for a specific purpose that its creators determined:  to provide libraries and institutions with easier, less expensive access to journals than would be possible if each library had to purchase its own subscriptions to those journals.  It is an arrangement to which all of the stakeholders have agreed, including the journals that own the content.

Swartz's unilateral decision was to breach that agreement, to abuse an opportunity for access to obtain as much of the database as he could--much more than he needed for research or educational purposes--and to make that information available to the public for free.  I am struggling to find a word to describe that activity that is not a synonym for "theft."  It is not unfair to prosecute someone for theft that they essentially admitted committing, even if they disagree that it was theft.  And as much as I might like to have free and unfettered access to academic journals--or, as is certainly more prevalent, to the latest Hollywood movies and television programs--the reality is that the cost of accessing these things helps to compensate the people who created them and the people who create the access.  They are performing a valuable social good, and they should be compensated according to the demand for what they make.  Stealing short-circuits that process and eventually deprives us all of that good.

If you can't wrap your head around Swartz's JSTOR problem, here's an alternative that's a bit simpler.  I pay Netflix $8 a month for the right to access as much of their database of movies and television as I'd like to watch.  But suppose that instead of accessing a reasonable amount for my personal use, I continuously download material from Netflix's database and capture it, so that I can make it available to anyone who wanted it for free.  If that were an OK arrangement, how long do you think Netflix would stay in business?  Do you think they would be able to pay for the original material they make?  Maybe we could do without Lilyhammer, but as a fan of Arrested Development I would be more than a little upset.

By all accounts, Aaron Swartz wasn't a bad guy. He was a leading-edge innovator. He was off-the-charts smart. He was passionate about his causes. He was a good guy who did a bad thing.  That meant he might have had to spend some time in jail.  If he killed himself because he couldn't face jail, that's on him, not on the people who were doing their jobs according to the law.

1 comment:

  1. She must pay for blood with blood.