16 Jan 2013

Swartz Death A Tipping Point

By Adam Brereton
The punitive use of intellectual property law against Aaron Swartz has angered many. Aggressive prosecution of ethical hackers is out of sync with community attitudes to copyright and file-sharing, reports Adam Brereton
Aaron Swartz's funeral was held today. The internet freedom activist and developer took his own life on Friday in the face of a long battle with the Massachusetts Department of Justice. Swartz was indicted in 2011 on 13 charges, including computer fraud, wire fraud, obtaining information from a protected computer, and criminal forfeiture, after he gained access to a MIT computer closet and batch downloaded "protected" articles from the academic website JSTOR.

Swartz's suicide has prompted anger and dismay among the tech community and online activists, where he was much admired for his work on Creative Commons, RSS and Reddit. Much of the commentary points out that JSTOR, who had initially mounted a civil suit for copyright infringement, had since settled with Swartz.

US Attorney Carmen Ortiz, who was spearheading the prosecution, has been accused of prosecutorial overreach and bullying, leading to Swartz's suicide. Swartz was facing a maximum penalty of around 30 years imprisonment, a sentence greater than those imposed for rape, slavery and child pornography.

This has prompted a new round of outrage about the proportionality and appropriateness of legal remedies for intellectual property infringements. The prosecution "makes no sense," Demand Progress Executive Director David Segal said. "It's like trying to put someone in jail for allegedly checking too many books out of the library."

Many in the world of web activism, hacking and intellectual property — domains which are now collapsing into one another as the state takes on the burden of enforcing IP infringements — view the Swartz case as a "tipping point".

Mark Pesce, a futurist, developer and inventor who saw Swartz as a "kindred spirit", was deeply affected by his suicide, and thinks the Department of Justice has opened a "Pandora's box".

"Prior to Saturday, I don't think that white hat hackers [ethical hackers] saw themselves as threatened by the US Department of Justice, and I think they do now. The weapons they have at their disposal are infinitely more comprehensive than any weapons the US DOJ has."

"There's bracket creep where we see hacking collapsed into terrorism," Pesce told New Matilda. "I think to be a white hat hacker is to be a political actor... I think [Swartz] became a target in much the same way that Julian Assange became a target — in different ways, through different means — but they attracted the attention of state power."

Matt Rimmer, an IP scholar at the Australian National University, is also concerned that intellectual property, once the purview of civil law, is now being "enrolled into a law and order, criminal justice, discipline and punish regime". He points to the fact "that Swartz was targeted for hacking and wire fraud rather than a traditional IP infringement action", and to the aggressive nature and language of the indictment, as indicators that "hacking laws are too broad and vague".

"To read the indictment one could be forgiven for thinking that the attorney was after the bust of a felon on The Wire," Rimmer told New Matilda. "As a scholar of intellectual property, such language really disturbs me. The confusion between property and intellectual property, the way in which a public spirit of trying to make academic articles publicly available is equated with theft, piracy and stealing seems to me quite problematic."

The punitive nature of current intellectual property laws is not restricted to the US. Activists worldwide have been campaigning against punitive international treaties, in particular SOPA, ACTA and the secretive Trans-Pacific Partnership Agreement, which seek heavy penalties for copyright infringement and extend the reach of US law enforcement agencies. Cases against UK citizen Gary McKinnon and New Zealand resident Kim Dotcom are two high-profile examples of the extent to which the US will pursue foreigners over alleged hacking or copyright crimes.

Beyond the strictly criminal, civil suits for copyright infringement also illustrate a growing disconnect between public expectations of what constitutes permissible use and sharing. Tragically, this disconnect was illustrated in a prelude to Aaron Swartz's suicide, when Men At Work flautist Greg Ham killed himself last year after a long legal battle over copyright infringement in his song "Down Under".

Men at Work were found to have breached copyright by taking a segment from the well known song "Kookaburra", written in 1934 for a Girl Guides' competition, after a question on Spicks and Specks tipped off the copyright holder Larrikin Music, now owned by a US company. Men at Work were ordered to pay 5 per cent of past and future royalties from 2002 onwards, but for Ham, who maintained he merely wanted to create something "distinctively Australian", the real punishment was to his reputation: "I'm terribly disappointed that that's the way I'm going to be remembered — for copying something," he said.

In Men at Work's unsuccessful appeal against the ruling, Justice Emmett wrote that:

"If, as I have concluded, the relevant versions of Down Under involve an infringement of copyright, many years after the death of Ms Sinclair, and enforceable at the behest of an assignee, then some of the underlying concepts of modern copyright may require rethinking."

Pesce agrees: "I think that in a pre-network era things were probably fairly functional, but in a networked era there's all of a sudden a massive desynchronisation between what the law allows and what people allow."

Research indicates that casual copyright breach is now the norm, rather than the exception. A recent study of American and German sharing practices by scholars at Columbia University indicates nearly half of the population of both countries had downloaded files "illegally", with that figure booming to 70 per cent among under 30s. Most of the file sharing was casual and most file sharers continued to consume paid media at a high level.

Whether law reform is the solution to this disconnect remains an open question. The Australian Law Reform Commission engaged in some soul-searching after Ham's death, considering the possibility of fair dealing exceptions in the case of iconic works.

But given the political nature of many of the high-profile cases in the battle over internet transparency — Dotcom, Bradley Manning and Wikileaks are obvious examples — a degree of scepticism remains. In Swartz's case, Rimmer said that a prior action, where he brought thousands of public legal transcripts out from behind a paywall at the US site PACER, may have made him a marked man in the eyes of the DOJ: "There's been some speculation whether or not he was targeted as a result of that earlier altercation."

Moreover, law reform would be against the interests of much of the intellectual property "industry", Rimmer adds:

"There's been a flourishing of intellectual property trolls in a range of disciplines: trademark law, patent law, copyright law. There's incentives in terms of civil regimes for certain entities to have a business model of litigation — to take people to court unless they cough up licence fees."

In Pesce's view, if the various parties realise the Swartz tragedy to be the watershed it is, there may be a positive outcome:

"I think there's a moment here — which is probably rapidly being squandered — where the sides could come together and have an intelligent discussion about this. But if that moment disappears, the middle ground that should be able to accommodate different points of view — economic interests, philosophies — is going to vaporise and collapse into some kind of low-level war," he said.

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Posted Wednesday, January 16, 2013 - 14:54

The time for the ending of IP and copyright has come. IP and copyright should never have existed. It should never have been a criminal issue, the remedy, if one accepts that copyright and IP should exist, was civil and there is should remain.

What copyright and IP laws do is restrict distribution to those that can afford it, restricts innovation as you can not use it to improve it and catches unwitting people into that net. The Men At Work song is a perfect example, there is no serious allegation that I am aware of that the writer copied the riff.

With medicine in particular if IP did not exist it would be impossible for big pharma to charge so much for their medicines and they could be made cheaper with most people being able to have access resulting in better health outcomes and those people would also be more productive in the service of the economic system.

Posted Thursday, January 17, 2013 - 18:51

Like climate change, we'll just have to get used to it. USA hegemony over the entire planet depends on blanket censorship and continued blanket propaganda of the type with which Australian News channels fill their slots. It is unAustralian now to question the probity of anything done by the USA, even murdering thousands of innocent children and their parents in Pakistan, Afghanistan, Yemen and Somalia with drones 'manned' by young men in Virginia USA. If it takes a state purge against all those who threaten to upset the USA's empire-building, then that's the way it's going to be. I can't do anything about it, neither can anyone else. If the majority who desperately want access to a peaceful death are ignored, and another majority of citizens who want all citizens of this country to be equal before the law are ridiculed and ignored, what hope is there of stopping something that is vitally important to the continued power growth of the multinational corporations that run the planet? There is no hope whatever, so be careful and plan your escape.

This user is a New Matilda supporter. thomasee73
Posted Thursday, January 17, 2013 - 22:17

So Elbert, your recommended response to a bully is to not make a fuss in the hope that the bully will stop, while planning an exit plan, presumedly to another planet...

hmmmmm, when you put it like that, it doesn't seem that compelling.

Posted Friday, January 18, 2013 - 11:59

@Iain Hall, I don't know where you have been for the last decade, but it is no longer the case that holders of copyright and patents create content, but are increasingly holding companies and shifting legal entities that exploit the weakened and increasingly dysfunctional copyright and patent laws against innovation and true content creators. That an overhaul is desperately needed is obvious, but vested minority interests continue to forstall to the detriment of all. In the end the blame can only be laid at the feet of gutless decidedly unvisionary politicians who have been trusted with the task of protecting the public interest but continue to fail miserably in respect to copyright and patent reform.

Posted Friday, January 18, 2013 - 14:19

These are tragic deaths (Aaron Swartz, Greg Ham) resulting from over zealous laws and prosecutors, but it does lead to the question about whether there should continue to be any IP rights.

@googwillta is correct that much IP now belongs to holding companies, but some is doubtless in the original creators hands. We might not like such companies, but they did buy the rights from the creators, who thus got a financial reward for their efforts, and so continue to eat. Such companies will stop buying rights if there are no more rights to be had.

Where it all gets more problematical is when the creativity takes place c/o public money eg Unis, CSIRO, Standards Australia and the like. Have'nt tax payers already paid for the work? And yet eg CSIRO brought to AUS lots of money once they beat up the IP theft by major overseas companies re their WIFI invention.

Few would deny it costs a fortune to put a new drug through all the hoops to gain approval. Should that new medicine then be made at manufacturing cost price by some company outside the legal reach of the developer? AIDS and other groups would say yes. Some illness pressure groups would point out that the drug companies continue to ignore globally significant illnesses because they are only experienced by the poor, so no chance of a return.

We may have to rethink our entire method of encouraging and rewarding the creation of IP whether it be artistic, medical, engineering or whatever. We have expected patents, and the marketplace, to determine successes and consequent remuneration, but we are now in an era where public disclosure and free use of IP has become endemic, thanks to The Internet.

Do we want a 'government committee' sending funds to artists, researchers and inventors? In a sense, that is exactly what we do already via the arts council, university research boards, CSIRO management, and the like.

Blowed if I know the answer to all this, and if I did, how would I get rewarded for it anyway?

Posted Saturday, January 19, 2013 - 20:59

Elbert, just a point out of left field. 'drones 'manned' by young men'. Maybe someone can inform me, but is it not true that some of the young mass remote murderers sitting at computers in Arizona, I think, doing the bidding of the CIA and Barack Obama, are young women. The CIA headquarters are in Virginia, but I think the main 'control' facilities for killer drones are on an air base in Arizona. I may have read wrong.
One has to wonder how these people are going to live with themselves down the track.
The Nuremberg excuse? Or are they chosen for their total lack of any ethical or moral compass. Which would make the whole lot of them psycho. Great citizens.
As for American Hegemony on all aspects of the Internet, it has been so easy for them to make any hacking intrusion an aspect of Terrorism, and thus come under draconian laws, referred to Homeland Security. There have been victims as noted here, Assange included. although he still lives to date. Much to the regret of the Obama administration. They will keep applying pressure, hoping to break him also. And Gillard and Co. will remain silent.
What is needed badly is an alternative to the American controlled Internet. I think I have read that others think along these lines also, and are working on a hopefully FREE internet that is outside US control. But ALL Governments or whatever ilk want to have control over any Internet, they do not like anything that can operate without their overriding censorship. Look at what our Australian Government has attempted over and over again, and will continue to do so. Attorney General Nixon is no friend of a free internet, nor is Senator Conroy. The Federal Police, ASIO, and all the other Spook organisations keep on pushing for secret manipulations. They see the USA, China, Iran, Britain, Egypt, and all the rest working hard to wrest control of the internet from the Public. Some with great success, according to their lights.
The battle will remain interminable while we have authoritarian Governments. Is there any other type, these days?