Swartz Death A Tipping Point


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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