You Know What's Missing From The Aaron Swartz Indictment? Any Mention Of Copyright

from the now-that's-interesting... dept

As we noted yesterday in our discussion of the indictment against Aaron Swartz, US Attorney Carmen M. Ortiz played up the standard, incredibly misleading, claims about how he was engaged in "theft." It's a standard claim from copyright maximalists that downloading anything without permission is "theft," even though the law is clear that infringement and theft are two different things. But... in reading and discussing this, we missed out on one very important point, that Mike Wokasch spotted: with all the things in the indictment, one thing that's missing is any copyright infringement claim. If you're going to talk up the "theft" angle, why not at least include a copyright infringement claim? Perhaps it's because the government knows that it would lose on that claim badly. Once you're on the MIT network, you are allowed to download these works. Thus, there's no infringement at all. That's a big problem for much of the case against Swartz, but the feds seem to think they can use the circumstantial evidence unrelated to the actual computer usage to convict Swartz by inference.

So, without even an allegation of copyright infringement, you really have to wonder where US Attorney Carmen M. Ortiz gets off claiming publicly that Swartz was involved in "theft." The indictment doesn't indicate any unlawful taking at all, even for those who (falsely) consider copyright infringement to be the equivalent of theft.

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  1. identicon
    Anonymous Coward, 20 Jul 2011 @ 10:46am


    @Library Dude.

    You are correct. Here's a comment from the Ars Technica board that elaborates:

    "MIT had a license for free access to JSTOR, but everyone at MIT has to obey the JSTOR TOS. I quote:

    "2.2 Prohibited Uses. Institutions and users may not:

    f. undertake any activity such as computer programs that automatically download or export Content, commonly known as web robots, spiders, crawlers, wanderers or accelerators that may interfere with, disrupt or otherwise burden the JSTOR server(s) or any third-party server(s) being used or accessed in connection with JSTOR;
    i. download or print, or attempt to download or print: an entire issue or issues of journals or substantial portions of the entire run of a journal, other than on an isolated basis because of the relevance of the entire contents of a journal issue to a particular research purpose; or substantial portions of series of monographs or manuscripts;"

    Since he was violating JSTOR's terms of service, he didn't have a copyright license, which means every single paper downloaded was infringing copyright (copying without authorization). As those collections of papers are extremely valuable, that almost certainly qualifies for criminal copyright infringement.

    That said, I think it's pretty stupid to treat it that part of his activities as anything more than a civil matter between him and JSTOR, and that the law should be changed. As it stands, though, he's blatantly in violation of criminal statutes, so it isn't surprising he's been charged.

    Charging him for breaking into MIT property is reasonable, of course, since he did (and obviously knew what he was doing wasn't allowed, at that, what with hiding his face from a security camera)."

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