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.