Regardless of the amount of incarceration time, pleading guilty would also have resulted in additional punishment that the "he was only facing six months" crowd completely ignores.
There would be forfeiture, which is surrendering all the equipment, money and property that the government says had something to do with his crime. You can rest assured that the government would have sought everything he had acquired since the earliest days of his open-access advocacy.
There would be restitution, where he would be forced to pay a very unpleasant amount of money to MIT and JSTOR, even though JSTOR had already settled with him, and even though MIT hadn't suffered any harm not attributable to the institution's own overreactions.
His release would be supervised, meaning that once he served six months, he'd be out of jail but not as free as the rest of us. He'd be subject to harsh restrictions on his life out in the world, as was done in the wire fraud/"hacking" case of Kevin Mitnick, who was forbidden from even touching a computer or talking about his case for 10 years after his release. Swartz would almost certainly be subject to similar restrictions. He would be forbidden from using the Internet except as a casual, passive user. He wouldn't be allowed to engage in any activism of any kind, not even publicly expressing his opinions about injustices, be they related to open access or not. He'd be under a gag order, forbidden from talking about his admitted crime or doing anything that might garner publicity or result in profit related to it. He'd be putting himself at great risk of reincarceration if he were to become "Internet famous" for any new accomplishment whatsoever. He'd be under travel restrictions, would have to keep the government informed of his whereabouts, and would have to regularly check in with a probation officer. Anyplace he goes, he'd find that there are all sorts of laws on the books, as well as unwritten policies of employers, to make life harder for felons.
And finally, by admitting that his actions did in fact constitute the exact crimes with which he was charged, he would give the DOJ license to pursue further convictions of people with just as little—or even less—evidence against them; there government would concoct ever-more egregious stretches of the definitions of wire fraud and computer damage, in the name of protecting businesses from "hackers".
One of the comments on FightCopyrightTrolls says (unconfirmed) that the scammers rely on spyware which scans your computer for .torrent files and maybe also P2P software.
If this is true, then presumably it just sends what it finds, along with your current IP address, to the scammers. I wouldn't be surprised if it also looks for your home address. Then they have everything they need for an extortion letter.
If such spyware can be located, it should be reported far and wide, so it can be detected and removed.
Re: Re: Re: Re: Deja vu all over again: "Yesterday, we pointed out that..."
There are many reasons to hate and fear Big Search (not just Google), but that's not relevant. out_of_the_blue's strategy here is distraction and ad hominem. As usual, he's hoping that we'll think of Google as evil and not worth defending, Techdirt as a self-serving echo chamber, and Masnick as a shill and a fool.
Saying "he does make a good point there" about anything just encourages more of these fallacies of argument from the trolls. Now the conversation is about the ways in which Google is evil, rather than the topic of the article, which was... I forget.
The DMCA doesn't mandate the use of automated takedown submission tools. It was only recently that Google even started accepting electronic submissions; a few years ago, it had to be by fax and snail mail only, with about a 10-day turnaround time. They ought to go back to that.
So, does the limit to the number of requests apply to the fax and snail-mail submission methods?
The "transcript" is actually just his prepared remarks. After an embarrassing introduction, he takes about a half-hour to read that speech, throwing in some jokes. In the second half of the video, he responds to (not answers) questions relayed from random people who were listening to the event on radio and online (I think?).
At 47:38 he's asked a very specific question about Hollywood's copyright maximalism:
"The MPAA has backed extending copyrights for works that were created decades ago [...] What possible public good could come of extending such copyright? Isn't this a huge giveaway to the studios and publishers?"
Dodd: "Wha-what? Read that again; what is it?"
Moderator: "[The] question is about extending copyrights for old movies."
I was excited that someone had actually asked him directly about a specific aspect of copyright, and then I was immediately enraged by how deft a politician he is. He didn't even respond or care about the actual question; he just used it as an opportunity to launch into talking points. He's quite the lawyer, as well, never really ending any sentence, lest he get asked any followup questions.
He dodged the copyright extension question by saying that such arguments are "unfortunate" because they presume that Hollywood and Silicon Valley are bitter adversaries, and that one side must emerge victorious at the expense of the other. He knocks down this straw man with proclamations of how Hollywood loves and needs technology, and how wonderful it is for everyone (well, just them, really) as they work on manipulating search engine results, seizing pirate sites, and telling pirates that what they're doing is illegal. The implication is that the tech-loving public just needs to chill out a little, be ready to compromise and give ground to the MPAA rather than, say, get all riled up about copyright grabs or the next SOPA or whatever.
I agree that it's not problematic because it's old, or because it's not directly relevant. The Capitol v. Thomas-Rasset appeals court was emphatic on this point. When the law says that damages are punitive, they can be reduced by the judge. Ordinary statutory damages can't be reduced (as per Williams).
If I understand correctly, Thomas-Rasset wants the Supreme Court to decide whether statutory damages for copyright infringement are, in a case like hers, in effect punitive, and thus eligible for reduction. So that's where Williams, or at least its application in later cases like this one, is problematic...there is an assumption that statutory damages can't be considered punitive.
The industry's position is that copyright law doesn't make an exception for when there are no legal alternatives to obtaining the content. From their point of view, it's irrelevant whether and when they offered the music in physical formats, or online, or in the file formats people wanted. The courts have indicated that the letter of the law clearly doesn't allow for an exception, so none can be assumed.
It doesn't matter if she had a choice of downloading legally or not. She'd be in the same boat either way.
The Supreme Court gets tons of requests to review cases every year, and they only ever choose to review a handful. Maybe I'm wrong, but I don't think the government normally wastes it time filing briefs urging the court to refuse all of them. Is it telling that the DOJ, which is packed with ex-RIAA lawyers, felt they had to intervene, especially in a case that doesn't involve a circuit split?
You are correct in that MP3s of major-label content were not legally available until 2007, when the RIAA had already committed to pursuing the Thomas-Rasset and Tenenbaum cases in court. But this wasn't particularly relevant to Thomas-Rasset's case. She maintained she hadn't downloaded or shared anything, and the RIAA maintained that the law forbids such activity without license, regardless of what formats they offer. IIRC, they even used the fact that the file format was MP3 as proof that the files were unlicensed.
And I think your explanation of why MP3s eventually became available is only partially correct. The RIAA already knew unlicensed file-sharing services were wildly popular; Napster wasn't special in this regard, and they treated it no differently. They assaulted it and danced on its grave.
The main reason they eventually tried distributing non-DRM formats, as I see it, was because Apple, a company too big for them to sue out of existence, first pressured them to license content for DRM-encumbered distribution in 2003, and it was a wild success. Once able to prove how profitable digital distribution could be, Apple then pressured them to try dropping the DRM, which finally happened in mid-2007—ironically, with Capitol/EMI being the first on board, at the same time they were taking Thomas-Rasset to court. The success of the non-DRM store led to Amazon getting on board as an MP3 distributor that same year, and many others soon after.
However, despite the money to be made from sales of non-DRM formats, I don't think they'd be so keen on offering those formats if the trial against Thomas-Rasset hadn't gone so well for them. If statutory damages couldn't be applied to small-time infringement via P2P, or if the court had said they needed way more proof, they would've been much more cautious.
I think it's good that you commented, though. I know it's discouraging to be ignored, but there's a small part of me that's foolishly optimistic about the idea of submitting comments that challenge the status quo.
Of course, the USTR is going to ignore anything along the lines of "these industries are dinosaurs that deserve to die." You'd have to frame it more like "Here's something good for American business." In other words, for your comment to even be looked at by anyone who matters, you'll have to dole out free advice on how U.S. IP-dependent industries can remain competitive and benefit more by embracing something less than the typical maximalist policies and philosophies they've advocated in the past.
I would trot out examples of industries that do very well without maximum protection from unwanted competition (bottled water, fashion, and subscription TV are among my favorites) and examples of industries that flourish despite rampant illegal competition (like pretty much the entire entertainment industry). Are we to believe that prices would go down if only piracy could be stopped?
I'd also point out the ways that copyright/patent/trademark maximalism and finger-pointing hinders and discourages innovation, concentrates influence and commerce into a handful of multinational corporations, undermines culture and public confidence in IP in general, and makes American IP-based industry less competitive and less profitable.
It's probably still just pissing in the wind, but at least someone representing the public interest would be on record.
One of the more distressing parts about all this, to me, is when the publishers contact a library and say "you don't have permission to lend this title" for whatever reason, it doesn't matter that the publisher legally has no say in the matter. It's just like fair use. They have implied that they are willing to sue, even if they don't really have a case. Duke University may be able to tell the publisher to GTFO, but what do you think the legal counsel for a cash-strapped public school district is going to advise that the library do?
The law doesn't discourage false assertions of authority by copyright owners over exceptions such as fair use or library lending. In theory, the prospect of losing those cases in court is the discouragement. But that means going to court, which schools and pretty much anyone else try hard to avoid. It's much easier to just cow to the publishers' demands.
The ALA should call upon Congress to help remedy this situation with stronger incentives for publishers to avoid asserting rights the law does not grant. In the meantime, schools should reconsider their relationship with publishers that are openly hostile to those schools' libraries. If Wiley threatens a university library, then the school should discourage or prohibit its faculty from using Wiley textbooks.
One of the supporters of having an IP czar was House of Lords member—and PRS boardmember—Baroness Morris of Yardley (L), who said, referring to her brief tenure in the Department for Culture, Media and Sport in the mid-2000s, “...I never felt as much animosity about copyright as there was between the DCMS and the DTI [Department of Trade and Industry], as it was in those days. The two departments were on different sides.”
This affirms what we already intuitively know: Strong copyright impedes and undermines cultural preservation, access, advocacy and enrichment. It doesn't matter how well organized and funded you are; your hands are tied by laws written for the sole benefit of the entertainment industry.
How someone so pro-copyright got to a senior position in the DCMS, I don't know. But it's heartening to see that it led to her public admission that being against strong copyright isn't just the domain of pirates and other scoundrels who just want free stuff; it's the well-considered position of intelligent, passionate public servants, librarians, archivists, and other experts who have been entrusted to advance and advocate for culture, for the good of their nation and for the good of the world.
Wow. I hope at some point you find yourself defending freedom of the press. I'd sure like to see the look on your client's face when you refer to their attempt to shine a light on malfeasance and injustice as "whining on the Internet".
Re: Re: I don't even think there's anything "arguable" about it.
The safe harbor provision of the DMCA is what protects every ISP, phone carrier, search engine, file locker, and user-uploaded content site from being sued for their users' copyright infringement. So at best, those intermediaries are going to lobby for reform, not repeal.