They still believe that? Sorry but they're unfit for the job. They need to go. There was nothing reasonable about their actions on this case.
> a sentence that we would recommend to the judge of six months in a low security setting.
Six months in jail for downloading files that were accessible to him? All he did was violate terms of service! Are we going to start arresting under-age Facebook users or gamers that cheat next? Should they get six months too?
This statement is just icing on the cake that proves that Ortiz is inappropriate for that job/role.
Kerr does a textbook analysis of the facts, ignoring the particularities of this case. Not one but three (!) lawyers picked up Aaron's case, and all three failed to reach a plea bargain -- clearly the prosecution was more "motivated" than usual. Given this fact, the fact that in these circumstances a bargain is not actually binding for the judge, and the other fact that there was no interest in keeping Swartz happy post-sentence (no co-conspirators to turn, no further loot to recover etc), you can see why Swartz would not agree to just put himself in the hands of a Justice, and why the "six months" scenario was actually fairly unrealistic (and still disproportionate, regardless).
I also disagree with his view that (I paraphrase) "we shouldn't criticize special cases, we should criticize what goes on every day". Yes, we all agree that you shouldn't "be good" only at Christmas, but the reality of this world is that legislative bodies quite often (if not all the time) will only act on the impulse of particular cases. This is what is happening now, which is good. Also, I'm sure that not "every day" prosecutors callously dismiss proven suicidal tendencies in pursuit of career-enhancing convictions, if anything to avoid ending up in a mess like this -- except for Heymann, who clearly won't give two shits about the wellbeing of young hackers. One case is a mistake, two is a pattern, and Heymann and his boss should take responsibility for their behaviour.
Kerr, who has both prosecuted these kinds of cases and defended them, ignores none of what you're saying. He comes about as close as someone who might in the future need to deal with these specific prosecutors can come to saying that the prosecutors were exceptionally aggressive.
Further, while it is possible that circumstances could arise in which a 4 month plea from Swartz could be ignored by the judge, those circumstances are extremely unlikely. Not only do judges rubber stamp plea deals, but in a case involving 13 felonies, Swartz would very likely have arranged a Rule 11(c)(1)(C) plea in which the judge's refusal to accept the plea simply would have resulted in a trial.
You seem to be implying that if the prosecution doesn't offer a deal you like, you should just keep hiring new lawyers until they make a better offer. Sounds like a get out of jail for $(cost of X lawyers) card.
Lawyer-people are (usually) human beings. Despite all the appeals to "professionalism" between prosecution and defense, some of them just have a better relationship, trading favours and whatnot.
Most honest defense lawyers will really have the best interest of their client at heart, and just dismiss themselves if they feel they can't work with a certain prosecutor; they might even recommend their own replacement. After all, it's in their own best interest not to get what they feel is a sub-par result on their CV.
The fact that Swartz went through three lawyers, coupled with what the last one of them said, might as well indicate that all of them felt the prosecution was being unreasonable, and were hoping that a different person might have obtained better results.
>These two links will clear up a lot of misconceptions you seem to have about this case.
Do they? The first analyses the law given a stated set of assumptions about the facts. If Swartz was able to successfully dispute some of those alleged facts (many of which came from the indictment), it could completely change the outcome. And the second basically punts on the specific issue of whether the plea offered was appropriate or not, describing the legal standard but declining to apply it to the case.
Both posts are excellent if you want to get a feel for the law surrounding this case from someone who legitimately knows what he's talking about, but whether what the prosecutors did was appropriate depends substantially on the actual facts, which Kerr has no better access to than the rest of us.
To hear Aaron's defense counsel tell it, the facts show that he was completely innocent. And if you accept that version of the facts rather than the one in the indictment, it seems especially difficult to conclude that what prosecutors did was appropriate.
They should both be required reading for those interested in the aaronsw case IMHO. There's a reason the consensus about the case (even on HN!) before Aaron's suicide was so wildly different from the current witchhunt, and the reason is contained in those two Kerr writeups.
Downloading four million files, apparently. And if by breaking terms and services you mean illegally distributing protected content and threatening the business model of JSTOR then yes, I suppose that is true.
One, two, a million, four million, what difference does it actually make? The crime was violating the terms, it isn't relevant where the EOF bit was transmitted. If you made the same files half as big he would have "stolen" twice as many files, or twice as big then he would have done half the crime by your logic.
He never distributed anything. No clue where you got that from?
Additionally "threatening a business model" within its self isn't a crime. In fact one might argue that it is a very good thing. Monopolies have often fallen to disruptive technologies, should we go arrest the people behind VoIP because they went after the telecos? Or the inventors of the printing press because they put scribes out of business? Or the inventor of the light-bulb because nobody had to light all of those candles each night?
The only "crime" here was violating terms. For that they want to hit him with between six months and thirty five years of jail (plus costs, fines, and a criminal record). If this same over-reaction was applied to all terms violators we would have half the country in jail right now.
It makes a big difference. Four million is apparently the majority of JSTOR's database. Keep in mind that JSTOR doesn't own those articles, it just arranges approved access to paying institutions on behalf of the various journals which do own the articles. If Aaron had distributed them he might have damaged around a thousand different institutions involved in an important segment of the knowledge and innovation industry. You can argue that that industry should change but I am not sure I can agree that a brute force assault is a good way to create constructive change, especially in a relatively fragile and cash-strapped field like academia.
Anyway, I've used JSTOR a lot as a university student. It's a really good service. They don't create the economics of the journal industry, they just try to work within it.
And no, I disagree with you, Aaron's actions strike me as extreme and out of the ordinary.
Or his actions could have spread the wealth of information to many who lack access to it, facilitating further progress.
The notion that publicly funded research works are behind paywalls is absurd.
In any case, we will never know, because he never got around to actually distributing or doing anything with the downloaded products of public funding.
Are you sure that every article behind the JSTOR paywall was 100% publically funded? That's one question I've never heard the answer to.
Not to mention, let's say we're talking about stuff funded by the U.S. taxpayers... are you sure they would want those scientific articles to be freely available outside the U.S.? Similar questions apply to things funded by the U.K., France, etc.
Who gets to make that choice? In Aaron's world, he anointed himself Caesar and said that he gets to do so...
> Are you sure that every article behind the JSTOR paywall was 100% publically funded?
No, but we also don't know if his 'keepgrabbing' script was checking whether or not an article was in the public domain. This metadata is somewhat present on the JSTOR pages so it's conceivable that he might have been checking.... or not.
It is about extremely accomplished "young white men" deciding that unjust restrictions (not even rules, but terms of use of a website) should not be obeyed.
Terms of use are rules. Terms of use are the contract you establish with a party when they agree to render services to you. Just because it's "a website" doesn't mean shit.
Anyway, I don't care how accomplished you are, you don't get to decide that you don't like an arbitrary subset of the social contract and hence should be exempt from it. You are welcome to construct an argument against those rules and attempt to persuade others to your cause. But an argument for exceptionalism is no excuse for bypassing normal, democratic channels for political change.
Honestly I don't see why this point is so hard to understand. Aaron thought he had the answer to society's ills. You know what, everyone thinks that. Grumpy old men pissed off at immigration think they have the answer. The Unabomber thought he had the answer. It is one of the key advantages of democracy that we do not let individuals who think they have the answer just march in and change things as they see fit.
He didn't harm anyone in his violation of the website's terms.
Should the user of adblock be facing multiple criminal charges if they visit a website whose terms disallow its use? It's absolutely ridiculous to allow these terms to be used for criminal prosecution.
Civil disobedience is a valid form of protest, and such a minor act of disobedience is ridiculous to throw dozens of frivolous charges on.
The democratic process for change in the US is long dead. Aaron had powerful enemies in Washington.
What's to minimize, when the only potential victim of his actions said that were not harmed (and indeed they were not)?
What conflation? Do you think criminal charges for violating a website's terms are not ridiculous? Do you use adblock?
If you think democratic forces in the US are still working properly, I can see why you'd find realism to be melodramatic.
And finally, if you think powerful enemies in the US amount to nothing, you are again extremely naive.
In any case let's hope you aren't caught using adblock and violating a website's terms and being completely financially ruined in the pretrial stages of a frivolous prosecution.
Your theory is that a lot of libraries would suddenly stop subscribing to JSTOR because there's an old torrent of articles out there? That strikes me as ludicrous.
I believe there is no circumstance under which a release of the articles would have threatened JSTOR's business model in any significant way. And I think JSTOR believes that as well, which is why they told the feds not to pursue this.
Ah yes, the flipside of the normal rule of law, where it only gets directed at the poor. Now you're saying it's OK to mug someone, as long as they're rich and wouldn't have really needed the money anyways.
What a ridiculous thing to say. I never said it was ok to mug someone because they're rich.
(1) this is an organization, not a person
(2) they're not being 'mugged' (see below), it's us that are being mugged every time we want to read about some piece of research
(3) whether or not they 'need money' isn't a factor
(4) use of the word 'mugging' implies violence, which was not applicable here
The law has long recognized that there is such a thing as 'the public good' as well as 'the public domain'. That didn't stop Disney from getting rich over stories already in the public domain and it won't stop publishers from making money on content.
There is no innate right to wall off a chunk of human heritage and claim ownership, even though lobbying power and money have distorted the balance of power substantially.
> There is no innate right to wall off a chunk of human heritage and claim ownership, even though lobbying power and money have distorted the balance of power substantially.
That I agree with, along with our problems with the public domain and copyright reform. I just don't like the reasoning couched in language about how much benefit a particular party has obtained.
E.g. we might decide that copyright period of, say, a year is hurtful and should be extended because overall (or on average) not enough benefit is obtained overall for those with copyright protection, causing an overall hurtful effect to society. But we wouldn't base that decision just on party A or B.
I understand you may simply have been using a specific example to speak for the general principle though, and if that's the case I apologize for jumping on your argument like that.
There was a mix-up between academia and the publishers, with academia's financial issues used to bolster the case against sharing this data. But in actual fact the academic institutions pay the publishers and those publishers are very wealthy.
On another note, why is there only one 'kind' of copyright? Why do the same rules that apply to work written for profit apply to work written for scientific edification? Some differentiation there would go a long way towards solving these problems.
Don't get me wrong, I'm not at all a fan of the system setup by Elsevier et al. There's a lot that can and should be done to overhaul and scale back our system of copyright and other "intellectual property" to work better for the progress of society. I'm just also not a fan of the concept of "the ends justify the means".
"If Aaron had distributed them he might have damaged around a thousand different institutions involved in an important segment of the knowledge and innovation industry"
I know there is his manifesto from a couple of years ago but we can't be sure what he was going to do with them.
The most interesting thing is that the manifesto really walks a fine line. For example, here is one of the most relevant parts:
"We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks."
Now here's the funny thing: The first two arguably aren't illegal or infringing. If something is out of copyright then you can copy it. If you interpret buying a secret database as actually buying the distribution rights to it, neither is that. And if you read it in that context, you can imagine circumstances in which the same could be done to journals in specific circumstances, e.g. as a call for academics or their universities to retain their copyright so that they could do so with authorization, or with the subset of journals that charge for access but still allow liberal redistribution by those who have paid, etc. On the other hand, he's talking about civil disobedience, which implies lawbreaking. It's a conflicted piece.
So you have that, and then you have the fact that he was known to do work on text processing that may require a large corpus of articles for a database, which provides a rational alternative justification for downloading the articles other than to post them to file sharing networks -- or perhaps he intended to do that and also post that subset of the articles downloaded which could legally be posted, either because they're in the public domain or were appropriately licensed.
The point is we don't know, and the prosecution has the burden to prove it beyond a reasonable doubt. So even if you think it's more likely than not that he would have posted them all to Pirate Bay, do you think so beyond a reasonable doubt? Because if I was on the jury, to me, the above doesn't feel like beyond a reasonable doubt.
I keep on hearing this, and it continues to make no sense to me, so forgive me for reposting one of previous posts (s/commercial value/business model/ if it helps):
It seems implausible to me that publishing the contents of JSTOR in such a way would actually destroy any substantial amount of JSTOR's value. What university would actually drop their JSTOR subscription in favour of a bunch of unlicensed PDFs they torrented? JSTOR, in addition to keeping you on the right side of copyright law, gives you all their systems for querying their data, and keeps itself up to date.
Maybe a university in a developing country would drop their subscription, but any in the US? I find it unlikely.
Such a torrent would be far more useful to an individual who didn't have access to an organization that subscribed. However it seems these pay-per-download fees only account for a fraction of a percent of JSTOR's operating budget (http://news.ycombinator.com/item?id=5064408).
So it looks like there is some feasible harm there, but by no means destroyed commercial value.
Really? Not sure if it is just me but i found the JSTOR.torrent years ago and I always assumed it was from Aaron, the file was big like 35gb, I know there is another branded Aaron torrent floating around somehwere
They still believe that? Sorry but they're unfit for the job. They need to go. There was nothing reasonable about their actions on this case.
> a sentence that we would recommend to the judge of six months in a low security setting.
Six months in jail for downloading files that were accessible to him? All he did was violate terms of service! Are we going to start arresting under-age Facebook users or gamers that cheat next? Should they get six months too?
This statement is just icing on the cake that proves that Ortiz is inappropriate for that job/role.