Two Stories About One Story About the Morality of Intellectual Property

The PROTECT IP Act (PIPA) is a currently pending Senate bill that seeks to reduce online piracy by shutting down domestic access to foreign ‘infringing’ websites (inverted commas because there’s much dispute about what ‘infringing’ means in the context of the Act).  Proponents of PIPA, primarily content industries and affiliated entities, claim that the Act is an essential bulwark against growing threats to piracy from rogue websites, especially foreign ones.  Opponents of PIPA, primarily internet-freedom advocacy groups and some industry players, such as Google, respond that the Act represents a threat to internet commerce, innovation, and free speech.

One of the staunchest foes of PIPA is Demand Progress, a political advocacy group that favors privacy and internet freedom.  Yesterday, the founder of Demand Progress, Aaron Swartz, was arrested and charged with an indictment in U.S. District Court for breaking into MIT’s computer network and illegally downloading information from the internet archive JSTOR.  These charges are no joke—they could carry a penalty of up to 35 years in prison and fines of up to $1 million.

What I found most interesting about the news reports about Swartz’ arrest was not the details of these reports (given that only a complaint has been filed, it’s a bit early to have a fully formed opinion on the strength of or motivation behind the federal government’s charges), but rather the strikingly different tenor of the news reports themselves.

This account from Politico.com paints Swartz and the charges against him in a sinister light.  This account from ArsTechnica.com, by contrast, portrays Swartz as a hero, and the charges against him as “bizarre”.  I say more about these two very different accounts of Aaron Swartz’ arrest, and what the difference between them means for the morality of and social norms surrounding intellectual property, below the fold.

Politico’s version of these events (“Copyright Bill Foe Charged in Theft”) reads like it was dictated by the Justice Department.  It accuses Swartz of “theft” in the first paragraph, and goes on to feature a money quote from U.S. Attorney Carmen Ortiz:  “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away.”  Swartz’ substantial accomplishments as an internet prodigy, the possible internet-freedom-related motives for his conduct, and Demand Progress’ opinion of the charges, get brief and limited billing only late in the piece.

By contrast, ArsTechnica’s version of the same events (“Former Reditt Co-Owner Arrested for Excessive JSTOR Downloads”) reads like an encomium to a young freedom fighter wrongly accused by an overzealous government.  The piece leads off by referring to Swartz as a “24-year-old wunderkind,” and emphasizes that he co-created both the RSS specification and co-owned the site Reddit before his 20th birthday.  Rather than characterizing Swartz’ conduct as “theft”, the piece gives a careful (and often critical) factual account of his making unauthorized downloads from JSTOR based on the complaint.  The U.S. Attorney is nowhere to be heard, but Demand Progress’ criticism of the charges (that the arrest is like “trying to put someone in jail for allegedly checking too many books out of the library”) is featured prominently.

Each article’s rhetorical posturing pushes it to use inapt and misleading analogies.  Politico’s repeated invocation of the term “theft” doesn’t come from the charges themselves (which are mostly about fraud, with one charge of unlawfully obtaining information from a computer), but rather from the U.S. Attorney’s equivalence between physical and intellectual property—“Stealing is stealing.”  But despite the surface allure of this comparison, as a practical matter, unlawful acquisitions operate very differently in physical and virtual spaces.  If you steal my car, you deprive me of my means to drive entirely.  But if you copy my protected work of authorship without authorization, you don’t deprive me of my capacity to use and enjoy the work, you simply deprive me of possible royalties or license fees for unauthorized use(s).

The quote from Demand Progress that ArsTechnica features also understates the scope and seriousness of Swartz’ actions by equating it to a simple oversight by a library patron, and suggesting that Swartz was merely using “unorthodox” methods to express his “passion” for “open access to information”.  Swartz didn’t simply or inadvertently download a couple JSTOR articles in excess of the site’s terms of use.  According to the complaint, at least, he broke into an MIT computer closet, hiding his face behind a bike helmet, and hacked into MIT’s computer network, using an IP masking technique to facilitate the download of 4.8 million documents from JSTOR.  At one point, JSTOR responded to these efforts by simply blocking access to their site for the entire MIT network.   And not only were MIT students harmed by Swartz’ efforts, but JSTOR was well within reason to suspect that the attempt to download their entire library might result in the library’s being made available for free download, undermining their ability to recoup profits from their service.

Each side’s rhetorical posturing is clearly not to be taken seriously in a denotative sense.  But that’s not to say that this rhetoric doesn’t matter.  The Swartz arrest is just one in a series of episodes that emblematize the growing rift between content industries (who push for, and usually get, legislation expanding and protecting their rights) and groups concerned about internet freedom (who almost always manage to stay a step ahead of attempts by industry and government to create free access to content).  Part of this rift is a war of words—are the Aaron Swartzes of the world dirty thieves or valiant freedom fighters?—but this war of words affects social norms about the morality of intellectual property.  However much government and industry may win legislative battles, these wins may be hollow if they don’t convince the general population that infringement (or, in the Swartz case, other information fraud crimes) are morally important.

Hence my frustration with each of these narratives of the Swartz case.  It’s impossible to get a complete sense of the content and context of Swartz’ actions, or the possible social costs of those actions, without reading both pieces together, and this strikes me as a concerning shortfall of each of them.  The media outlet whose coverage I found most satisfying of this episode was actually in the Boston Globe, which presented a responsible, balanced, and accurate account of the matter.  In this case so emblematic of the digital age, it’s more than a little ironic that the best coverage may be found in a stalwart of the old media regime.

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9 Responses

  1. PrometheeFeu says:

    It must be noted that after discussing the incident with Aaron, JSTOR decided that there was nothing for them to worry about. My understanding of the facts is that he got into a room where he was allowed to be and used computers he was allowed to use in order to access information he was allowed to access. The only thing that he violated was the speed and volume at which the download was authorized. While that is most likely a violation of the TOS of JSTOR and MIT, it hardly can be characterized as theft as U.S. Attorney Carmen Ortiz tries to do.

    To be fair, I’m a pretty strong opponent of copyright laws and government-granted monopolies in general, so I am somewhat biased.

  2. Rob Hunter says:

    My understanding (gleaned, I will admit, from Ars and similar sites), like PrometheeFeu’s, is that Swartz has been charged with theft and breaking and entering — but not with violating copyright, despite the fact that he violated JSTOR’s ToS. It seems like the Justice Department is interested in preserving a particular cultural logic — the view that unauthorized access of information is tantamount to “theft” just like stealing physical property — or, as the U.S. Attorney tendentiously put it, “stealing is stealing.” The heavily moralized tone of the indictment and the stories about it in outlets like Politico is weird and rather strained.

  3. David Fagundes says:

    Thanks for the comments. PrometheeFeu, I think JSTOR has made a public statement that they did not ask that charges be filed against Swartz. They appear to have originally suspected that Swartz’ aim in downloading their files was to make them available for free online elsewhere, which seems like a plausible concern, but it’s not clear to me whether they still have this concern.

    In terms of the legality of Swartz’ entering the room where he accessed the computers, I recall from the complaint (around paragraph 28) that he hid his face when he was entering and leaving the room, which suggests but does not prove that he did not have valid access to the room (it could be that he did have access but wanted to conceal his identity for other reasons).

    In terms of the “theft” issue, what bothers me most about the US Attorney’s invocation of this is that unauthorized access to and copying of computer files is very descriptively different than traditional theft of physical property because it does not deprive the owner of use of the accessed/copied content. Hence it’s not just that what Swartz did was not “theft,” but that the idea of “theft” from common law physical property may not be a coherent matrix for thinking about intellectual property torts.

    Rob, you’re right about the scope of the complaint. As I mention in the post, the charges against Swartz include fraud and unauthorized access to information on a computer, but they do not include copyright infringement. For that reason, I’ve modified the title of the post slightly to use the term “intellectual property” rather than “copyright,” which I hope clears up any confusion.

    But I think it has to be right that the US Attorney is attempting to create a simple moral equivalence between physical property torts and intellectual property torts. I can see why she’d want to do this as a strategic matter, but I’m concerned that mainline media outlets are picking up on and then uncritically repeating this rhetoric.

  4. Rob Hunter says:

    @ David’s comment #3

    “I can see why she’d want to do this as a strategic matter, but I’m concerned that mainline media outlets are picking up on and then uncritically repeating this rhetoric.”

    I assume that encouraging media outlets to repeat the (in my view, mistaken) claim that violations of copyright are tortious in the same way that physical theft is tortious is part and parcel of Ortiz’s strategy. In general, proponents of restrictive IP laws have shown a marked preference for framing violations of those laws not merely as torts but as harms in a moral sense.

  5. Justin says:

    One quick correction:

    Swartz didn’t create or co-create Reddit. He did found Infogami, and joined Reddit six months after it was created to attempt to merge Infogami and Reddit, but was ultimately fired. You’ll notice that the ArsTechnica article doesn’t say he created the site, just that he owned a piece of the company when it was sold to Conde Nast, which is true.

  6. @Rob Hunter – Swartz has not been charged with theft or breaking and entering. Those would be minor state-level crimes in any case, and this is a Federal indictment. Just a speculation, they probably didn’t go for copyright infringement because *criminal* copyright infringement against the academic/”fair use” defense likely would be a loser and generate a huge backlash.

    @David Fagundes – “But I think it has to be right that the US Attorney is attempting to create a simple moral equivalence between physical property torts and intellectual property torts. I can see why she’d want to do this as a strategic matter, but I’m concerned that mainline media outlets are picking up on and then uncritically repeating this rhetoric”

    Welcome to the party. Glad to have you. You are completely correct about what the US Attorney is doing. This happens EVERY SINGLE TIME these information business model issues come up, going back for many, many years.

    Oh, regarding narratives, the New Media is that everyone is a partisan ranter out to get attention for ad clicks and the like, and it’s up to YOU to read all the rants and “triangulate”. Otherwise, it’s said to be lecturing, elitism, out-of-touch, lazy, etc. etc. Many of the web-evangelists will be glad to explain this to you.

    [Disclaimer/Disclosure – I’m not a lawyer, but I’ve done policy work around these sorts of issues].

  7. PrometheeFeu says:

    @David Fagundes: Yes, after some further reading it is a bit unclear whether he had access to that particular room. Sorry for the confusion.

    I do share your concern regarding the conflation of theft and infringement of intellectual property rights. Furthermore, given the position of media companies as large producers of intellectual property, there is an incentive for them to conflate the two and not rectify such errors. I do think it is irresponsible (not to mention unethical) for the US Attorney to make such obviously false statements. But as Seth said, that is unfortunately par for the course in such cases.

    As for your complaint regarding the partisan bias of both of these sources, I actually like it that way. I think such partisan bias has always been in the media. It’s just that it is now more pronounced and especially more obvious. Overall, I much prefer knowing clearly that a paper is privileging one side of the story rather than having to guess what side of the story a paper is presenting.

  8. David Fagundes says:

    @Justin: I re-read the article and it does say only that Swartz co-owned Reddit upon the site’s sale to Conde Nast. I’ve revised the post to fix that, and thanks for the correction.

    @Seth Finklestein: Thanks for the words of welcome, I do love a good party. But I’ve been at this one for a while, actually. See 94 Minn L Rev 652 (2010) (arguing that copyright maximalists use flawed analogies between physical and intellectual property to push an owners-rights agenda).

    @PrometheeFeu & Rob Hunter: Your comments have caused me to think of my post primarily as a critique of the media. I can understand why the US Attorney would want to use analogies to physical property. Although I don’t buy the analogy, neither do I think it lacks any rational basis, so Ortiz is within her professional role as a zealous advocate to invoke it in order to advocate on behalf of her client.

    It’s really the media’s uncritical reception and repetition of these analogies that bothers me. I am more concerned about overtly partisan media than some others might be for a pair of reasons.

    First, not all media outlets make clear their biases. A non-specialist who found Politico’s or ArsTechnica’s piece via a Google search would likely not know that each site has an (overt or covert) agenda, so they might wrongly take either angle as the unadorned truth, and that could lead to a less informed public.

    Second, psychologists have shown that when people are exposed only to one idea, this tends to harden their preexisting beliefs, and possibly also cause those beliefs to become more extreme. For a popular take on this literature, see Sunstein, Why Societies Need Dissent. So I think a balanced piece like the Globe’s does more for creating an informed citizenry because it forces people to read both sides of the issue, rather than allowing them to simply satisfy their preexisting beliefs by reading the view they’re already inclined to agree with.

    But thanks, all, for reading and for the good comments and discussion.

  9. PrometheeFeu says:

    @David Fagundes:
    I must admit that I am unfamiliar with the cultural and historical background of US Attorneys. I am French where the “procureur” is deemed to defend the interest of society. The interests of society as a whole would not be served by pushing such a flawed analogy even if it facilitates a conviction. Even though this analogy is not without rational basis, it has been challenged on numerous occasion and practitioners of law should be expected to use legal language in an accurate way. Theft after all has a precise legal definition which is quite different from what Mr. Schwartz is accused of. Again, this may be my cultural bias.

    I just have a hard time blaming the media for their bias when their own perceived interests are so intertwined with the issue. I think the problem is that copyright is to most people a self-evident institution. (Most people’s reaction when I bring up my position on the subject is surprise at the whole idea that IPR can be questioned. Most of them don’t think there is anything to talk about except perhaps the limits on enforcement.) As such, I find it unsurprising if unfortunate that the media would oppose IPR violations the same way they would oppose murder, rape or theft. I think before we can see the media challenge the likes of this US Attorney, there will need to be significant changes in the social perception of IPR.

    I see your point regarding the fact that Ars Technica’s and Politico’s bias are not necessarily obvious to a first time casual reader. However, I do think the biases of Ars Technica (I don’t read Politico and so cannot speak to that) would become apparent quite rapidly to a repeat reader. I also agree that reading a single point of view is not beneficial. However, when all you read is the newspaper of record, you can easily be tricked into believing that you see both sides of the issue when really you are seeing what the newspaper of record considers to be the valid sides. When you read Ars Technica for a while, there is no doubt that they are not telling you everything and you can then search for opposing view-points.