Comments on: “What the Aaron Swartz case says about our justice system”

By: Orin Kerr on the Aaron Swartz case - Overlawyered

Orin Kerr on the Aaron Swartz case - Overlawyered — Thu, 17 Jan 2013 18:30:07 +0000

[…] on sentencing, prosecutorial discretion, and the appropriate targets for reformist energy. Earlier here. […]

By: Hugo S. Cunningham

Hugo S. Cunningham — Thu, 17 Jan 2013 17:22:53 +0000

William Nuesslein wrote:
>I just don’t understand why our brightest joung people can not understand the need to finance common goods like research papers, recorded music or drug research.

Though rather long in the tooth myself, I suspect part of the problem is overreach by the “intellectual property” community. Government hysteria about marijuana has deafened young ears to accurate warnings about more dangerous drugs. Similarly, abuses of copyright (de-facto perpetual extension of copyright terms) and patent (“trolling” in a field [software development] not suited for the patent model) have deafened young ears to meritorious claims.

By: Criminals in Ma

Criminals in Ma — Thu, 17 Jan 2013 03:02:36 +0000

There are lots of real criminals in MA who are much more of a threat to the common good. This was political assassination to demonstrate federal power and the risks of defying domination by a sadistic force which exists for itself alone.

By: DensityDuck

DensityDuck — Wed, 16 Jan 2013 17:18:03 +0000

Everyone always forgets the part of Gandhi’s story where he gets beat up and put in jail.

By: William Nuesslein

William Nuesslein — Wed, 16 Jan 2013 14:09:14 +0000

I just don’t understand why our brightest joung people can not understand the need to finance common goods like research papers, recorded music or drug research. In Westchester county we have an award winning science program at our high school and Robert Kennedy Jr.

By: Steve

Steve — Wed, 16 Jan 2013 12:00:52 +0000

The US economy overwhelmingly and increasingly depends on its intellectual and creative outputs. China, Russia, South America, India, and other places have quite literally become rich largely on top of America’s unwillingness or inability to credibly defend its intellectual property. Of course, on an intellectual stage it is to some degree hard, despite the existence of TRIPS and the like for a variety of reasons. Nevertheless, it stands to note that Japan, for whom intellectual output is equally important, HAS managed to create a culture and practice of enforcing and prosecuting intellectual property crimes. I fully support any and all efforts by the US government to start treating such crimes seriously as, taken as a whole, they do far more damage to the US economy than do petty physical crimes. It is a sad state of affairs when we have to try to prosecute this guy (in internet forums) by discussing the relatively inconsequential matter of his breaking into a closet as a wedge to get into the far more serious issue of his criminal copyright infringement with intent to distribute. The culture of “because it’s technologically possible, it should be legal, especially if it means free stuff for me” is disgusting and, more importantly, utterly destructive.

By: Vern Dennis

Vern Dennis — Wed, 16 Jan 2013 03:03:56 +0000

The case says NOTHING about our justice system. Aaron’s suicide tells us that he was either depressed or unbalanced and lacked the courage to face the consequences of his actions (which would likely have amounted to little more than a slap on the wrist). I feel bad that he committed suicide, but ultimately we all our responsible for our own actions

By: Bored Lawyer

Bored Lawyer — Tue, 15 Jan 2013 18:49:29 +0000

Agree with Gitacarver. Petty theft is still theft.

The part about 35 years (or even life!) is wildly exaggerated. You only get there if you are convicted on and then the judge sentences you to the the maximum for every single count. First of all, the maximum is rarely given out. Second, in a case like this, the different counts are simply different theories for the same basic wrong, and the Sentencing Guidelines and judges treat them that way. Had he been tried and convicted, he probably would have gotten 2 to 3 years, maybe less.

By: gitarcarver

gitarcarver — Tue, 15 Jan 2013 17:42:32 +0000

aaaa,

The JSTOR business model was that they sold licenses to people so others could download papers at a certain rate.

If Swartz released all of the papers, he would have killed the business model of JSTOR.

Furthermore, Swartz did not simply “download” articles, he put a tap on a data line. When MIT noticed his activities, they banned him from the network. He returned. When they killed his MAC address, he spoofed that to get past that security measure.

The bottom line here seems to be that despite Swartz knowing his actions were illegal, he continued to do them. When caught, he was faced with jail time. We can argue whether the jail time was excessive, but according to the WSJ, Swartz didn’t want to spend ANY time in jail at all. Therefore the length of time he would have served is somewhat of a misdirection as even 15 days in jail was too much for him in his mind.

The question is whether Swartz broke any laws. It seems clear he did. He wanted a pat on the head and instead was looking at silver bracelets.

I am sorry the guy took his life, but for those who are trying to pin his reaction on prosecutors for knowingly committing a crime, and getting caught seems misplaced to me.

By: aaaa

aaaa — Tue, 15 Jan 2013 09:07:04 +0000

@Robert That analogy does not work. Unlocked house is not an open campus. It was trepassing at best and not a part of federal charges under the question. If we are talking about the closet he entered, then he took nothing out of it and destroyed anything.

Say I invite you to my house and tell you that you are not allowed to go to garage. You will go to garage anyway. What is the punishment you deserve and what is the maximum punishment you can get? That is the appropriate analogy – closet entrance deserve exactly the same punishment.

If we are talking about articles he downloaded, he was legally allowed to download any single of them. JSTOR and MIT knowingly setted up their network to allow such downloads.

Of course, he was not allowed or expected to download that many of them at the same time. Neither JSTOR nor MIT wanted or meant to act as free world wide distributors nor build their network to be able to handle such load.

Neither JSTOR, nor MIT, not Swartz could ever make the money prosecution claim to be stolen out of that articles. That idea is crazy. Which I guess is why JSTOR did not wanted goverment to prosecute Swartz and MIT kept silence instead of openly supporting prosecution.

Does it mean that any punishment at all would be inappropriate? Nope. If he would have to pay fine, have to do some community service, have been denied access to that campus or something similar, few would objected.

Charging him as if he would break into the pentagon, bypassed actual security devices and stole super secret materials with the intention to sell them to terrorist is what the outrage is about. Neither was it bank robbery nor manslaughter.