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Aaron Swartz’s Prosecution in violation of International Law and Equity

Death of a crusader!

English: Aaron Swartz at a Creative Commons event.

English: Aaron Swartz at a Creative Commons event. (Photo credit: Wikipedia)

Aaron Swartz was a champion of the cause of free information. More so the freedom from intermediaries. First about his recent cause. JSTOR is a website which holds more than 1,400 journal titles in more than 50 disciplines from about 800 Universities, in a digital format. The authors of these articles get nothing from sharing their content but the JSTOR pays to the Publishers for participating the content in its database. BTW JSTOR also charges a fee for accessing its content.
Aaron was bulk downloading the contents via Massachusetts Institute of Technology’s  data network. JSTOR discovered and caught hold of Aaron. The matter was settled and Aaron returned the downloaded content to JSTOR. After the civil dispute between the affected parties was over, FBI arrested Aaron alleging wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer and claiming to be acting under Computer Fraud and Abuse Act {18 U.S.C. § 1030}. The question is:

Was prosecution of Aaron, even if legal, justified in overall circumstances? or was it a persecution to deter him from being a crusader of free information cause?

Background of Copyright law in the world.

The first copying agency in the world was a printer and Stationers/booksellers were the forefathers of present day publishers. As was the practice then, as is now, influential groups were/are able to get laws enacted in their favor. The first copyright law was created through Royal Charter in 1554. However the first Copyright Law to grant ‘sole right and liberty of printing of books‘ was enacted in 1709. Until 1911 Act, the author had no right except to be exploited by Publisher. It was only thereafter that gradually rights in favor of authors were created under subsequent legislations. As an author, I know how difficult it is to make money, in the face of unscrupulous publishers who find ways to sell the content without sharing the revenue, even today. So what JSTOR is doing is to exploit the work of millions of authors by charging a fee to read their articles without sharing the revenue with the authors but sharing the revenue with publishers. Who said the world has changed?

Law against windfall profits

We talk of being civilized and a modern society. We also claim that we are compassionate about human beings on earth but we have no law prohibiting windfall profits which are generated by exploitation of freely available resources by manipulative release of such resources. There has to be a reasonable return of investment say about double the rate of interest but exploitation of free resources to create billionaires while billions of people in the world sleep hungry is shameful. What Aaron was doing was his own civil disobedience against a regime engaged in such exploitation of resources.

History of pacer

A past venture of Aaron has interesting facts. Following is extracted from his Wikipedia page:

In 2008, Swartz downloaded, and released, approximately 20% of the Public Access to Court Electronic Records (PACER) database of United States federal court documents managed by the Administrative Office of the United States Courts. PACER was charging 8 cents per page for information that Carl Malamud, who founded the nonprofit group Public.resource.org, contended should be free, because government-produced documents are not covered by copyright. The fees were “…plowed back to the courts to finance technology, but the system [ran] a budget surplus of some $150 million, according to court reports,” reported the New York Times……….Swartz visited the 7th U.S. Circuit Court of Appeals library in Chicago and installed a Perl computer script. From September 4–20, 2008, it accessed approximately 18,000,000 documents and uploaded them to a cloud computing service. He donated the documents, amounting to 19,856,160 pages, to Malamud’s public.resource.org. …….Swartz’s actions were subsequently investigated by the FBI. The case was closed after two months with no charges filed.

As may be seen from above, if as reported by New York Time, it is correct, the court administration was also making windfall profits from citizens from use of its records! Amazing!

International Law on breach of civil contract

Actually and literally what was the breach committed by Aaron? He violated his “Terms of Use” of database with the JSTOR and MIT. Nothing more should be read into it. A computer is not an electronic safe that if accessed by anybody in an irregular way or if over used it may be treated at par with violent crime. It is a shame that a country having such high rate of violent crime is wasting its resources on persecuting inconvenient intellectuals. Unfortunately all laws against hacking are draconian or subject to draconian interpretation. This is true of all the countries. It is unfortunate that appropriate Mens Rea or requirements of Guilty Mind are not insisted upon in such laws. Such prosecution is also against the spirit of international law on Human Rights.

United Nation’s International Covenant on Civil and Political Rights exist since 1966 but the United States ratified it only 1992 with such dubious conditions/reservation that validity of its ratification is itself is a matter of debate. Article 11 of the said covenant states:

No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

In the absence of any motive of theft for misappropriation and especially when the affected party had settled the dispute by coercing the Aaron to return the downloaded material, over which JSTOR had no legal copyright, criminal prosecution apparently was with the motive or reining his crusade to make information free. Unfortunately Aaron took the matter emotionally to conclude that the world is so unfair that it is not worth living. But that is why we all have terminal life span, Alas! he is no more. We will miss his zeal for the cause, even if we have not personally met him.

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About Sandeep Bhalla

A lawyer, thinker, author, Linux/Ubuntu power user but often an economist or gardener or philosopher or cook or photographer depending upon the current thought and environment. View all posts by Sandeep Bhalla

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