Aaron Swartz followup: Can we get government out of the copyright enforcement business?

A few journalists have called recently to ask about Aaron Swartz. Some have asked for my personal thoughts on whether I thought MIT was right to cooperate with the Secret Service in investigating and arresting Aaron. I didn’t know the facts well enough to offer an opinion but I began wondering why MIT, with its $10 billion in the bank, and JSTOR, with its thousands of paying customers, need assistance from the government in pursuing alleged copyright violators?

It is easy to see why murder cannot be efficiently addressed by a civil lawsuit. Money damages won’t replace a lost human life. The survivors of a murder victim may not have enough money to file a lawsuit. A copyright violation, however, never involves someone’s death or physical injury. A publisher claims to have lost some money because of an individual’s or a company’s action. Copyright holders can be some of the wealthiest individuals (J.K. Rowling!) and enterprises (Disney) on the planet. They have drawers full of lawyers and it is not obvious why they need taxpayer-funded government lawyers to fight their battles for them.

Yet ever since 1998, when Bill Clinton signed the Digital Millennium Copyright Act (see this analysis for some things that are illegal under this law alone), taxpayer-funded attorneys and investigators have been tasked with ferreting out and stopping an ever-broader range of conduct. If you buy a DVD, copy it to your laptop so that you can watch it on a plane, and never show it to anyone else… you are a felon.

Copyright owners, such as Disney, grew to fabulous riches during an era [pre-1998] when they had to pursue copyright violations mostly as civil matters. Why not scale back on some of these criminal laws and let copyright holders pay their own costs of enforcement via civil lawsuits?

One argument against this proposal of re-privatizing copyright enforcement is that small publishers don’t have the drawers full of lawyers that MIT and Disney have. But in fact the federal government’s massive armamentarium is not available to small publishers. If I call up the U.S. Attorney’s office here in Boston and say “A publisher in Framingham has stolen my 2003 posting about why we don’t need friends [I intended it as humor, but 68 commenters took it seriously!]“, I seriously doubt that they would send the Secret Service over to the evildoer’s house.

Copyright infringement is taken seriously only in those cases where the material infringed was valuable. If the copyrighted material was valuable, by definition the owner was wealthy. If an owner of property is wealthy, by definition he she or it has enough wealth to protect those property rights via a civil lawsuit. Does it make sense to tax a Walmart cashier in Alabama to pay a federal prosecutor and Secret Service team to do a job that was formerly done and paid for by private sector workers?

11 Comments

  1. Chris Wood

    January 16, 2013 @ 7:53 pm

    1

    Ironically, the reverse situation of intellectual property rights where big corporation infringes on an individual’s patent is limited to civil litigation.

  2. Bas Scheffers

    January 16, 2013 @ 7:55 pm

    2

    Does copyright infringement get dealt with my government?

    My impressions was that the government only got involved if you:

    - Counterfeit (e.g.: sell copied DVDs)
    - Obtain the materials through forcing unauthorised access to system.

    (Yeah, the latter is very simplistic here)

    Either way, the Schwartz case is an abomination, MIT should have never called in the feds and the feds should have never laid such ridiculous charges.

    What’s next, 35 years in jail for wandering past the ticket booth of a museum and taking a few photographs of artworks for your own viewing?

  3. wiki leaks

    January 16, 2013 @ 11:52 pm

    3

    “Swartz was charged by Carmen Ortiz, the U.S. Attorney for Massachusetts, with wire fraud, computer fraud, unlawfully obtaining information from a protected computer and recklessly damaging a protected computer.”
    “After his arrest, JSTOR put out a statement saying it would not pursue civil litigation against him.”
    “The case tested the reach of the Computer Fraud and Abuse Act, which was passed in 1984 to enhance the government’s ability to prosecute hackers who accessed computers to steal information or to disrupt or destroy computer functionality.”

    Above taken from his Wikipage. I still say that Mr Swartz was pursued so vigorously because his association with Wikileaks. Government has gone to great lenghs to go after anyone associated with them.

    On side note most egregious copyright judgement was Monsanto vs. canadian farmer
    whose only crime was that his fields were next to Monsanto GMO fields.
    Monsanto won the judgment of theft and copyright infringement because GMO dna
    was found in the farmer field because Monsanto send detectives to trespass into private property.

  4. anon j moose

    January 16, 2013 @ 11:56 pm

    4

    I bet that if you called up the U.S. Attorney’s office and said someone is stealing that 2003 posting by using your network, and that whenever you try to block them they deliberately evade those blocks, and they have also been attaching hardware to your network and trying to hide it, then they just might indeed bring in the Secret Service.

  5. fwilson

    January 17, 2013 @ 8:49 am

    5

    I agree, but you have to consider the ties between copyright holders and politicians. For example, David Geffen is a friend of Barack’s from a long time ago who helped fund his presidential campaign when it was still a long shot. Haim Saban, the Mighty Morphin Power Rangers mogul, is perhaps the biggest Democratic donor. I could go on and on. Quid pro quo.

    By the same token, you might expect the Republicans not to support enforcement of copyright law, but they don’t seem to be very shrewd.

  6. dk

    January 17, 2013 @ 9:05 am

    6

    Is it a violation (or grey area) to rip your CD collection and put it on a cloud somewhere? A friend and I got into an argument about this a couple weeks ago. I thought it might be a grey area at best, but to be honest I’m not really sure…

    Thanks.

  7. philg

    January 17, 2013 @ 11:46 am

    7

    dk: Music on CD does not fall under the same restrictions as a video on DVD because the CD does not need to be decrypted. “Home taping” as it was once called was a gray area for decades but in the early 1990s the music industry obtained a tax on blank digital audio tape. As part of their new tax, to be collected by a new federal bureaucracy and then distributed to various music industry groups, they had to give up the ability to sue consumers for home taping (since it doesn’t make sense to tax people for an activity that is illegal).

    [The digital audio tape tax turned out to be irrelevant to music, of course. Most digital audio tape was purchased to back up computer systems and/or for amateur musicians to record their own voices. Most copying of music digitally was done with conventional PCs and hard disk drives.]

  8. Dan Weber

    January 17, 2013 @ 2:45 pm

    8

    On side note most egregious copyright judgement was Monsanto vs. canadian farmer
    whose only crime was that his fields were next to Monsanto GMO fields

    No, his crime was deliberately acquiring seed, then telling employees to hit the crop with Roundup and salvage what was left and replant the remaining seed.

    You like Wikipedia so much, you should check out the page: http://en.wikipedia.org/wiki/Monsanto_Canada_Inc._v._Schmeiser#Initial_trial_and_appeal

    98% of his crop was Roundup Ready. This does not happen by accident.

    Also, while we should wait for Hal Abelson’s report, right now it seems that MIT called in the police in order to help stop someone who kept on breaking into their network.

  9. dk

    January 19, 2013 @ 11:25 am

    9

    Thanks for the reply. Phil, but I’m still uncertain. Is ripping your CDs to the cloud definitely legal? (for personal use? For sharing?)

  10. philg

    January 19, 2013 @ 1:49 pm

    10

    dk: Hmm… I’m not sure about your second question. Is it “home taping” when the data are stored outside of your home. I think if you aren’t sharing it with others then it is probably legal. You haven’t busted any encryption scheme. Sharing it publicly seems to be illegal since the music industry has successfully prosecuted users of peer-to-peer systems (the children of Napster). Sharing it with a few friends? I don’t know! I would suspect that the music industry has slipped something into the variety of new laws since the mid-1990s that would make that illegal but I am guessing.

  11. QT Luong

    January 28, 2013 @ 2:19 pm

    11

    Copyright infringement is always taken seriously provided that the copyright owner is serious about his copyrights, which means registering them. Courts award substantial statutory damages even for infringement of materials which have not proven themselves to be “valuable” on the market, to discourage future infringements. Although the legal actions happen in federal courts, I don’t think the US Gov gets involved if it’s just infringement (rather than, for instance unauthorized access, as in the present case).

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