The Four Crimes of Aaron Swartz (#aaronswnyc part 2)

The law is such an idiot when it comes to the internet. You can hardly expect better, since it was written in prehistoric times and is being maintained by people who lack many clues. And so to discuss crime and Aaron Swartz, it's useful to distance ourselves from definitions of crime that involve legality. There's a lot happening on the internet that's completely legal and very criminal, and there's also rampant illegality that should't be considered a crime.

Crime is really about upsetting or undermining a social construct. Stealing violates our social construct of property. Assault, murder, or hurting people in any way violates our mutual compact to live and let live. Social constructs vary in their utility and their generality. The most broadly useful get codified into laws. Some of the others do, too. When circumstances change, some of the social constructs need to be set aside and new ones constructed.

We're left with moral calculus. Here's my definition of moral calculus: it's anything you can't explain to an 8 year old about right and wrong, because the 8 year old isn't corrupt enough to believe it. It's an adult's set of excuses for doing or not doing the right thing. We need these excuses because our world is imperfect.

My first conversation with Aaron Swartz had me playing a "good cop" role. I needed to explain to Aaron how some of his mass-downloading was getting people really upset and could have negative consequences for the things he was trying to accomplish. If he would just ask, I told him, he could have an account for an API that DIDN'T crash to smithereens when asked for millions of records. And people were working really hard to make the information he wanted free, it just needed some years to make sure the machinery wouldn't collapse. Aaron sounded embarrassed. I sounded embarrassed.

I told him stories about I had once crashed Harvard's library system while doing some tiny little tests. Was that a crime? It wasn't MY bug. Maybe Harvard lost use of its catalog for a few hours in the middle of the night was that such a big deal?

I've also fixed crashes in the middle of the night. Believe me, you don't feel very charitable about the idiots who attack your system. The IP addresses usually say they're from Russia or India or China, but 99% of the time they're bots looking for something you don't have, so you make sure your system is robust enough to deal with some nasty tickles, and you go home and sleep soundly.

And apparently that's what happened to the folks at JSTOR when Aaron started his systematic downloading aimed at them.

So let me tell you a bit about JSTOR. JSTOR is a non-profit organization whose mission is to make scholarly information available in digital form, not just today, but into the future. And they do what they do very well. Almost too well. I had a business developing hyperlinking technology for libraries. The links to JSTOR worked quite well. There was no crashing of THEIR system when I reverse-engineered it. But they also took a legal stance that in order to link to them you had to have a legal agreement. I thought it was dumb, but they insisted on rigorous testing of my links before officially letting my system link to theirs. The result was better linking that benefitted everyone.

JSTOR's business model is to charge subscription fees to libraries to enable access to the articles they've digitized. Part of the fees are passed to their journal-publishing partners. And they make assurances to the partners that the intellectual property rights in these journals will be not be compromised. Their nightmare is that some third-world hacker will download all the technical articles and make them available in regions where it might be difficult for JSTOR and their publishing partners to assert their copyrights.

So of course JSTOR noticed Aaron's downloading articles and blocked the IP address he was using. Most likely that block affected lots of other people. And they contacted the MIT library to find the source of the mass downloading. Dealing with this kind of thing would have been a routine matter for both JSTOR and MIT Library. It's a common occurrence that someone acquires a proxy-server password from a friend and proceeds to download some journal they need for their research someplace that can't afford its own deluxe JSTOR subscription. So Aaron's first crime in the JSTOR affair was that his actions resulted in the loss of access to JSTOR for some part of the MIT community and loss of productivity at JSTOR and MIT Library. That's inconsiderate, but not illegal. Both MIT and JSTOR had legal obligations to do what they did. Aaron was just using guest access at MIT, so he wasn't bound by any institutional terms of service. And his robot wasn't reading JSTOR's website terms and condition.

Aaron didn't stop his downloading when MIT and JSTOR cut him off, alas. I think he was having too much fun eluding his pursuers. He didn't have to do anything terribly sophisticated, but it would have driven the network administrators crazy. There's nothing worse than having a hidden agent on your computer or on your network. Because even if it's not going anywhere it's not allowed to go, if you don't know where it is or what it's doing, you suspect the worst. You start doubting everything, and everyone, and you can lose your sanity. So that was Aaron's second crime. Diving people crazy via self-doubt is a crime in my book. But not illegal.

But why the reasonably good non-profit JSTOR? Why not attack Elsevier or some other for-alotta-profit publisher? My guess that Aaron's interest in JSTOR was its trove of public-domain articles. Once he had possession of the public domain articles, Aaron could commit a perfectly legal crime. He could distribute the digitized public-domain articles on the internet, for free. Executing a hack of the legal code was in character for Aaron, he had done it successfully with PACER.

While it's most likely legal, "liberating" JSTOR's public domain collection would be Aaron's crime number three, because it undermines an accepted social construct. It doesn't seem wrong to me for JSTOR to recover its digitization and distribution costs by charging willing customers for access. But there's an opposing argument that this information is part of our heritage and that it's immoral to deny people access to information they need, just because you're poor or you don't have connections to a fancy institution of higher learning, or you live in a country that struggles with subsistence or because you're only 13 years old. Those who build on the public domain have a special obligation to respect Tim O'Reilly's "create more value than you capture" rule.

It seems that JSTOR has accepted to moral burden of this argument. It's taken important steps to make its public domain corpus available to everyone. The great thing about moral calculus is that you can change it.

The fourth and final crime of Aaron Swartz was to commit suicide. That's the crime we're most angry about.

My last conversation with Aaron Swartz was at the SOPA protest in Manhattan a year ago. I congratulated him on the fruits of his activism. I told him about Unglue.it and our plans to make ebooks free to the world with crowdfunding. He loved the idea, and made me promise to let him know how it went. It's going ok, Aaron, but we could really use some help.

OK Go's @damienkulash sings at #aaronswnyc
CC BY-NC-SA by Schwartzray

Edward Tufte was a Proto-Phreaker (#aaronswnyc Part 1)

In December of 1962, Edward Tufte, who we now know as the Display of Quantitative Information guy, was an undergraduate at Stanford. He and a friend, an electrical engineer, had figured out how to trick AT&T's telephone system into allowing them free long-distance phone calls. Their "blue box" had vacuum tubes, capacitors, resistors and switches in a plug board, but it made the multifrequency tones used by the telephone switching network to control long distance calls.

Tufte and his friend decided that they would make the longest long distance phone call in history. They called New York "Time of Day" via Hawaii, and left the call open for about two months. (For those of you youngsters who don't know what "Time of Day" was, it was a number you called, and a Bell System female voice would say "The time is now ____ and ___ seconds". And would repeat every 10 seconds.)

A couple of months later, Tufte got a phone call from a security executive at AT&T. "I think I know what you're calling about" said Tufte. The caller was a bit of a techy, and expressed admiration for the pair. Some graduate students at other universities had done similar things, but Tufte and his friend were the first undergraduates. And he complained their system was of poor quality. The amount of noise in their oscillator made it hard to for the AT&T security people to figure out what they were doing.

But why did they shut off the call? the AT&T guy asked. "Once we had set the record, we were done" said Tufte.

AT&T could have ruined Tufte's life by bringing in the police, but they didn't. They made sure that Tufte and his friend told no one, didn't try to sell their system to the Mafia, and didn't cause anyone harm.

Edward Tufte on January 20, 2013
CC BY-NC-SA by Schwartzray

Except for a few late-night cocktail parties, Tufte never told anyone the story, until tonight, at the New York City memorial gathering for Aaron Swartz. Tufte had gotten to know Aaron at Stanford, where Swartz was briefly a student. As Tufte tells it, Swartz had been faced with a dilemma- a final exam conflicted with a Tufte lecture. Somehow Swartz made it to both.

After Swartz's brush with the law when he was caught downloading JSTOR articles at MIT, Swartz gave his friend Tufte a call. "Would you happen to know Bill Bowen?" Of course Tufte did, dating to his early career as a professor at Princeton when Bill Bowen was serving as its President. Apparently Bowen had been asked by the Mellon Foundation to help JSTOR figure out what to do about the Aaron Swartz situation. As President of the Mellon Foundation, Bowen, now retired, had helped create JSTOR.

So Tufte decided it was time to out himself as an ex-phone phreaker. He wrote Bowen an email. If AT&T could decline to ruin Tufte's life, maybe JSTOR could find the courage to make sure that Swartz's abilities would not be wasted. Tufte was phreaking before Captain Crunch, before Steves Wozniak and Jobs. Those guys turned out to have lots more to contribute.

JSTOR did the right thing. Not only did it tell the Federal prosecutors that it had come to a satisfactory arrangement with Swartz, but it took significant steps to advance Swartz's (and JSTOR's!) agenda af making information more accessible to everyone. (more on this in Part 2, tomorrow)

But apparently MIT wasn't quite as happy about the situation. And Stephen Heymann, a prosecutor in a US Attorney's office that's been described as one of the nation's most immoral, wanted Swartz's conviction for his resumé and wouldn't let go. They let loose a superseding indictment containing 13 felonies, and threatened Swartz with 35 years in prison if he didn't plead guilty to felonies and serve jail time.

Under the pressure of prosecution, and in the stupidity of a no-win situation, Aaron Swartz committed suicide a week ago. We'll never know what he might have contributed in his next 26 years.

But the relentless and disproportionate prosecution of young, computer-adept disruptors continues.

Sitting just behind me at the memorial was a fellow known as "Weev". Weev looked a lot better than his mug-shot, but he's been convicted of a felony and faces 10 years in prison for "identity theft" which is all that's left of a prosecution stemming from his exposure of a security hole in AT&T's implementation of iPad signups. That's right, AT&T screws up their security, and Weev gets prosecuted because because he's acted inconsiderately and used IRC without thinking how it might sound to a prosecutor.

The outrage that simmered at the memorial service tonight will probably explode and ruin Stephen Heymann's life; the career of Carmen Ortiz, the head of the Massachussets Prosecutors office, is officially toast. It's mean, but I'll probably enjoy reading about how sad that is. But there are still real people feeling the boot of a system that doesn't want to change itself to apply justice to a changing world. Maybe we should help them.

Update (1/20/13): @dancow has posted a transcript of Tufte's remarks.
Update (1/22/13): corrected description of signaling network based on contributed comment
Update (7/29/13): somehow I missed the publication of Phil Lapsley's Exploding the Phone. Oh, and don't miss the episode of Radiolab from a year ago on Joybubbles.

2012: Libraries Not Dead Yet

My summary for 2010 was titled "Libraries are still screwed". And then in 2011, the ebook wars broke out. It was like "Attack of the Clones". Despite the collapse of the Border worlds in the face of the trade federation's robot armies, the Jedi Knights of the Reading Republic seemed to have the situation in hand. But when you see Senator Padmé Amidala, Representative of the people of Naboo, clasp Anakin's cold metallic mechno-hand, thinking they could live happily ever after, everyone in the theater is thinking "she is sooooo screwed."

It was September of 2011 that Amazon made a play for the affections of the library world, making a deal with Overdrive to make Kindles compatible with ebooks sold to libraries.  Somehow the library world was so flattered by the attention of this youthful, rebellious suitor that it failed to see the dark side of the force. Just two months later, Amazon introduced the Kindle Lending Library, demonstrating the too-inviting vitality of the lending business model for ebooks.  All of a sudden, getting an ebook from a library involved paying a tribute of personal information. People started wondering why we still needed libraries when Amazon would lend us books and Google was giving us everything else.

A more appropriate cinematic analogy for the library world in 2012 was Revenge of the Sith. The publisher trade federation, having thrown in with the Dark Lord of Cupertino, began to secede from the reading republic. Then it was Penguin, expressing anger over Amazon's dalliance with libraries by withdrawing from the Overdrive lending program. Random House took its turn soon after. While expressing deep love for libraries, it began to empty their pockets thrice for every ebook they would buy. Hachette piled on.

Many layers of ambiguity shrouded this conflict. Was Apple the leader of a trade federation conspiracy, or was it Amazon and the Department of Justice that had the republic's best interests at heart? Was the delegation from the senate a hopelessly naive and powerless waste of time, or did it contain the germ of a new hope?

Amazon almost crushed unglue.it like a Federation transport on a clumsy Gungan, but it bounced back like a booma full of plasma.

Meanwhile, a pirate queen, E. L. James, slithered her way across the best-seller lists like a Hutt, leaving a trail of treasure for the dungeon-masters at Random.

In other corners of the internet, people were starting to speak of revolutions. From his cantina of independent writers and other odd characters, Mark Coker smashed words and landed unlikely books from worlds beyond the reach of the trade federation into the hands of everyday readers. And his quiet overtures to libraries may turn out to be seeds of a much greater rebellion.

Libraries themselves faced threats from all sides. In some cases, librarians were sacrificed before the  altar of apparent change, but most of the people saw them as bastions of hope in difficult times. Even when hundreds of thousands of website clamor for eyeballs, people still look to libraries for guidance and shelter. Though "reference" in public libraries is declining, overall library usage has actually increased. Maybe it's because so many bookstores have closed, and libraries remain a last refuge of the book lover. Maybe it's the free internet without the incessant Starbucks music. Maybe it's the author at the next table that nobody's ever heard of.

Meanwhile the flight away from printed books has slowed. I'll admit it- the last few books I've read have been books I last read in college, and I still have them. They're old friends with yellowed pages and a musty smell. Science fiction by Asimov and Niven, written decades before George Lucas ever had the nightmare of Jar Jar Binks.

And even the trade federation seemed to soften. Penguin returned to library lending with a new partner, 3M. Macmillan said that it too would begin a library lending program. And meetings with a delegation from ALA's Jedi Council seemed promising.

Jeff Bezos is not the Dark Lord and he's unlikely to issue Order 66 to his army of Kindles. The Random Penguin is not erecting an impenetrable ebook blockade around libraries. But the times ahead will see many more institutions fall into irrelevance and decay, and will see others find new and greater purposes. For 2013, we can't rely on high midi-chlorian counts or light sabers. We have to build up some new things. That Death Star isn't going away all by itself.

Einstein's Never-Ending Copyright

Photo by Miroslav Duchacek CC-BY-SA-3.0 

In my post on Quantum Copyright, I promised, in my following post, to cover the impact of Special Relativity on Copyright. I was joking. I had no intention of putting words in Einstein's mouth about our copyright laws. How silly would that be?

Have you ever tried NOT THINKING ABOUT GIRAFFES? It's just hopeless. So here you go:

In special relativity, the passage of time depends on your frame of reference. Time is relative, and simultaneity of events can't be defined except relative to their respective reference frames.

So suppose I take a book with me on a spaceship that moves at 99.99% the speed of light relative to your reference frame. Then every day that elapses for me is about 71 days for you. In two years or so, the book goes out of copyright, and the next planet I visit, I can make copies for every sentient being I can find.

Seems a lot of trouble when I can just put it on BitTorrent.

Ah, but imagine that I'm a world-famous trillionaire author, and I'm worried about the day when my best-selling novel goes out of copyright, and everyone can just rip me off? All I have to do is buy myself a spaceship and go for a vacation. Since my copyright won't expire till 70 years after my death, my hypervelocity excursion will dilate my copyright term for a long, long time. When I get back a year from now (in my reference frame), 71 years will have elapsed on earth, and with the royalties I'll have earned (plus interest) I can probably acquire every other book on the planet. And both houses of Congress. I won't have aged much, so I'll just go on another interstellar jaunt. Rinse and repeat.

Start saving up, Jo Rowling.

For the rest of us, the bright side of this is that we can be pretty sure that copyright law will get be updated at least before interstellar drives are perfected.

Heisenberg's Uncertain Copyright

If you participate in LinkedIn, you've been recently deluged with requests to endorse the skills of people in your network. I decided to have some fun with that, and listed "Quantum Copyright" as one of my skills. To cement my claim to be the world's foremost expert in quantum copyright, I decided to examine the microscopic question of where copies occur. The closer you look, the more uncertain the location of the copying becomes!

It turns out that where a copy is made has consequences. Consider Fitzgerald's The Great Gatsby. A recent LibraryCity blog post by David Rothman suggested that Bill Gates should use a tiny bit of his fortune to buy out the remaining copyright of Gatsby, supposedly one of Gates' favorites. On Unglue.it, 70 ungluers share the sentiment that The Great Gatsby should join Huckleberry Finn as a great American novel that belongs to all of us in the public commons.

Funny thing is, The Great Gatsby already belongs to every Australian, in the sense that Australians have the right to read and copy it for free without anybody's permission. In the US, it belongs to the CBS Corporation, and if you want to read it on Kindle, it'll cost you $7.80.

If you copy Gatsby in Australia, no problem, it's cool, because Gatsby has entered the public domain. There's an excellent version available from Project Gutenberg Australia. If you do it in the US without permission from CBS, it constitutes copyright infringement and is punishable with jail time and statutory damages up to $150,000 per incidence of infringement. So it really matters where the copying occurs.

click to beam

But we live in an era where books can be transported from one location to another without one of those Star Trek machines which turn goofy aliens and crewmen into particle beams. It's no longer obvious where copying occurs.

Suppose you have a book sitting on a computer in Australia. The computer breaks the book into thousands of UDP packets and sends them into the Internet. Copying can't have occurred yet, because the packets aren't fixed in any form. For copyright purposes,

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed. http://www.copyright.gov/title17/92chap1.html

Now suppose the packets are reassembled on my hard drive in New Jersey. A copy of "The Great Gatsby" has materialized. Has a copyright been infringed? If I was in Australia and the source of the packets was in the US, would the answer be different?

click to beam

I don't know the answer; I am not a lawyer. But I'm an engineer and I can read and I understand the communication processes that have occurred in the book transporter. I'm pretty sure that copying has occurred, and that part of the copying process occurs in a location where no copyright attaches to The Great Gatsby.

Maybe it doesn't even matter where the copying occurs. Maybe it depends on who's in control of the copying. In the age of quantum copyright, action at a distance is not at all a problem. Here's what US Copyright law says:

The owner of copyright under this title has the exclusive rights to do and to authorize ... to reproduce the copyrighted work in copies or phonorecords;

You could read that as saying only that nobody other than the copyright owner and subject to the jurisdiction of the statute is allowed to reproduce the copyrighted work regardless of where reproduction occurs. So if the person doing the copying is in Australia, maybe it doesn't matter where the copying actually occurs.

So we have 8 different quantum copyright location scenarios; 6 have uncertainty as to the fact of infringement:

1. Person copying, copy source, and copy destination all in US. (US law controls!)
2. Person copying, copy source, and copy destination all in Australia. (Australia law controls!)
3. Person copying and copy source in US, copy destination in Australia.
4. Person copying and copy source in Australia, copy destination in US.
5. Person copying and copy destination in US, copy source in Australia.
6. Person copying and copy destination in Australia, copy source in US.
7. Person copying in US, copy source and copy destination in Australia.
8. Person copying in Australia, copy source and copy destination in US.

You could also be a cynic and say the only thing that matters is where the judge is sitting. But really, this whole situation with territorial copyright variation is ludicrous and prehistoric and we really should be spending our time and money curing malaria instead.

Next week: copyright and special relativity. In what frame of reference do copyright terms exist?

Notes:

• Kirtsaeng is another issue entirely. (But see comments.)
• In January I wrote about the intersection of SOPA and copyright territoriality. I hope that's a moot issue!
• Techdirt is covering Australia's review of its copyright laws.