Not to mention it makes it sound like Ortiz was cooking this all up behind closed doors and everyone else was shocked! shocked! to realize how the "prosecutorial misconduct" had gotten out of control, when this is the way DoJ does everything it touches and everybody knows it.

That wasn't the way things played out. With this (as with the movement against SOPA/PIPA), we can see an embryonic new power arising in the Internet, a power which can drive mainstream media coverage which in turn drives political decision-making.

This week, at least, the lawyers' worldview was proven wrong and the hackers' worldview was proven right, in both the empirical and moral senses of the terms. Let's hope that continues.

I've seen more prevaricating (and sometimes outright lying) this week from the hackers than from the lawyers so I, for one, hope that the lynch mob ceases immediately.

Ever since Aaron killed himself people have been saying the most logically unsound things about this case and others. Such as: he was a hero, he didn't commit any crimes, others who did similar things were not criminals, copyright shouldn't even exist, MIT is evil for not not caring about the breach, calling other cases bogus because the perpetrator was a young programmer, and so on. Many of the people commenting seem so out of touch with reality that it looks like trolling.

It's all the emotions. Makes it hard to write a sound argument.

Please consider the notion of civil protest. After all, this great country started by throwing the English tea overboard. To defend this view I would like to say that:

1. he was not personally profiting from the act

2. he was doing it for the betterment of society

Illegal things are sometimes morally right, and legal things morally wrong. We need to raise above the laws when they don't fit reality any more.

This is the logic that was used to colonize (er, "civilize") the "savages" of Africa and the Pacific.

So no, I refuse to subscribe to the idea that because he felt that it was better for everybody that it was his job to force it on everyone else.

You know what else the American colonists did to the English, right? They tarred and feathered them, burned down their houses, and many other forms of not-quite "civil" protest. And they did this in response to far worse transgressions than "those JSTOR assholes make me go to a public library to read this peer-reviewed literature I wouldn't know what to do with".

When the comparison is made against governments, that is bad, but it is okay to make such comparisons against the people. Sickening.

The cause of this discrepancy is an unhealthy worship of the law and government that many people seem to have acquired.

* "They were pushing for 35/50 years in prison"

* "This is just like using my neighbor's Wifi"

* "They were trumping up charges to make an example of Aaron" (before you downvote, read Kerr's posts).

* "They were aiming for harshest possible sentence"

* There was also the very nice individual who doxxed Ortiz, who I'm sure is a fine representative of all that is right with hacktivism.

And on and on.

And in the meantime there has been very little commentary over the major (not only, but major) cause of this (untreated depression), presumably because that doesn't play into the agenda. Likewise there is little discussion on ways to amend CFAA to make it better-aligned with what we intuitively feel would be appropriate (because in the hacktivist mold the only good change would be to repeal CFAA entirely). Feel free to say I'm seeing it wrong, but I don't think I am.

Actually it has been discussed. As per his father:

""" Bob Swartz also dismissed the notion that his son had a depressive personality.

"He had never been diagnosed as having depression; he was never on medication for having depression," Swartz said.

Aaron Swartz's mother had been hospitalized in December 2011 after having a bowel obstruction and going into septic shock, Bob Swartz said. She spent several weeks in a coma, four months in intensive care, and two more months in the hospital.

"So the notion, the narrative that people are going to say -- is that he’s somebody who just has depression -- is just wrong. You’d be depressed too if you were under a 13-count federal indictment and you go see your mother, who’s in a coma."

And either way, Bob Swartz is not exactly a disinterested party here.

I've lost a child to SIDS. I can guarantee you as a fellow parent who has lost a child that being able to point a finger at some person or persons who are responsible feels much better. You lose a child to something like SIDS or depression and you feel helpless, just utterly helpless. What else do you expect him to say, "oh yeah, he seemed real withdrawn last time we talked but I guess I just didn't notice"?

But looking from the outside, are we really supposed to conclude that someone who killed themself based on a 6 month prison sentence had nothing else going on inside? Do other men never have their parents die or become seriously ill?

Do people who aren't suffering from depression commit suicide? I'd always thought that (attempted) suicide was like the smoking gun for diagnosing depression?

As for depression, the federal case is the only part that is any of our business, and is the only part (that I know of) that provides some commonality of experience and results, as the feds can come after any of us for whatever three felonies a day they choose to do so. The prosecutors were helped by the PATRIOT act, after all, which covers more of us than Aaron's personal historical details and experiences. Aren't we allowed to talk about whether that's a troublesome umbrella to live under, and how it played out in a specific case?

You can't just say "every case is different" when the techniques can be the same between them. Forest for the trees.

If by "business" we mean keeping our brightest minds around to drive progress on the difficult issues of our times then we absolutely must take a holistic view.

If by "business" we simply mean advancing the goals of hacktivism then a focus on depression would certainly not help, I agree.

Those in office, even the appointed ones, really do need to care about what the people they represent think. I find that refreshing.

So what do we do? I support the demonization of Ortiz purely on the level of revenge. In a world where we typically have no agency, it's satisfying to make someone like her uncomfortable.

But on another level, it's frustrating that it's impossible to put the system on trial. It's unfortunate that by demonizing Ortiz, we play right into the hands of those who appointed her (and will appoint her successor) by making this out to be the fault of an individual. It makes it easier for them to act shocked, replace her, and be done with it.

I never met Swartz, but I'd be surprised if he'd have wanted his legacy to be people that look like him getting a pass while everyone else suffers the same as before.

I think it's been pointed out that he's popular (and thus, has "powerful friends") because they sided with him in trying to do good and improve things. This is a far cry from someone using their celebrity status to flout the law for personal gain, which is the sort of thing one usually condemns.

> I'd be surprised if he'd have wanted his legacy to be people that look like him getting a pass while everyone else suffers the same as before.

Well, that's why Reason magazine (among others) has endorsed Aaron's law to at least fix one part of this. We can't change the system all at once. But we should make whatever progress we can, one law at a time. Perhaps eventually we will go to something like the German system, which dispenses efficient justice without any use of plea bargains. HN was discussing that the other day as well.

Swartz thought that JSTOR was an illegitimate institution and he thought that justified him doing whatever he wanted to them. Why should prosecutors respect his moral judgments in that regard? He thought the law was wrong...so you think prosecutors should assume that everyone who thinks the law is wrong is "trying to make the world better"?

I get that lots of people here agree with him: they think JSTOR is awful and they think they're entitled to do whatever they want to JSTOR, the laws be damned. But why should prosecutors believe that?

that's why Reason magazine (among others) has endorsed Aaron's law to at least fix one part of this.

I believe that "Aaron's law" wouldn't have made any difference in his case at all.

I've seen people propose minor tweaks, but none that would have made a real difference for Swartz. And I've seen a lot of incredibly vague proposals that boil down to dramatically weakening prosecutors' power in criminal cases. But these are jokes: they're so vague that no one could ever advocate for them or they're politically impossible (Congressman, I write you today to urge you to make it harder for federal prosecutors to offer plea bargains for less than 1/5 the maximum sentence they're seeking).

If we take motivation into account (as the court did), does it change how you think she should have been treated by the court to know that she didn't keep a cent of the money herself, but spent it on giving food and clothes to homeless people, organising it herself rather than through a charity? She wasn't preying on the weak, she was misguided and trying to help society rather than get stuff for herself - and the law is supposed to be about protecting society.

Motivation is an important aspect of any crime, and prosecutors should be looking for appropriate sentences, not the harshest one they can make stick. Besides, his case is a focus point that gives an excellent chance to start looking for reform rather than sweep it under the carpet as 'business as usual' - because prison sentences in the US have exploded ridiculously in the past 20 years.

I don't think the prosecutors here would disagree. That's why sentences are pushed for (on both sides) based on what the motive behind the crime was.

There was a plea bargain on the table for no jail time, which MIT rejected, and then later some number of months in jail. Given that "Swartz faces up to 50 years in prison if convicted on all charges" was the latest maximum sentence it is very hard indeed to argue that the prosecutors were trying to get the harshest sentence.

The thing they were really trying to do was not have the trial, which is something I would expect them to do given the structure of the legal system.

Avoiding trials altogether because of the structure of the legal system is the wrong approach. Improving the expediency by which the legal system can provide justice is the right approach. I can't believe people are willing to sanction and even justify means that avoid justice. The fact that we have one of the greatest rates of incarceration that we have a failed justice system.

Except that a grand jury has to sustain that the charges are at least "better than tenuous". Once the case is resolved one way or the other the defendant can't be tried for it again (Constitutional 'double jeopardy') so the prosecutors have to bring any charges that can hold up (this is why Federal sentencing is wonky as well).

> Avoiding trials altogether because of the structure of the legal system is the wrong approach. Improving the expediency by which the legal system can provide justice is the right approach.

Uh, plea bargains are the #1 way the system is made more "expedient", you can't have your cake and eat it too. Feel free to continue putting words into my mouth about "sanctioning miscarriage of justice" though.

What the heck. Forcing plea bargains on 96% percent of accused is just so we can be "expedient" for the other 4%? How does that make sense? Other countries get by just fine without plea bargains. Maybe we could get expedience by, you know, focusing prosecution effort on serious crimes or ones that actually have victims.

> Feel free to continue putting words into my mouth about "sanctioning miscarriage of justice" though.

You might want to read up on how plea bargaining is viewed in other countries. There are some that are of the opinion that plea bargains are "miscarriage of justice", and you seem to be defending it as a perfectly fine practice.

(edit: not sure what I think on plea bargains generally. But in this particular case it seems pretty ridiculous.)

How is the prison industry to lobby for more prison-building if our current prisons aren't filled past capacity? If the accused are allowed their Constitutional right to a trial, we'll have to double the spending on courts just like we've doubled the spending on everything else!

Oh, wait...

http://bjs.ojp.usdoj.gov/content/glance/exptyp.cfm

I'm not sure that we agree on the meaning of the word "forcing".

> Other countries get by just fine without plea bargains.

Yes, I'm often reminded of how pathetic the United States is. But with that in mind those other countries have different concepts of the legal system (the vision of what it accomplishes, the policies, everything). I'm not here to claim that the U.S. legal system is 100% appropriate to the task, but instead that the prosecutors are going to the job with the resources that they have. If Congress significantly reduces the category and criteria of what counts as crimes by getting rid of the stupid stuff then great, but that's not the system the prosecutors are in now.

> Maybe we could get expedience by, you know, focusing prosecution effort on serious crimes or ones that actually have victims.

Do you have any specific cases in mind involving serious crimes or crimes with more deserving victims (since apparently MIT doesn't count) that were not prosecuted due to the resources needed being assigned to the Swartz case?

> You might want to read up on how plea bargaining is viewed in other countries.

Please don't take this the wrong way but I don't operate my life based on opinion polls. If I'm right, then I'm right, and if I'm wrong (which is certainly possible) it won't be because Bjørn and Herr Müller have different opinions about what plea bargaining is and is not, it will be because I'm wrong.

So basically, charge someone with something ridiculous, and then be offer a sweet sweet deal, such as "only 6 months jail time and confess to 15 felonies. Oh and if you want to go trial it will cost you and your family years of drama, all your savings, and risk 50 years in prison". How nice of them! Let's suppose someone offers you this deal. Does it even matter if you're innocent? Your life is going to be messed up either way. Maybe you cave under pressure and take the deal. How is that furthering the cause of justice?

Oh, and in theory, there's this little thing in the US called the Sixth Amendment:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence"

The charges weren't ridiculous. If Aaron wanted to avoid the trial he could simply have avoided repeatedly breaking into MIT's open network to access JSTOR. The charges (even the amended ones) were approved by a grand jury. The prosecutors were never pushing for 50 years in prison.

See, this is all part of what I complained about in my other comment about prevarication.

But either way, the point is kind of moot. Aaron chose to be in that situation, they didn't change the legal code just to suit him. Taking the plea would have been the smart thing but he was never under any obligation, as the sentence he would get in a jury trial would be based on the Federal sentencing guidelines (and his expensive attorneys could tell him that too).

Regarding the Sixth Amendment, plea bargaining is one of the tools used to ensure that those who do need jury trials have a chance at getting them expeditiously (or do you really think that Google really has a 5GB hard disk partition sets aside for everyone with a GMail account?).

They were according to a retired federal judge: http://www.wbur.org/2013/01/16/gertner-criticizes-ortiz-swar...

from the article:

"She says she was troubled by much of what she learned and saw from the bench before leaving in 2011. And she says Ortiz should not have prosecuted Swartz." ... When asked if she was referring to the bad judgement of Carmen Ortiz, Gertner responded, “That’s right.”

http://www.volokh.com/2013/01/14/aaron-swartz-charges/

http://www.volokh.com/2013/01/16/the-criminal-charges-agains...

You might instead argue that the law is ridiculous (e.g. I would agree that Swartz's conduct is not serious enough to warrant a felony conviction).

You might argue that there were certainly other cases which were more deserving of a U.S. prosecuting attorney's time (though I don't know how we would confirm or refute that). But the charges themselves are well supported by the indictment.

You might try responding to the statements she made. For a retired judge to step into the public arena like this is quite out of the ordinary and it indicates to me that the behavior she witnessed in Ortiz was so egregious that extraordinary measures were called for.

So much for business as usual, happens all the time, nothing to see here, move along, move along..

You are so full of shit.

"My argument is proved because person x thinks so" is a fallacious appeal to authority.

but there is nothing wrong with arguing "The fact that person x thinks this increases the probability that the argument is correct." as long as you correctly weight this factor amongst others.

Not all arguments need to follow the rules of deductive logic. There is such a thing as heuristics.

They might want to believe it because JSTOR declined to press charges. Isn't that a compelling reason?

If as I hope this gets the CFAA entirely repealed, then yes, I'm fine with the message being that if a law is abused that the entire law under which they're trying to build careers can be swept out from under them. If Ortiz and Heymann have to work corporate contracts for the rest of their careers, that will be fine with me.

Federal prosecutors are certainly intelligent enough to understand many of the factors which make this sensitive, including a suicide, internet backing, the specific alleged crime and the open access issue. Without deciding that the whole problem is that you can't prosecute white people. So many white people are prosecuted without fanfare that this would be an impossibly irrational conclusion to draw.

/s

I didn't actually know he was Jewish until last week.

America's a weird place.

Want to stop people speeding on a road? Issue tickets. In some sense, that's not fair -- people still do it and get away with it, why single out one person? But having a non-zero possibility of a negative consequence is a net disincentive to the behavior. Even if it's enforced somewhat randomly.

Hypothetically: let's suppose that our goal is to stop "the system" of prosecutors threatening multiple felonies against citizens for behavior that most other citizens do not consider worthy of a consequence as serious as jail time/felony conviction. Let us also assume that some prosecutors do this to get prestige/promotions. If there are well known examples of positive consequences, and no examples of negative consequences, then the incentives for our hypothetical prosecutor are pretty clear.

It seems fairly obvious that if Ortiz and Heynmann face seriously negative career consequences, it changes the cost/benefit calculation for other prosecutors, even those whose main concern is career advancement.

There aren't many ways to hold public officials accountable besides public outcry.

I do agree that the root problem is the human psyche. We have all kinds of bugs/heuristics (depending on how you look at it) for social behavior. These lead to group behaviors that us abstract thinkers find frustrating. Unfortunately, this isn't going to get fixed until 20+ years, and that's if you're on the optimistic side about transhumanism. So in the meantime we have to use the tools (and brains) that we have.

Yes and unfortunately we (everyone else) are trying to do the same "driving a tack with a sledge hammer". Hopefully, this will draw light to a bad judicial system, but also I hope it brings to light that public funded research papers should be public to everyone, for free. Since we do pay for the electricity, facilities, and salaries.

Honestly, for all the jaded and cynical people trying to play 'the adult' by defending the corrupt and immoral actions of the justice system and its officials based on legal technicalities--you don't come across as knowledgeable or reasonable, just spineless and enabling.

Hiding behind rules and technicalities to commit evil is the oldest and most cowardly trick in the book.

I'm not claiming she's a demon. It is very common for otherwise decent people to do evil in their institutional roles. But history shows that it's very very dangerous to permit this as an excuse.

http://www.boston.com/news/local/massachusetts/articles/2011...

* This case is Sonya Rao, not Carmen Ortiz (though once again Ortiz oversees all the cases in her office).

* The hotel is, let's not sugarcoat it, a blighted flophouse. Don't take my word for it; here's TripAdvisor ("ROOMS BY THE HOUR: Hookers, drug addicts, drug dealers, need I say more") complete with picture: http://tinyurl.com/ta-caswell and here's Yelp ("Please don't bring your kids here.") http://tinyurl.com/y-caswell

* The owners of the hotel were warned repeatedly by local law enforcement and an intervention of local hotel owners; specific measures were suggested to minimize the problems at this place and weren't taken; the hotel had no security, and its drug countermeasures consisted of a list of persons not to rent to again.

* The hotel owners made no policy changes after a methamphetamine lab was discovered in one of their rooms.

* The hotel owners made no changes after the dead body of a heroin overdose victim was found in one of their rooms.

* Drug deals weren't simply occurring at the hotel; the Tewskbury PD repeatedly discovered drug dealers operating full-time out of rooms in the hotel.

* The owners of the hotel repeatedly admitted under oath that they had continuing knowledge of drug crimes occurring on their premises, and had no policies to investigate the use of their rooms.

There are places like this all over America and they're all neighborhood blights that need to be shut down (hey, by the way, still think there couldn't possibly be a difference between an apartment and a room up for temporary let on Airbnb?).

If all we're saying is that civil asset forfeiture is the wrong means to shut them down, I'm with you. But this case does not make my blood boil the way it does for you.

Maybe he pays taxes exactly because he expects that the government would do their job? No one person can buy up every piece-of-shit property and clean it up, that's the whole point of foisting that shit job (and it's certainly a shit job) on the government

Um...are you arguing that states are fundamentally immoral?

Because I'm fine with using laws (read: state violence) to do away with things I don't think are morally acceptable, like, murder, rape, child abuse, etc. Really, I'm totally 100% fine with it.

If the police knows a place to be an epicenter of criminal activities, isn't that a great opportunity to do proper police work, and keep the place under surveillance?

Despite the possibilty that they may reflect the truth, most of those reviews are obvious snark, written in the style of depilatory creme reviews http://www.amazon.co.uk/review/R231U4ZG0YDNHD/ref=cm_cr_dp_t... ie: not to be taken seriously.

The fact is that I generally support decriminalisation, and that I acknowledge the fact that prosecution tends to treat those of lesser socioeconomic standing (such as the poor and those belonging to minorities) badly. But blanket statements generally don't help. Especially those calling for the blanket punishment of a wide ranging group of people whom are most likely doing that which they feel is right (never attribute to malice what can adequately attributed to ignorance).

Edit: Accidentally a word (The fact that -> The fact is that)

I agree. They should have everything possible bad happen to them. Both to ruin their lives -- which is what they deserve -- and to make them an example for others.

The same applies here. Someone needs to be held accountable. Change needs to start somewhere.

There is a huge difference between helping one person (decreasing the general suffering by a tiny but attainable amount) and making one person an example (hoping this changes the status quo somehow).

Ortiz literally did not do her job. She over-prosecuted a case, apparently for personal advancement and DoJ-vendetta seeking, that was worth no more than a misdemeanor at best.

Sure, it's a problem that "the system" allowed her to do so. But it's also a problem that she abused the system, destroyed a life, shows no remorse, and will likely continue to abuse the system if not removed from office.

However, an investigation is merited to determine if Ortiz and Heynmann were willfully negligant in applying their tactics. The same way we hold other individuals accountable for harm caused by bullying, she may merit the same. My gut tells me that an investigation and possible trial would exonerate her of any criminal wrongdoing (unless some other over-zealous prosecutor treated her as she treated Aaron), but would leave her open to a civil lawsuit, which she probably deserves

What's the evidence for that?

Instead to, err... dispacht them quick and efficiently?

To care for all indian citizens and to treat its health problems (if possible) was not the duty of this woman.

It is the duty of the indian government. The duty of the Republic of India and of all the hindi people.

Yes, I agree that having a team of volunteers "cleaning the streets" and hiding ugly pictures is very "convenient" and is not solving the real problem here: that this man, woman or child will die in a street and the government will not cares about this, probably because this human is tagged as "low chast" and "less human than me".

To charge a single NGO with the whole health system of more than a 1,2 millions of people seems not fair. Even if this NGO receives money for trying to help poor people.

I don't want to speak for this NGO, but I think that the game here is probably more about educate the hindi people that this situation is not right, than to save today a relatively few lives just to see how they die tomorrow victims of a unfair structure that tags people as first class, second class,... disposable. And, yes, you need some money to maintain this structure. The Mother Teresa NGO don't need to open hospitals, the Red Cross do this, Medicus mundi do this.

We should not blame a single woman for not doing the work of a system that rejects to treat and save a human people that can be saved. We should blame either the indian government, or if you prefer, the whole (lack of) humanity for this.

This is one thing is was absolutely correct: those articles had almost no chance of being sold at $20 a piece. In fact, the commercial value has little to do with the articles themselves, since JSTOR and journal publishers make the bulk of their money from subscriptions, which libraries will pay for regardless of the availability of articles by other means, and by offering search services, which Aaron was not preparing to offer. The claim that Aaron's plan would have caused any measurable harm to JSTOR or any of the publishers it contracts is dubious.

It is also worth noting that the government is not supposed to be in the business of indiscriminately protecting commercial interests. Even if we assume that sharing these articles via BitTorrent would have damaged JSTOR's business, so what? The purpose of academic publishers in our society is to make knowledge available on a widespread basis, and if BitTorrent does a better job we should have switched to BitTorrent long ago. Academic publishers are not like the RIAA or MPAA; where the music and movie businesses can claim that their profits pay for the entertainment they release, journal publishers cannot make such a claim, because the research they publish is paid for by someone else, the peer review process is voluntary, and many journals even have volunteer editors.

I agree that the characterization of Aaron's behavior as a "college prank" is unrealistic; a better characterization would have been "heroic."

Edit: I'd like to know what the downvoter is thinking, too, but I wonder if I'll get any answers.

He made great contributions in the effort of making information free, with his work on the commons and all. That is a profoundly big endeavor that pushes humanity forword, do not be so quick to look past that.

http://en.wikipedia.org/wiki/RSS

Basically, it seems like the original RSS spec (RSS 0.9) was authored by two guys at Netscape, and released in March 1999, followed by RSS 0.91 in July 1999.

At this point, it looks like Netscape lost interest in RSS, and the project was forked into two competing versions, one lead by Dave Winer, and the other by the RSS-DEV Working Group. Dave Winer published the specs RSS 0.91 (different to Netscape's), 0.92, 0.93, .94 and then 2.0 between 2000-2002.

In August 2000, a competing fork was started by Rael Dornfest, who posted a draft of RSS 1.0, which appears to have been written by himself. He asked for interested parties to join a working group, of which Aaron became a member. This group became known as the RSS-DEV Working Group, and 1.0 was published in December 2000.

It's hard to say how much involvement Aaron had in this working group (I haven't read through the archives), but RSS had certainly existed for some time before Aaron became involved.

Have you ever tried to sell a diamon, err, scholarly article?

I think that if Swartz successfully released the JSTOR archive, their entire business would have withered and died. Once you can buy a DVD on the street for $3 that held the entire thing, it gets harder and harder for university libraries to justify paying $50K/year. Their customer base wouldn't dry up overnight but over a few years, you'd see library departments squeezed for cash (and they all are) killing their subscriptions. With JSTOR access drying up, grad students and professors would make do by torrenting or copying DVDs; it would be an open secret, a technically illegal but universally accepted practice.

I don't think Swartz could have profited from this scheme, but he could have destroyed a large amount of financial value; JSTOR's a $50million/year organization.

There is no way in hell any university in a developed nation would drop their subscription to JSTOR. JSTOR keeps them on the right side of copyright law, keeps itself up to date, and provides infrastructure that the vast majority of university users find essential.

Individuals not affiliated with universities may find such a pirated collection useful, but such individuals currently make up a fraction of one percent of JSTOR's revenue.

Universities aren't stupid; they know there's no threat from dropping JSTOR and they can count to $50,000 all too well.

And every university already has a unified accessible non-JSTOR system for reading old journal articles: its called the journal stacks in the library basement + interlibrary loan. Everyone already knows how to deal with that: its just less convenient.

> I know that every university, there are multiple servers where students share terabytes of pirated movies, TV shows and music.

You are being delusional if you think such a system is at all comparable to what it would take to replace JSTOR for all but a fraction of university JSTOR users.

I was a technically inclined CS guy with far to much free time while in university and I would be royally pissed if my university had dropped JSTOR for some sort of ghetto fileshare with an aging torrent. Anyone a less ideal user than I would be crippled by that.

Academics are quite used to being creative in acquiring articles. It's not untypical to ask colleagues and friends at other universities to scan and email articles that they can't get access to through their own library. Before the advent of the Internet this was done with letters. Downloading a torrent is a minor inconvenience in comparison.

A large majority of people I have talked to have at some point acquired scans of at least on book online (be it to give it to students because the library has only one copy, for convenience during travelling or because the local library has no copies and an interlibrary loan would take some time while they need the book now).

Not to say that pirate servers aren't hanging out on Uni nets these days, but they are stealthed, and deniable.

Nor would anyone hesitate to prosecute one of us (yes, I am a grad student) if we were to share an archive on BitTorrent.

"Universities aren't stupid"

Really? Part of my introduction to grad school was an annoying quiz about complying with copyrights and a bunch of reminders about the penalties I would face if I dared to infringe. Yes, really, my school takes copyrights that seriously, and guess what? My alma mater also subjected me to that sort of treatment during my undergrad orientation.

Do you really think universities are prepared to stand up to the copyright system? Do you think any mainstream university is going to suggest that people download an illegal archive of scholarly publications? I can tell you this: I would be shocked if any respected university official endorsed the use of an illegal archive of scholarly articles, textbooks, or anything containing even the tiniest amount of human knowledge.

2. Why should we care if JSTOR goes out of business because an archive is published? If JSTOR's only value is in their ability to enforce other publishers' copyrights, then they should go out of business because human knowledge should not be restricted by copyrights. Copyrights only made sense for academic publications when we needed the publishing industry to make scholarly writing available on a widespread basis; in 2013, we have this thing called the Internet (perhaps you've heard of it) that is vastly more efficient and costs far less.

So if JSTOR's search service is valuable, great, let's keep them around. If it is not, or if we can get the same thing without JSTOR (I suspect we could if we really tried), then we should let them and all the leeches whose publications they sell subscriptions to die quickly. Considering that a typical scientific journal publisher will not pay the authors of its articles, nor the reviewers, and often not even the editors, what exactly can they claim to be contributing to human knowledge to the point of justifying the continued restrictions on access to that knowledge that copyrights the publishers that hold them are imposing?

For many journals, JSTOR doesn't have recent content available anyway; Universities typically subscribe to publishers to get electronic access to recent content while relying on JSTOR for access to older content.

Why should we care if JSTOR goes out of business because an archive is published?

It doesn't matter whether you care or not. But the law cares. Prosecutors care. Judges care.

human knowledge should not be restricted by copyrights.

You've decided that? Good for you! Do prosecutors and judges have to agree with that statement? What happens when they don't?

Copyright is the law. You don't like that. I get it. But prosecutors and judges have to enforce the law as it is, not the law as some hackers on HN fervently wish it were.

we have this thing called the Internet that is vastly more efficient and costs far less.

This internet thing, that I've never heard of before (thanks for telling me about it!), does it make scanning and digitzing old paper journals free also? Does it make it so that data entry techs typing in metadata describing old paper journals don't have to paid?

we should let them and all the leeches whose publications they sell subscriptions to die quickly

How are we going to do that exactly? By not enforcing copyright laws or the CFAA, just for them? So, copyright laws will be enforced when it comes to stealing proprietary source code, but not for old journals?

what exactly can they claim to be contributing to human knowledge

I'm not sure I get your argument here. Is it that copyright law shouldn't be enforced because you've decided journal publishers are rapacious parasites (I think they are too actually)? Or that copyright law should only get enforced for entities that contribute something to human knowledge?

...and the law is wrong. It is wrong, because it is no longer serving the interests of the people governed by it. The entire basis for the US legal system is that laws serve the interest of the people, not that laws are handed down from above or that the law itself has any moral or ethical justification. If society's interests are no longer served by a law -- and it is hard to argue that in the case of academic publishing, copyrights actually serve society's interests -- then the law should repealed.

"Do prosecutors and judges have to agree with that statement? What happens when they don't?"

They become the targets of congressional investigations, which is what is happening to Carmen Ortiz right now. It is horrifying that it took the death of a man with a bright future to bring this issue to the public's attention, but now that everyone is looking it is good to see Congress doing something that helps people for a change. Minute as the response from Congress has been, it is at least a step in the right direction.

"prosecutors and judges have to enforce the law as it is"

No they don't. Prosecutors have to serve the interests of the public and are expected to decline prosecution in cases where they are asked to prosecute someone whose actions were potentially illegal but both benefited the public and were neither harmful nor dangerous. Judges are expected to strike down laws that violate the constitution, and to give light or suspended sentences to people who are guilty of violating the law but whose imprisonment or punishment would do nothing to benefit society. The idea that prosecutors and judges have some kind of obligation to enforce laws that are clearly misguided is on the level of the fallacy that juries have a duty to convict if the evidence shows a defendant is guilty (jury nullification is an important check on laws that the public disagrees with).

"does it make scanning and digitzing old paper journals free also? Does it make it so that data entry techs typing in metadata describing old paper journals don't have to paid?"

That is an organizational problem, not a technology or legal issue. Universities could do this via their library system, or we could set up a system where people who voluntarily scan articles or write metadata get preferential treatment when they search or download (think of BitTorrent trackers that give preferential treatment to users with higher seed ratios). For that matter, why should we have to rely on a single organization or system? Maybe you are better than I am when it comes to entering metadata; maybe other people would rather trust your metadata over mine. Maybe we could set up something like a web of trust.

It is not like this could not be done; it is more like the law stops it in order to protect an obsolete business model.

"How are we going to do that exactly?"

Here's a suggestion: exclude scientific articles from copyright restrictions. If you want a compromise, how about this: exclude those articles for which the research was paid for with tax dollars from copyright. As a first step, that would not be so bad. Let the copyright battle be exclusive to entertainment and software, and leave human knowledge out of it.

We are already questioning the CFAA as a result of this case. Why not question copyrights as well?

"So, copyright laws will be enforced when it comes to stealing proprietary source code, but not for old journals?"

That would at least be a step in the right direction.

"Is it that copyright law shouldn't be enforced because you've decided journal publishers are rapacious parasites (I think they are too actually)? Or that copyright law should only get enforced for entities that contribute something to human knowledge?"

It is that copyright law was meant to ensure our access to the knowledge that journal publishers publish, but that in today's world it is actually making that knowledge harder to access. The copyright system was never meant to ensure that the authors of scholarly articles would be paid; it was meant to ensure that the publishing system would be monetized. At the time, the publishing industry was the best way to make enough copies of scientific journals to satisfy society's need, and the publishing system is expensive and must be paid for. Everything other than the distribution of articles is irrelevant to copyrights, because everything else is done by volunteers (writing, reviewing, and editing) and would continue to be done regardless of money.

We no longer need that system, because we have a distribution system that is substantially more efficient and less costly. Copyright is no longer promoting the best system for distributing scholarly articles; it is now preventing the use of that system and promoting an anachronistic system that by today's standards is shockingly inefficient. It seems reasonable to conclude that copyrights should simply not be applied to academic publishing, at least as copyrights currently exist, and that a new legal framework that promotes the use of the Internet should be enacted.

Sure, there are hurdles. Publishers serve as archives, they pay people to insert metadata, and sometimes they even scan older articles for us. I fail to see how these activities could not be accomplished with the publishing industry. Universities already have more than enough computer capacity to act as archives (I know a professor who took the time to scan his entire library, thousands of textbooks -- it fits on a couple of external hard drives sitting on his desk, with room to spare for storing all patents ever granted in all countries). Metadata is something that could be done as a community, perhaps via some sort of system as I had mentioned above, or it could be done by the universities themselves as a one-time cost for old articles (metadata for new articles could be inserted automatically when those articles are published). Scanners are not hard to find -- my school's library makes many available to patrons, I have one on my desk, and my department has many as well (and of course, I know someone who scanned thousands of books on his own); again, we could create a system that incentivizes scanning as a community effort, or rely on universities to do it. If we actually cared about the original goal of copyrights as related to academic publishing, we would be investing some time in finding better ways to do things now that we have the technology to do so.

You could summarize the argument like this: the law is standing in the way of the sort of progress that society is desperately in need of; therefore, changing the law is imperative.

Your proposal is unconstitutional. "Takings" must be compensated or you run into 5th amendment issues.

If you want a compromise, how about this: exclude those articles for which the research was paid for with tax dollars from copyright.

At my school, I owned the copyright to anything I published unless I used school resources. Even if I published while being funded by an DARPA grant. Moreover, school funding was split evenly between tuition, federal government grants, and private grants. How can you justify forcing people to give up copyright when the public only paid for one third of the research?

They become the targets of congressional investigations

But that doesn't change the law. In fact, none of the proposals we've seen in response to Swartz's suicide involve copyright changes. Copyright law isn't going to change at all.

Copyrights can only be granted for a limited time according to the constitution. The fifth amendment only applies to property and despite the use of the term "intellectual property" by lawyers and those who profit from copyrights, copyright is not actually a form of property. What is unconstitutional is copyrights that last forever, which is why Congress periodically extends copyright terms as an end-run around the constitution.

"How can you justify forcing people to give up copyright when the public only paid for one third of the research?"

Simple: the entire point of copyright is to ensure that American society will have access to creative work. It is not meant to be a form of property, it was never meant as a form of property, and researchers' copyrights on their work are doing nothing to ensure public access to those works.

Further, it is not at all out of line for researchers to give up their copyrights. I cannot speak for your field, but in my field, we routinely assign copyrights to journals and give up any copyright claims thereafter. The entire point of publishing researcher is for other people to read it, cite it, and build on it. Researchers gain nothing by restricting access to their published work, and researchers benefit from their work being made more widely available.

Don't swallow the propaganda that the copyright lobby has been shoving down our throats. Copyright is not about ensuring that authors can control who reads their work or how many copies exist in the world. Copyright is about monetizing the production and distribution of creative work. In the case of research, copyright has nothing to do with monetizing the work, because it is paid for regardless of copyright, and so the only point of copyrights on published research is to monetize the publishing system. We forgot the point of copyright long ago, thanks to decades of lobbying effort by the people who profit from the copyright system.

Why are you publishing your research, exactly? Is it not so that other people can read it, and if that is the reason, why would you care about receiving copyrights on that work? I cannot speak for you, but when I publish my work, I do so with the intention of other people reading it -- something that copyright does nothing to encourage these days.

Two words: civil forfeiture

Running into constitutional issues isn't even a speed bump to the government at this point. That ship sailed long ago.

JSTOR who declined to press charges is probably in the best position to value the damages Swartz inflicted.

Also, there is no way on earth you can pay for it on a researcher's salary or stipend. Hence, the Universities and Laboratories are BLACKMAILED into paying for it on the researchers' behalf. (So the 50K/year thing applies to MIT, Harvard and a couple of other "customers".)

However, outside of that context, J. Random Hacker might quite like to read a paper - his taxes paid for it after all, and there are like 3 good papers in existence. But JRH would never pay 50K for it. He probably CAN'T; JRH might need to take out a mortgage to pay that much.

So if you want to pretend that the 50K multiplies by the potential readership as "loss due to copyright theft", you are committing a basic economic fallacy, which is normally debunked in Econ101.

So I advise you to drop the whole 50K/year argument.

And you have them, in dead tree form at every big university. Universities functioned long before JSTOR.

BLACKMAILED

If you think this is blackmail, you don't know much.

if you want to pretend that the 50K multiplies by the potential readership as "loss due to copyright theft"

I don't believe that at all. My point was just that the archive has serious commercial value. If you can license access to an archive for $50K/year, then saying it has "little or no commercial value" is obviously wrong, right?

J. Random Hacker might quite like to read a paper

He can always go to his nearest university library and go spelunking in the archival stacks looking for it.

his taxes paid for it after all

His taxes paid for JSTOR to dig up the paper journal, scan the articles, and pay data entry folk to type in metadata? Really? I don't think so.

But JRH would never pay 50K for it.

$50K/year is not the only price point being offered. You could always pay for individual paper downloads or you can get them free now.

The Reuters news for yesterday lists the LIBOR scandal, which was an "attack" on financial data. The fine alone, for UBS alone, was $1.5Billion. Now that's what I call "serious commercial value". JSTOR, not so much.

Do you want to keep arguing the point or do you feel silly enough already?

As I've explained above, I don't think Swartz was trying to profit from this scheme. But I do think he was trying to destroy significant financial value (yes $50million/year is significant for me). And from a legal perspective, that's extremely serious.

Now that's what I call "serious commercial value". JSTOR, not so much.

So if I rob a bank and steal $30 million, that's not a crime with serious commercial value? Interesting.

Of course JSTOR was small potatoes compared to LIBOR. So what? 99% of all crimes are small potatoes compared to LIBOR. That argument proves way, way too much.

Lock me up then, because I have been pushing people to abandon the academic publishing industry and share knowledge more freely for a while now. Since when should any of us care about what happens to those leeches?

Is JSTOR's archive valuable for society? Not anymore because we have a much better way to spread human knowledge: peer to peer networking on the Internet. We do not need a centralized service that charges money for access in an age of widely available high-speed connections. JSTOR's search service may be valuable, but Aaron did nothing to threaten that service and I suspect that it would take a half dozen HN readers a few weeks to develop something just as useful that every university could run on its own servers or anyone else who wished to do so. We could probably make a distributed search system if we really put our minds to it; what holds us back is the copyright system itself and the publishers who will only allow JSTOR to access the articles at grossly inflated prices.

We are not talking about something debatable, like whether or not the RIAA and MPAA should continue to have their business models protected by copyright. Journal publishers and JSTOR could vanish and research would continue to happen, scholarly articles would continue to be written, and human knowledge would be more accessible than ever before. Journal publishers do nothing at all to continue the expansion of human knowledge: they do not pay the authors of articles, they do not pay the reviewers, and many do not even pay the editors of the journals. We stopped needing them when the world wide web was invented (and probably even before that -- once global computer networks became a real thing, academic publishing became obsolete, and it has been propped up by the copyright system ever since).

Rather than being charged with a crime, Aaron Swartz should have been asked to advise the President on how to improve our access to education and to knowledge in general.

Can you give me a list of entities for which copyright law no longer applies? Or do you think copyright law no longer applies for everyone?

Better yet, just give me a list of laws that I can now break with impunity, because you said so.

1. JSTOR has a commercial value of $50mil/yr.

This is a fair point, if that is indeed JSTOR's revenue (though "commercial" isn't exactly the right word to describe a non-profit organization's activities).

2. Aaron's intention was to destroy JSTOR.

Unless you have another source beside the Guerrilla Open Access Manifesto[0] and the recent summaries posted online by those close to the case, I don't believe this at all. Aaron's intent, as expressed by the manifesto, was to increase access to knowledge. I also do not consider a federal indictment to be a reliable source for determining the frame of mind of the indicted.

3. Aaron's archive would have been a substitute for JSTOR access, and thus capable of destroying JSTOR.

The other responses to your comments have disproven this claim fairly effectively. JSTOR provides legitimacy to university libraries, it provides an active, searchable index, full text search, online viewing, and a continually updated collection. Aaron's collection of PDFs would provide none of that.

Furthermore, the original purpose of JSTOR was to free up space used by archived print journals, so your claim that print journals in the library stacks would substitute for JSTOR is demonstrably false.

4. Destroying a business model (of a non-profit organization, no less) is equivalent to stealing (e.g. your "if I rob a bank" analogy).

Despite arguing against the idea that Aaron wanted to or was even capable of destroying JSTOR's business model, I will briefly address this point.

Making a particular business model obsolete is not in itself criminal. This has been argued to death online, so just search for "buggy whip manufacturers."

[0] http://pastebin.com/cefxMVAy

Well, if that's true, then I can't see how Swartz's actions were going to help anyone. After all, if the archive torrented is completely inferior to the JSTOR service, then no one would find it valuable. It wouldn't help anyone. So why exactly was Swartz interested in it?

Aaron's intent, as expressed by the manifesto, was to increase access to knowledge.

I doubt he particularly cared about destroying JSTOR one way or another. But he did care about making it so that everyone on earth could have completely free access to every single JSTOR article. If he had achieved that goal, there's no way JSTOR could function as a going concern now. I mean, maybe JSTOR could continue as an company charging $1/month for a search index, but it wouldn't be scanning in new material like crazy right now.

Making a particular business model obsolete is not in itself criminal.

Of course not. But violating the CFAA is. Copyright infringement, on a large enough scale certainly is.

An analogy: margarine is inferior in taste to butter. To those who can afford butter (universities), margarine is undesirable. To those who cannot (laypeople, journalists), margarine may be an acceptable substitute.

Inferior does not mean valueless, nor does it mean the value of the superior product is diminished.

Of course not. But violating the CFAA is. Copyright infringement, on a large enough scale certainly is.

This is a completely separate debate, and addressed elsewhere. Summarized, it is debatable whether Aaron's actions (changing MAC address) do or should constitute Wire Fraud or CFAA violations. It is also debatable whether any nonviolent crime should ever have a penalty larger than any violent crime. I will not address any of these points further in this thread.

If Swartz's material had been released, J Random Hacker, who simply wouldn't have read any of the JSTOR papers before, would now read them. MIT, on the other hand, would still pay for them. Though I can see how Podunk Community College in ThirdWorldistan might not pay for it.

The same way that you can get pirate Windows now, and some 15 year old kid in Thailand does. But Goldman Sachs still pays for a license. But some dodgy outfit in Beijing might not.

The principle here is not a legal principle, it is an economic principle. It is called loss of earnings. Look it up.

Instead of whinging that Swartz was going to destroy a $50 Million business, admit that the loss of earnings he would have caused would have been ZERO.

More disturbing than your ignorance of Econ101 is how you are fixating on the cost of Swartz's "crime", excluding the wider social aspects including the deadweight loss imposed on society as a result of copyright lobbying.

It's like a hobbit-sized version of somebody complaining about how the cotton industry would shrink - the horrors! - if we were to stop slavery.

  - scan old articles (this really shouldn't be accounted as
    a business expense: once you've scanned an article you
    never need to scan it again and there are a finite
    number of articles in existence, thus this is that rare
    sort of capital spending that can be depreciated over
    an essentially infinite period)
  - serve saved content and related services online (the
    price of this activity is dropping all the time)
  - sales, accounting, legal (these activities would be much
    less costly for a free service like arXiv.org)
  - license payments (hard to get around this without some
    [justified IMO] changes to the law, but I'm sure JSTOR
    is also marking up these charges and besides most
    education institutions already make equivalent payments
    to extant journals)

I doubt that you can show me that Swartz's "crime" was somehow doing more damage than 99% of all crimes.

I doubt that you can show me that it was doing more damage than 51% of all crimes.

In fact, I doubt you can show me that it was significant at all in the grand scheme of things.

What Swartz allegedly wanted to do is something similar to sticking a Windows ISO on BitTorrent.

If you think that's "extremely serious" or worth comparing to a bank robbery, this conversation is over.

Yes, they are doing that themselves. But hopefully not for much longer if the internet has anything to say about that. I applaud all of the scientists who are working hard to make their research more open.

Imagine a world where Swartz managed to destroy JSTOR. A professor asks his grad students to read an article. They can either dig it out of the archival stacks and read it there or wait for interlibrary loan or...use a torrented copy or illegal DVD they bought on the street at their last academic conference. There is no way to track which one they did. No one will ever know. And no one will care: all the prof cares about is whether his students read the damn article; he doesn't care how they got it. He's completely focused on getting his research done, writing grant proposals, etc.

He wanted to provide access to the articles to people that do not have 50K/year to pay to JSTOR. That would by no way destroy JSTOR

JSTOR prorates its fees so that poor institutions pay much less than rich institutions. And all of Africa gets JSTOR for free. Now, even individuals can get capped free articles from JSTOR.

If the JSTOR archive was released to the world, why would journal owners continue licensing their content to JSTOR?

Finally, do you understand that most of what JSTOR charges pays for either licensing the journal content (JSTOR doesn't own copyright for the journals it includes) or for scanning/digitizing new content? The costs that JSTOR charges pay for a hell of a lot more than a few web sites pushing PDFs to clients.

I'm not sure how this question makes sense. If the content that is accessible via JSTOR would be also accessible otherwise, which journal owners would withhold permission from JSTOR to publish their content? That's like saying if the book is available in the library, nobody would ever buy it. Obviously, it is not so.

Also, surprisingly, in September 2011 JSTOR made public domain content available to everybody and shortly after that instituted free individual access programs - which they didn't do before, and which by your words should be impossible due to high costs that can not be supported in any other way but by charging for any access. Somehow it turned out to be possible still, and JSTOR did not collapse.

I wonder if Swartz, who was very concerned about information access in the global south (according to his manifesto), knew about that.

And spoilers: it's not. In order to make it would you would have to recreate everything JSTOR currently does, which would result in a JSTOR not called JSTOR. One with legal liability at that.

http://www.emptywheel.net/2013/01/19/the-fishing-expedition-...

Related: http://www.emptywheel.net/2013/01/14/what-kind-of-fishing-tr...

And: http://www.emptywheel.net/2013/01/19/the-six-week-delay-in-t...

  > The process was fundamentally corrupt and shameful. But observers of the American criminal-justice 
  > system also know that it was a common one.

But what raises the deepest concern when I read this article is that the author continues on to describe Swartz's case not as a particularly bad example of prosecutorial oppression but rather as an exemplar of justice in the United States: "The process was fundamentally corrupt and shameful. But observers of the American criminal-justice system also know that it was a common one."

What can we do about this?

And it seems to be pretty common,

This is another example, a marine biologist bullied and with her life destroyed for "feed the whales". The history and treatment of this girl by another "Ortiz" really sucks.

http://www.dailymail.co.uk/news/article-2083331/Marine-biolo...

"Ms Black could receive a maximum sentence of 20 years in prison and a half million dollars in fines. Each of the feeding charges carries a maximum penalty of a year in prison and a $100,000 fine."

I copy here a few more notes written about this case:

"Note that after six years of investigation and who knows how many taxpayer dollars down the hole, the DOJ is neither charging Nancy with harassing any whale on October 12, 2005, or any date since then. The indictment does not even allege that Nancy harassed any whale" (http://www.nancyblacklegaldefense.org/charges.htm)

Uh oh, "Ortiz boy/girl" in charge, you are shorting of ideas, think quickly...

Thanks god, whe have the 1001!

"When federal prosecutors can't muster enough evidence to bring charges against a person suspected of a crime, they can still use a controversial law to get a conviction anyway: They charge the person with lying.

The law against lying--known in legal circles simply as "1001"--makes it a crime to knowingly make a material false statement in matters of federal jurisdiction. Critics across the political spectrum argue that 1001, a widely used statute in the federal criminal code, is open to abuse. It is charged hundreds of times a year..."

...Nancy Black, a marine biologist and operator of whale-watching boats, recently became ensnared by 1001. When one of her boat captains whistled at a humpback whale that approached the boat a few years ago, regulators investigated whether the incident constituted harassment of a whale, which is illegal.

This past January (2012), Ms. Black was charged in the case--not with whale harassment, but with lying about the incident. She also faces a charge of illegally altering a video of the whale encounter, as well as unrelated allegations involving whale blubber. Together, the charges carry up to 20 years in prison. She denies all wrongdoing, including lying..."

This is is taken from an article in the Wall Street Journal about the aplication of 1001 to targets like Nancy when all other charges failed... ("For feds lying is a handy charge, Emshwiller and Fields)".

I strongly recommend its complete lecture to all interested in the Aaron's case. It is terrifying.

"...the law is so vague that harmless misstatements can be turned into federal felonies."

http://online.wsj.com/article/SB1000142405270230329960457732...

link to the PDF (in case the other link fails) http://www.nancyblacklegaldefense.org/For%20Feds,%20%27Lying...

In short:

This IS a shame, to ask 20 years for "edit a video" is indecent, abusive and ridiculous, and somebody had to say it.

I hope never, ever, to have a law like this in my own country. To me, It's like a sort of legal torture to crush a target and force a confession, even from innocent people, and must be stopped.

While Ortiz will be the convenient (and rightful, I suppose) scapegoat in this instance, she's a symptom of the problem and not the cause. There are far more fundamental problems with the DoJ, and until they're addressed (time and cost of mounting a defence, overly aggressive prosecutions, lack of oversight and discretion), nothing will change.

My personal belief is that when prosecutors know that there is a chance of cases blowing up and destroying their careers, as is happening here, they have an incentive to be careful. And likely will be more careful for some time. This is a good thing - even if it helps much less than fixing the system.

That is why in many, many corporate cultures there is an effective policy of responding to problems by publicly identifying a scapegoat and throwing the book at them. It is an easy action that makes a marginal difference for a short time.

So this is better than nothing. Unfortunately it is not very good. First of all the deterrent effect is only temporary. Secondly you get two-tiered justice where defendants who seem likely to have the potential to raise such a firestorm of protest are more protected than defendants who don't. Thirdly the identification of a scapegoat relieves pressure to come up with a better fix.

Therefore I am modestly in support of the current corrective process. I would like to see something better. I will encourage better things. I know the shortcomings of scapegoating. However it is better than nothing. If this is all that this case is likely to achieve, it was still a somewhat useful response.

In order for it to be completely ineffective to "treat the symptom", it rests on the assumption that successfully treating the symptom will have zero effect on the cause behind it.

A good example of that is taking pain meds to mask the pain of a knee injury. So then you go and run on it, and it makes the knee injury worse. You treated the symptom, and nothing changed.

But there are definitely examples where treating the symptom does help. For instance, someone is temporarily depressed because of a unresolved situation in their lives. And yet, they cannot address the situation because the depression is in the way. So, they take an anti-depressant, and then maybe they can resolve their root cause, and then maybe they can go off the anti-depressant.

Someone like an Ortiz, yes, is a symptom of a deeper problem. But I'm not convinced it is like the pain in a knee, where treating it will make zero difference. A bum knee isn't exacerbated by the pain. But the system may be exacerbated by Ortiz. A bum knee doesn't become a bit less bum from witnessing the taking of a pain med. But if the system recognizes an Ortiz downfall and receives a data point of what "going to far" is, then maybe that would have an effect.

Probably not a sufficient effect, probably not enough, but I'm just pointing out that the fact that Ortiz is a symptom, is not, by itself, sufficient reason to believe that "nothing will change". Also not sufficient reason to believe that the symptom should not be treated.

I'm afraid of throwing Ortiz to the wolves, washing our hands and saying, "Well, that's that."

The "common resource" is the client opportunity. The Nash equilibrium is every employee maximizing their own bonuses. The group optimum is the health of the company. It turned out that the individual self-interest did not align to what was good for the health of the companies. And in fact, that if they had cooperated and worked for the health of the companies, the employees may have ended up with higher individual payouts. This is exactly what the tragedy of the commons is about, and it's what apparently shook Greenspan to his core. So basically, it was the (predicted (over and over again)) failure of Objectivism.

I worry about the same non-effect with the gun-law blitz we're seeing after Sandy Hook. I worry that we're not attacking the problem- which may have more to do with mental health issues than gun laws.

Prosecutors Ortiz and Stephen Heymann turned to a standard trick while pursuing the case, mounting a total of thirteen felony counts against Swartz and arguing that his college prank aimed at “liberating” a collection of academic articles with little commercial value was a serious crime. Although each of these counts bordered on the preposterous, Ortiz and Heymann clearly reckoned that at least one or two would stick during the jury-room bargaining process. More to the point, they assumed that the risk of their success even on bogus charges would be enough to pressure Swartz into accepting a guilty plea on all the counts in exchange for a reduced sentence — which is what they offered him. The process was fundamentally corrupt and shameful. But observers of the American criminal-justice system also know that it was a common one.

I've read some negative comments about the article, which surprised me; as this paragraph proves, the article isn't painting Ortiz as a rogue exception to the rule.

Cruel and barbaric. This comment is horrifying.

Many people commit suicide in prison. Being under suicide watch reduces, but does not eliminate, the risk. (I know someone who was under "level 2 observation" (a member of staff within arms reach at all times) in a MH hospital. They managed to self harm so severely they needed to be transported to a general hospital for several surgeries.)

America sends many people to prison. America has awful mental health care. The care for people with mental health problems is so awful that prisons are often the largest providers of mental health treatment.

"Prisons are the largest providers of mental health treatment" should be a statement that we should only read in dystopian science fiction.

In the UK prisoners have a sentence. They serve the sentence, and then are released. A prisoner who develops a severe mental health problem is transferred to a secure[1] mental health unit (a forensic unit). They stop being a prisoner and become a patient. They get returned to jail when they are well. Some criminals are ill at the time of the offending behaviour, and get sent straight to secure hospitals. These people do not have a sentence. They just have to convince people that they're well. And once they've done that they get returned to jail to continue serving their sentence. So being a patient means things like forced medication, and a lack of information about when you're going to be released or what you need to do to get out.

I take your point though. I hope I haven't suggested that people can use mental ill health as an excuse for offending behaviour.

[1] Secure is a jargon word here, meaning units for people with some police involvement. There are plenty of locked wards, but they don't get called secure units. And there are 'section 136 places of safety' which used to be police cells (still are in many places) but which should really be somewhere therapeutic / clinical. (Section 136 is used by police to take people who are 'mad in public' to a place of safety to be assessed by a doctor.)

EDIT: Wow, wall of text. Sorry.

http://www.wbur.org/2013/01/16/gertner-criticizes-ortiz-swar...

The legitimacy of the legal system is the result of centuries of work by jurists, judges, legal scholars, politicians and others; each of whom added their effort to making it so that not only they believed the law had dealt fairly with those who came before it but also that it had appeared to be fair to the rest of society. When that legitimacy is eroded, for personal benefit, for career aspirations, to please those whose favor is sought, for any reason; it takes much less effort. But the damage is subtle, people give lip service to institutions long after they have become hollow shells of their former glory.

In this country, at this time; the law is an instrument of social control, of thievery ( read the literature on civil forfeiture, if that statement bothers you ), of vengeance, and only rarely and incidentally of justice. Most of us know this. But it is one of the truths that cannot be spoken in polite society.

At this time, most of us know but are unwilling to acknowledge, that the law is an outrageously powerful instrument that acts randomly and capriciously. If you happen to be of the wrong color, speak the wrong language, or practice the wrong religion in the wrong place at the wrong time; you can be given a status equivalent to Orwell's formulation of an 'unperson'. If you happen to cross the path of someone who has access to the controls of this fearsome legal apparatus, your guilt or innocence, your rightness or wrongness; is irrelevant. All that matters is whether they decide to take an interest in your case; if you are deemed a target, all that matters is what crime can be made to fit your situation.

It would seem axiomatic, that this is an untenable situation; that once this state obtains, it will not be long before the law becomes a disreputable joke, a sad reminder of former greatness, and a jungle in which everyone is a predator and fears becoming prey.

That is why the reform of our justice system is such an urgent matter. We have eroded the legitimacy of our courts to a degree that their proclaimed fairness is a dismal jest to anyone who has been in prolonged contact with them.

We have allowed our legal system to be infected with concepts of intrinsic guilt, of theft under color of law, of monarchical privilege, of illegal truths; all of which are antithetical to a functional and free society.

You can't change society by starting from an abstract concept like "justice".

We didnt get the civil rights movements from the concept of "slavery". We got it from a bus incident in which the conductor acted like every other bus conductor in the nation.

I think it was Sun Tzu who said, "the enemy of my enemy is my friend". It's important to realize there is still a strong strain of libertarian thought on the right, that is supportive of civil liberties and is concerned about the ever-increasing power and overreach of the government.

This is why the exceptions tend to be cases where restraining civil liberties doesn't really help the President do as he pleases. For instance, the American left supports regulating and prohibiting gun ownership even under a Democratic president, while the right opposes it even under a Republican president. The same is true, in reverse, for abortion or gay marriage, with both sides split on marijuana. But when it comes to drones, wiretapping, Guantanamo, or federal law enforcement and prosecution, it's not a question of principle anymore but a question of empowering or disempowering the President and his Attorney General. Hence, conservatives will be angry at Janet Reno, but will stay mum about Ashcroft and Gonzales for eight years, or even be supportive, before coming out against Holder. Meanwhile, the actual civil libertarians haven't liked a single one of them!

What the Left fails to seem to realize is while they may love Obama to death, the Presidency is not any one person, it is an office. Obama's extension of executive powers is inherited by the next Republican president just like Bush and Cheney's were inherited by Obama.

This is probably another downside of the hyper-partisan tone of today's politics. Obama supporters stay quiet about his abuses for fear of weakening him in his zero-sum fight with the Tea Party. But this ends-justifies-means selective outrage is not a principled stance, and in the end the next Romney type who gets in there will reap the benefit of our collective silence.

A vendetta against a prosecutor, carried by hugely one-sided, unreflected and self-reinforcing blog-posts does not even come close.

Sounds awfully like the thing you claim to be protesting.

> ...Swartz and arguing that his college prank aimed at “liberating” a collection of academic articles with little commercial value was a serious crime.

'Pranks' have a history in political activism - see La Barbe or Pussy Riot or others.

If a burglar is sneaking out of a house with a sack of stolen goods, and the police catch him and return everything to the owner, you'd still consider that a crime, right?

If so, then you agree that situations where nobody is hurt and no permanent damage done can still be crimes.

Please, please, please, pay attention to context before accusing someone of ignoring context. It makes it very difficult for people to have nuanced debates about complex events if nobody is allowed to isolate a part of the problem independent of others.

Yes! Thank you, I was trying to put in words why the initial downvote wave on my comment really bothered me, and this is exactly it.

I don't think I said that! I did say that if I had to chose between "federal crime" or prank that I'd chose prank. But if you extended the list to include misdemeanour or somesuch I guess I could see that.

Sure, but that's a false dichotomy. The author was under no such constraint, so it was sensationalist and misleading for him to keep referring to it as a prank.

And when I say that, I'm not casting judgement here. The Boston Tea Party and the Rosa Parks protest weren't pranks either.

As a matter of fact, explaining why someone is wrong is generally less of a waste of time than insulting them.

Consider the benefits: they might learn things they didn't know, you will have a better understanding of your own feelings, and you may both get some insight into a different point of view than your own. These are, in my opinion, more valuable things than the fleeting satisfaction one gets from telling someone off.

Suppose it takes five times as long to write a decent comment as it would an insult. Would you rather look back at some point in the future and say "I wrote 50 insults", or "I wrote 10 good comments"?

Downloading from a network in a manner that violates the network's ToS would make for a particularly tame prank.

This is what really hit home for me. They weren't just filing court documents in a legal strategy to get a conviction. They were telling a man to his face that they expected him to plead guilty to patently insane trumped-up charges.

However, I am sure you agree that it is highly-likely due to the aggressive nature of the prosecution and voiced opinions by his family and friends that this was having a very negative affect on his emotional well-being. That might be conjecture but it's better conjecture than believing he committed suicide for no new reason.

edit; I noticed you just down-voted me; I understand it's difficult to deal with being called out online. That said, I would like to point out that your implication that the burden of proof should be on proving Ortiz has some responsibility for his suicide in your insinuation that ”It's now taken as an article of truth that Ortiz drove [Aaron] to suicide” is false. There has been a lot more evidence that there the prosecution was over-reaching and that Swartz was affected negatively by this than there has been otherwise. Obviously your intention by asking that question was to create an easily discredited strawman and perhaps it's a shame I gave you the benefit of doubt when I responded...

I'm happy to see the change and the backlash against Oritz, but I wish this happened sooner.

My personal view is that suicidal impulses are similar to septic fever; the causes are understood, the consequences are terrible, and both prophylaxis and treatment are effective.

But, it is not always possible to reach victims when they need help.

Beng the target of an unjust and overreaching prosecution is the sort of stressor that could provoke even a strongminded person to suicide.

Over the past several weeks, I've been completely numbed by all the outrage and media this event is generating. If I was a well known hacktivist and saw what has transpired here, it makes it look like being a martyr for your cause is considerably more beneficial than simply lawyering up and going through a trial.

(I know that Swartz is said to have suffered from depression which could be considered another factor in his suicide, but I'm specifically addressing this point which is unrelated to mental illness.)

But I'd like to see the millions of poor black kids whose lives are destroyed by the justice system every day get this kind of response, and not just when it's a handsome rich white kid like Aaron.

"But I'd like to see the millions of poor black kids whose lives are destroyed by the justice system every day get this kind of response"

People are taking on the war on drugs, what else is clear-cut and concise enough to address? "Poverty" and "racism" are wayyyyyyyyyyy too complex for anyone to easily identify around it, and the conditions and systems built around both are evasive enough for politicians and lawmakers to blame the systems on "a few bad eggs".