Aaron Swartz committed suicide last week at the age of 26. I would like to pay tribute to him by writing calm, elegiac prose conveying something of his intelligence, his passion, and the distinctive quality of puckishness that photographs of him managed to capture surprisingly well.
Unfortunately it does not look like that is going to be possible. Things would need to make more sense than they have, so far. Feelings of sadness and anger, which are perfectly appropriate responses, keep giving way to the paradoxical and incoherent state of mind in which I both grasp what has happened and simultaneously think that it can’t really be true. This reached its worst and most absurd expression in the passing thought that news of his suicide might be part of a scheme in which Aaron is alive and well, living under a new identity someplace where U.S. government prosecutors will never find him.
It’s possible! Well, no, of course it isn’t. This state of mind is what they call “being in denial,” and it’s embarrassing to recognize. But it hardly seems more irrational than the reality in question. For the government’s prosecution of Aaron for hacking into the Massachusetts Institute of Technology's system to download a few million articles from scholarly journals was not just a case of intellectual-property law being enforced with too much zeal. It seems more like an expression of vindictiveness.
Consider something just reported by the Associated Press: “Andrew Good, a Boston attorney who represented Swartz in the case last year, said he told federal prosecutors in Massachusetts that Swartz was a suicide risk. 'Their response was, put him in jail, he’ll be safe there,' Good said." It is too hard to think about that. Better to imagine him escaping, carrying on his work in silence, cunning, and exile.
He was already something of a legend when we met for lunch not quite five years ago, having already been in touch for a couple of years. At the time, he was known for his role in the creation of RSS and Infogami; his internet-freedom activism and legal troubles were to come. Among his projects had been the online archive he created for Lingua Franca magazine, then defunct though still widely admired. I had been a contributing writer for LF and heard about Aaron from a couple of friends, and was very glad to be able to interview him about the Open Library cataloging initiative he was helping to launch.
Not that long before we were able to meet face-to-face, Aaron had given a talk called “How to Get a Job Like Mine” which covered his career up through the age of 20. In person, he was modest about his teenage coding career, or at least disinclined to say much about it, and I never got the feeling that his later exploits in taking on the Public Access to Court Electronic Records (PACER) database and JSTOR involved anything like hacker vainglory.
In his activism (legal and otherwise) as in his early coding projects, the emphasis was always squarely on making access to information and tools more widely available, on the grounds that restricting the flow of knowledge served only to make already-powerful people still more powerful. Aaron seemed earnest without being dour or humorless, which struck me as giving him one leg up on his hero Noam Chomsky.
While trying to pull these impressions together, I had a moment of seeing something about Aaron that never crossed my mind while he was alive, although it seems, with hindsight, pretty obvious: He was as perfect an embodiment of the mythological being known as the trickster as anyone could possibly be. My copy of Lewis Hyde’s brilliant book Trickster Makes This World: Mischief, Myth, and Art (1998) has gone missing, but the author’s website has a pertinent description.
Trickster figures in various cultures “are the consummate boundary-crossers, slipping through keyholes, breaching walls, subverting defense systems. Always out to satisfy their inordinate appetites, lying, cheating, and stealing, tricksters are a great bother to have around, but paradoxically they are also indispensable heroes of culture. In North America, Coyote taught the race how to catch salmon, sing, and shoot arrows. In West Africa, Eshu introduced the art of divination so that suffering humans might know the purposes of heaven. In Greece, Hermes the Thief invented the art of sacrifice, the trick of making fire, and even language itself.”
The gods and worldly authorities alike think of the trickster as a criminal, or at least a bad apple. Furthermore, tricksters tend to be prodigies -- their genius for invention and disruption already evident in childhood, if not infancy. In the introduction to his book, Hyde writes that the trickster’s disregard for the rules “isn’t so much to get away with something or to get rich as to disturb the established categories of truth and property and, by so doing, open the road to possible new worlds.”
That names Aaron’s attitude beautifully, and my fleeting daydream that he might somehow be pulling a fast one on the authorities is like something out of a trickster narrative. The resemblance also goes some way towards explaining why, more than anyone I've ever met, he seems destined to be remembered as a hero for a long time to come. You don't get to make that many friends who are archetypes, but Aaron was an exceptional person no matter how you look at him.
Submitted by Eric Jager on August 1, 2011 - 3:00am
All right, I admit it. Like many hopeful authors, I had been Googling my own book. To see if it had been blogged lately, or mentioned by someone at the White House. As usual, nothing new turned up. But then I saw something odd on the screen: a picture of my book’s front cover, but with a Slavic title. What was this?
My book was about a celebrated trial by combat in medieval France -- a duel to the death fought before the king in 1386 by two Norman nobles, Jean de Carrouges and Jacques Le Gris, over Le Gris's alleged rape of Carrouges's beautiful young wife. I spent years researching the story, eking out travel grants to visit archives in France, and tracking down the original documents in Paris; like any author, I felt protective toward my work.
At first, when the Slavic book cover showed up on my screen, I thought it was a joke. But the image linked to an online bookseller in Croatia, and to details about the publisher, translator, number of pages -- and price. Clearly, it was for real.
My next thought was that maybe my publisher had licensed a Croatian edition and forgotten to notify me. Besides foreign-rights sales in some larger territories, there had been smaller deals in places like Estonia and Hungary. Perhaps the Croatian edition, evidently published some three years earlier, had just been overlooked. I got in touch with my editor, who said that the publisher would look into it.
Several weeks later, my editor wrote to say, "You’ve been pirated!"
On learning the news, I felt a mixture of betrayal and pride. Yes, my book had been sold in a foreign country for several years without my receiving a dime of royalties there. But how many authors could claim to have been pirated in Croatia?
My publisher, I subsequently learned, had located the pirate in Zagreb and sent an ultimatum: cease and desist, or sign a contract and pay up. They signed and paid. Not much money was at stake, but I’m grateful to my editor and publisher for going to bat for me -- and for authors' rights in general.
Other odd things have happened since my book first appeared over five years ago. A few months after publication, for example, amid some early film interest, I got an e-mail from a total stranger, saying, "I’ve heard about your book. I haven’t bought it yet, or read it, but I plan to borrow it from the library. In the meantime, do you want to keep the film rights?" The request was so bold, or idiotic, that it annoyed me even more than the later piracy in Croatia. If the guy had asked me in person, I might have punched him.
A few months later, I received an e-mail from someone in France with the same last name – Le Gris – as the squire who was accused of rape in 1386. Oh no, I thought. They've heard about my book, and they're mad at me for dragging the family name through the mud all over again. But the note was friendly and led to further exchanges. A little over a year later, back in Paris to research a new book, I had a very pleasant lunch with one of Jacques Le Gris’s descendants. He didn’t even seem to mind that my research pointed to the likely guilt of his ancestor. Now, if only I could have lunch with a descendant from the other side of the celebrated case.
A little over a year ago, I received a package from France. In it was a self-published novel about the Carrouges family, neatly inscribed to me inside. Its scope was larger than my nonfiction book, but it recounted the 1386 crime and the celebrated duel at some length. Paging through it, I soon saw that it contained material I had quoted from rare documents that apparently the author had never consulted, and even many of my own descriptive phrases. The novel had a list of sources, but it did not include my book.
A novelist, of course is free to write his or her own version of the story – but not using my words, even translated, without acknowledgment. I considered taking action, especially since a translation of my own book would soon appear in France. What should I do first? Write a letter of complaint, pointing out examples of the borrowing? Write my editor again? Or write directly to my French publisher?
On reflection, however, I decided that the best thing to do in this case was absolutely nothing. Attacking a vanity-press publication might simply advertise it to readers who had never heard of it before. And it would distract my French publisher’s efforts to promote my own book. Besides, how would it look in France if an interloping American went on the warpath against a native author who had novelized the local patrimony, even if borrowing someone else's words to do it? Not good. The French might very well side with the author, not me. All considered, it was best just to leave the matter alone.
My book duly came out in France and was very kindly reviewed in a number of major newspapers, and even on Radio France. I’ll never know what would have happened if I had acted otherwise, but I think I did the right thing.
This afternoon, in a Congressional office building, Rep. Howard Berman (D-Calif.), chairman of the House of Representatives Judiciary Subcommittee on the Courts, the Internet, and Intellectual Property, will convene a public hearing about digital piracy on college and university networks. Berman is Hollywood’s man in Congress -- literally! His Los Angeles Congressional district is home to many major movie and music studios.
Today’s hearing is the latest in a continuing Congressional review of digital piracy -- both on and off college networks. Digital piracy -- be it copy shops in Asia churning out thousands of counterfeit copies of CDs, DVDs, and computer software, or individuals downloading music, movies and software from the Internet -- involves big bucks. A recent report by the Los Angeles Economic Development Corporation suggests that all forms of digital piracy and counterfeiting (including counterfeit clothing) cost Los Angeles area companies some $5.2 billion in lost revenue in 2005, and state and local governments $483 million in lost tax revenue. The development corporation reports that digital piracy and product counterfeiting cost Los Angeles 106,000 jobs in 2005.
There can be no posturing about the core issue: Copyright is a good thing. Copyright protects the rights of individuals and organizations that create and distribute music, movies, and other kinds of digital content and resources. Piracy is theft. Piracy is bad. Piracy is illegal.
That said, while there is no question that digital piracy -- by copy shops or college students -- is wrong, so too is the underlying assumption of today’s hearing: that college students are the primary source of digital piracy affecting the music and movie industries, and that campus officials are implicitly complicit in the illegal downloading done by college students.
Late last month, Cary Sherman, president of the Recording Industry Association of America and point person in the entertainment industry’s campaign to stem the tide of digital piracy, particularly among college students, sent a letter to some 2,000 college and university presidents, delivered via e-mail by David Ward, president of the American Council on Education. Sherman offered a pro forma acknowledgement that there has been some progress regarding “illegal file trafficking of copyrighted content on peer-to-peer (P2P) systems,” stating that the RIAA and others in the entertainment industry are “grateful for the proactive work of many institutions.” But Sherman’s letter also stated clearly that because “the piracy problem on campuses remains extensive and unacceptable,” the RIAA felt “compelled to escalate [its] deterrence” efforts, as reflected in a new wave of lawsuits under the Digital Millennium Copyright Act, announced earlier in February.
(Meanwhile, there’s also some back room speculation around Washington that Mr. Sherman and others in the entertainment industry would like Congress to deal with digital piracy in the long-delayed reauthorization of the Higher Education Act. Who knows: Perhaps violations of copyright law will join drug convictions as cause for students to be ineligible to participate in government financial aid programs?)
The RIAA’s February lawsuits and Sherman’s February 28 letter to college presidents appears to be the first phase of a spring offensive targeting college students and coercing campus officials. The firm but polite language of Sherman’s letter outlines “a reasonable role that college administrators can play” in stemming P2P downloading. The last page of Sherman’s four-page letter identifies four “ways to prevent/reduce student exposure to lawsuits and DMCA notices.”
The RIAA wants colleges and universities to (1) implement a technical network solution; (2) offer an online music service to students; (3) take disciplinary action against students; and (4) provide user education programs about copyright and downloading. Additionally, in his cover letter Sherman suggests that campus officials can “faciliate the [RIAA’s] new deterrence program by forwarding pre-lawsuit letters” to students and others with access the campus network to settle legal claims ahead of RIAA lawsuits
All this smacks of extortion. The RIAA's proposed “remedies” represent an easily inferred threat to campus officials: Do as we “suggest” or we will sue your institution and hold you liable for the activities of your students.
The RIAA cites data that “college students, the most avid music fans, get more of their music from illegal peer-to-peer downloading than the rest of the population: 25 percent vs. 16 percent (percentage of total music acquisition from peer-to-peer downloading).” The RIAA claims that “more than half of college students download music and movies illegally.”
Some of this is simply a numbers game for press releases. The term “college student” generically applies to some 17 million Americans, ages 16-67, who take college courses. In this context, only a small proportion of the nation’s 17 million “college students” depend on campus networks for Internet access, and a far smaller number are downloading digital content. Yes, the downloading may be illegal, but the RIAA’s numbers don’t document some 8.5 million students engaged in illegal P2P activity.
While traditional college students who depend on campus networks for Internet access may, as the RIAA claims, get more of their music from P2P downloading than the general population, the size of the denominator of this college student population -- perhaps some 2 to 2.5 million full-time undergraduates who reside in college dorms and who depend on campus networks for Internet access -- pales when compared to the tens of millions of consumers who purchase broadband services from cable and telecommunications companies such as AT&T, Comcast, Earthlink, TimeWarner and Verizon.
The real numbers suggest that the RIAA has lost sight of the hemorrhaging of digital content via consumer broadband services as it focuses its legal campaign and PR efforts on college students. (In 2005, concurrent with the Supreme Court’s Grokster decision, a billboard in Los Angeles promoting SBC/Yahoo's DSL service used the tag line "faster downloading of music, movies and stuff." Of course the billboard did not say anything about how to pay for "this stuff.")
Additionally, the RIAA's numbers on “John Doe” lawsuits filed in 2004 and 2005, culled from its own press releases, indicate that college students accounted for just 4 percent (329) of the more than 8,400 “John Does” targeted in RIAA filings. In other words, “consumer piracy” represents a far greater threat to the music industry than does the admittedly inappropriate and illegal downloading and file sharing activity of college students on campus networks. Moreover, while the RIAA’s February 28 news release asserts that “college students are the most avid music fans,” the RIAA’s 2005 Consumer Profile reveals that college students (ages 18-24) account for approximately a sixth (roughly 15-17 percent) of the music buying population; in contrast, consumers aged 25 and older purchase two-thirds (66.9 percent) of all recorded music.
Sherman asserts that while “many schools have worked with [the RIAA] to recognize the [P2P] problem and address it effectively … a far greater number of schools … have done little or nothing at all.” Not so! Data from the fall 2006 Campus Computing Survey indicate that the vast majority of colleges and universities have acceptable use policies to address copyright issues and digital piracy. A small but growing number of institutions are following the Cornell model of requiring network users -- students, faculty, and staff -- to complete an online user education tutorial about copyright, P2P, and acceptable use policies before they gain access to their campus e-mail accounts and the university network.
And many institutions punish students for inappropriate and illegal P2P activity. Poking fun at both campus officials and students, a 2003 "Doonesbury" cartoon highlighted the efforts of campus officials to pursue “digital downloaders.” More importantly, this past week the Educause CIO online discussion list has had an active conversation among campus officials about sanctions their instituitons impose for DMCA violations. In contrast, consumer ISPs provide no active user education on the P2P issue and do little or nothing to address digital piracy.
These numbers notwithstanding, the RIAA has not pursued consumer broadband providers on the copyright/downloading issue. When I raised this issue with an RIAA official in fall 2004, I was told, in essence, that the consumer broadband providers view litigation as a cost of doing business, while, in contrast, the RIAA knows that colleges and universities, when presented with the threat of litigation, will "jump."
The RIAA’s continuing -- and seemingly exclusive, if not myopic -- focus on college students as the primary source of digital piracy stands in stark contrast to the activities of its European affiliate. On January 17, the London-based International Federation of the Phonographic Industries threatened action against consumer broadband Internet Service Providers (ISPs) if they failed to move against users who illegally download digital content. Yes, the RIAA has sued individuals who used consumer broadband services to download or distribute digital content illegally. However, even as the illegal downloading and distribution on consumer networks presents a greater threat to digital content than the inappropriate P2P activity occurring over campus networks, the RIAA seems to focus its major PR (and Congressional) efforts on college students.
The campus community has been largely silent in response to the RIAA’s continuing PR assault. Yes, we in the campus community do care about copyright: the Association of Governing Boards of Colleges and Universities’ list of “Top 10 Public Policy Issues for Higher Education in 2005-6” cites intellectual property as a key policy issue for campus officials, noting that “respect for intellectual property -- created as part of faculty research and teaching or provided as commercial content by the information and entertainment industries -- will help institutions maximize and protect their own resources.” And yes, sadly, an occasional campus official has offered up unfortunate (if not just plain dumb) public comments about P2P on campus networks, saying that they don’t consider it a top campus IT priority.
Of course, no college president condones piracy. Still, it is discouraging, but not surprising, that college presidents have not been willing to challenge the RIAA’s PR campaign. Several have offered up their names and the prestige of their institutions to support the RIAA’s PR efforts. To date, however, none have stepped forward to state firmly that while their institutions are addressing digital piracy via user education and student sanctions, they also will not submit to the bullying tactics of RIAA officials.
Let’s be clear: I'm not condoning digital piracy. I'm on record in a variety of forums and published articles, spanning two decades, that copyright matters. Campuses and college students are an admittedly easy target for the music and movie industries concerned about digital piracy. But we are the wrong target. We in the campus community are doing more about P2P and digital piracy -- and doing it far better -- than the consumer broadband ISPs that provide Internet service to more than 45 percent of American households (more than 35 million homes and small businesses).
The RIAA's singleminded focus on college students -- and easily inferred threats to campus officials -- misses the larger issue: Digital piracy is a consumer market problem, not simply a campus issue.
Kenneth C. Green
Kenneth C Green is the founding director of the Campus Computing Project and a visiting scholar at the Claremont Graduate University.
As many in the higher education community are well aware from news coverage here and elsewhere, the Recording Industry Association of America (RIAA), on behalf of its member labels, recently initiated a new process for lawsuits against computer users who engage in illegal file-trafficking of copyrighted content on peer-to-peer (P2P) systems. In the new round of lawsuits, 400 of these legal actions were directed at college and university students around the country. The inclusion of so many students was unprecedented. Unfortunately, it was also necessary.
In the three and a half years since we first began suing individuals for illegal file-trafficking, we have witnessed an immense growth in national awareness of this problem. Today, virtually no one, particularly technology savvy students, can claim not to know that the online “sharing” of copyrighted music, movies, software and other works is illegal. By now, there is broad understanding of the impact from this activity, including billions of dollars in lost revenue, millions of dollars in lost taxes, thousands of lost jobs, and entire industries struggling to grow viable legitimate online market places that benefit consumers against a backdrop of massive theft.
We have made great progress -- both in holding responsible the illicit businesses profiting from copyright infringement and in deterring many individuals from engaging in illegal downloading behavior. Nevertheless, illegal file-trafficking remains a significant and disproportionate problem on college campuses. A recent survey by Student Monitor from spring 2006 found that more than half of college students download music and movies illegally, and according to the market research firm NPD, college students alone accounted for more than 1.3 billion illegal music downloads in 2006.
We know some in the university community believe these figures overstate the contribution of college students to the illegal file-trafficking problem today. Yet new data confirms that students are more prone to engaging in this illegal activity than the population at large. While college students represented only 10 percent of the sample in the online NPD study, they accounted for 26 percent of all music downloading on P2P networks and 21 percent of all P2P users in 2006. Furthermore, college students surveyed by NPD reported that more than two-thirds of all the music they acquired was obtained illegally.
Moreover, our focus on university students is not detracting from our continuing enforcement efforts against individuals using commercial Internet Service Provider (ISP) accounts to engage in this same behavior. Indeed, we have asked ISPs to participate in the same new process that we have implemented for university network users.
Yet this is about far more than the size of a particular slice of the pie. This is about a generation of music fans. College students used to be the music industry’s best customers. Now, finding a record store still in business anywhere near a campus is a difficult assignment at best. It’s not just the loss of current sales that concerns us, but the habits formed in college that will stay with these students for a lifetime. This is a teachable moment -- an opportunity to educate these particular students about the importance of music in their lives and the importance of respecting and valuing music as intellectual property.
The prevalence of this activity on our college campuses should be as unacceptable to universities as it is to us. These networks are intended for educational and research purposes. These are the environments where students receive the guidance necessary to become responsible citizens. Institutions of higher education, of all places, are where people should learn about the value of intellectual property and the importance of protecting it.
The fact that students continue to engage in this behavior is particularly egregious given the extraordinary lengths to which we have gone to address the problem. Our approach always has been and continues to be collaborative -- partnering with and appealing to the higher motives of universities. We have met personally with university administrators. We have provided both instructional material and educational resources, including an orientation video to help deter illegal downloading. We have worked productively through organizations like the Joint Committee of the Higher Education and Entertainment Communities. We have participated in Congressional hearings.
We have informed schools of effective network technologies to inhibit illegal activity. We have licensed legitimate music services at steeply discounted rates for college students and helped to arrange partnership opportunities between universities and legitimate services. We have stepped up our notice program to alert schools and students of infringing activity. And, of course, we have as a last resort brought suit against individual file-traffickers.
With this latest round of lawsuits, we have initiated a new pre-lawsuit settlement program intended to allow students to voluntarily settle claims before a suit is actually filed. We have asked for school administrations’ assistance in passing our letters on to students in order to give them the opportunity to settle a claim at a discounted rate and before a public record is created. This is a program initiated in part as a response to defendants who told us they would like this opportunity, and we are encouraged by the swift response of so many schools. Lawsuits are by no means our desired course of action. But when the problem continues to persist, year after year, we are left with no choice.
An op-ed writer recently published in this forum described this approach as bullying. There is a big difference between using “bullying tactics” and using a “bully pulpit” to make an important point. Should we ignore this problem and stand silent as entire generations of students learn to steal? Should we not point out that administrators are brushing off responsibility, choosing not to exercise their moral leadership on this issue? This problem is anything but ours and ours alone. If music is stolen with such impunity, what makes term papers any different? Yet we know university administrators very aggressively pursue plagiarism. Why would universities -- so prolific in the creation of intellectual capital themselves -- not apply the same high standards to intellectual property of all kinds? This is, after all, a segment of our economy responsible for more than 6 percent of our nation’s GDP.
Furthermore, a Business Software Alliance study conducted last year found that 86 percent of managers say that the file-sharing attitudes and behaviors of applicants affect on their hiring decisions. Don’t administrators have an obligation to prepare students for the real world, where theft is simply not tolerated? Our strategy is not to bully but to point out that the self-interest of universities lies remarkably close to the interests of the entertainment industries whose products are being looted. And, most importantly, we have sought to do so in a collaborative way.
It doesn’t have to be like this. We take this opportunity to once again ask schools to be proactive, to step up and accept responsibility for the activity of their students on their network -- not legal responsibility, but moral responsibility, as educators, as organizations transmitting values. Turning a blind eye will not make the problem go away; it will further ingrain in students the belief that a costly and illegal pastime is sanctioned, and even facilitated, by school administrations.
The necessary steps are simple. First, implement a network technical solution. Products like Red Lambda’s cGrid are promising as effective and comprehensive solutions that maintain the integrity, security, and legal use of school computing systems without threatening student privacy. Some schools have used these products to block the use of P2P entirely, realizing that the overwhelming, if not sole, use of these applications on campus is to illegally download and distribute copyrighted works. For schools that do not wish to prohibit entirely access to P2P applications, products such as Audible Magic’s CopySense can be used to filter illegal P2P traffic, again, without impinging on student privacy.
Second, offer a legal online service to give students an inexpensive alternative to stealing. One such service, Ruckus, is funded through advertising and is completely free to users. When schools increasingly provide their students with amenities like cable TV, there is simply no reason not to offer them cheap or free legal access to the music they crave.
Third, take appropriate and consistent disciplinary action when students are found to be engaging in infringing conduct online. This includes stopping and punishing such activity in dorms and on all Local Area Networks throughout a school’s computing system.
Some administrations have embraced these solutions, engaged in productive dialogue with us to address this problem, and begun to see positive results. We thank these schools and commend them for their responsible actions.
Yet the vast majority of institutions still have not come to grips with the need to take appropriate action. As we continue our necessary enforcement measures -- including our notices and pre-lawsuit settlement initiative -- and as Congress continues to monitor this issue with a watchful eye, we hope these schools will fully realize the harm their inaction causes them and their students. We call upon them to do their part to address this continuing, mutual problem.
Mitch Bainwol and Cary Sherman
Mitch Bainwol is chairman and CEO and Cary Sherman is president of the Recording Industry Association of America.