Like many other geeklaw & policy folks, I was baffled from the get-go by the decisions of federal prosecutors to pursue massive criminal charges against Aaron Swartz for downloading papers from JSTOR. I could understand that his activities constituted problematic behavior, but not the blustering punitive response.
If Aaron’s wrongful act was unauthorizedly copying articles, copyright law would seem to have been the appropriate venue for a response. JSTOR declined to bring a civil suit against Swartz. State officials had no intention of bringing criminal charges against him, either. But then the federal prosecutors stepped in, and charges blossomed all over the place. But -not copyright charges-.
Even though prosecutors’ rhetoric in PR statements and press briefings invoked the rhetoric of “theft”, “stealing”, and unauthorized copying, the criminal charges were not based in copyright law. Instead, the prosecutors brought charges under the Computer Fraud and Abuse Act and other similar statutes. If the harm truly was in the unauthorized copies, why not bring charges of criminal copyright infringement? It’s possible the prosecutors might have had a hard time making such charges stick (only one of the three definitions of criminal copyright infringement even plausibly applies); it’s possible the prosecutors didn’t think the penalties for criminal infringement were punitive enough.
Which raises the question: why criminal charges at all? The supposed distinction between civil cases (where person Q can sue person R) and criminal cases (where the government brings charges against person R) is that criminal cases involve harms to society, to all of us. Was Swartz’s downloading a harm to all of us? The federal prosecutors certainly invoked the social harm of theft of copies – but didn’t bring the charges the law provides to address that act. And if the social harms of copyright infringement, the damages to the businesses of content providers, are such terrible things that violators deserve extensive jail time (in excess of that available if the charges had actually been brought for copyright infringement), what to make of the fact that there is no law that provides criminal penalties for patent infringement?
So it was with all these concerns floating in my head, that I read in an email yesterday that the U.S. Department of Justice is considering intervening in a civil copyright case – considering intervening on behalf of commercial publishers against the proposition that there is any legal right to make copies for non-profit, educational use. They are not considering intervening on behalf of the educational users, despite the fact that the copyright statute invokes “multiple copies for classroom use” as an example of legal, permitted fair use.
I am incensed that DOJ staff time was used to even draft this motion – they are asking for more time to decide whether they should get involved in the case, but they have clearly indicated that there is no way they will get involved in the case on behalf of legal educational users. In theory, the government brings charges in criminal cases because there is societal harm. The Georgia State litigation is not a criminal case. This is a case where two parties disagree about the legitimate interpretation of a law.
This situation is as if McDonald’s decided it did not approve of the way some of its customers ate their burgers, sued them for violating a law that left open the possibility that the way the customers were eating their burgers was perfectly fine, and instead of letting the usual court processes decide the disagreement, the government decided that they should help McDonald’s make their customers eat the way McDonald’s wants them to. For the government to even consider intervening in this case signals (incredibly much more intensely than I have thought in my most cynical moments) that they do not think there are any valid interests in copyright other than that of business entities engaging in commercial, market activities.
Anyone who relies on fair use in any part of their lives (and we all do, these days), should be very concerned. The idea that there is an actual public interest related to copyright – despite the ways copyright is increasingly intensely entwined in basic activities of our daily lives, and in issues of free and fair access to information, cultural participation, and democratic engagement – remains (and is perhaps increasingly) an alien concept to our government.