Jan 292013

In 1998 the Digital Millennium Copyright Act amended U.S. copyright law in a few key ways.  Of most relevance here is the additions it made to 17 U.S.C. §§1201 et seq., which includes the provision:

“No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”  §1201(a)(1)(A)

If one does, they can be liable for damages, §1203(c), or, more saliently for this blog, fines of $500,000 and/or 5 years imprisonment for the first offense and $1,000,000 and/or 10 years for subsequent ones.  §1204(a).

The question here is, why?

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Jan 232013

Cyberlawyers who find themselves in Los Angeles this Friday and Saturday may be interested in attending the annual Winter Working Meeting of the Cyberspace Committee of the ABA Business Law Section.  It will kick-off with several hours of high-level CLE, and then continue with break-off groups and task forces focused on specific aspects of cyberlaw.

I’m posting about it here because at this meeting I plan to kick-off a task force for committee members to get started working on the types of issues covered by this project.  If they are something of concern to you, here is one way to get involved.

Jan 212013

The 13-count superseding indictment (now dismissed) against Aaron Swartz basically boiled down to two major complaints: he accessed a computer system, and then downloaded files, without permission to do either.

It was not completely unprecedented in the pre-digital age to penalize acts that at their essence were about doing something without permission. Trespass, for instance, can be criminally prosecuted if someone has entered another’s real property without their permission. But (per the Model Penal Code § 221.2) it is typically prosecuted as a petty misdemeanor, commensurate with the negligible resulting harm. In instances where more serious harm resulted, a harm that could be properly measured in real word dimensions, such as the deprivation or destruction of real or immovable property, then a separate crime could be charged, such as theft – one targeted to address that violent sort of outcome. But even in those cases the crime and its commensurate penalty would hinge on the resulting harm, not the underlying lack of permission (see, e.g., Model Penal Code explanatory note §§ Sections 220.1-220.3). On its own, merely doing something without permission has not been something US law has sought to punish with serious charges carrying lengthy prison sentences.

In Aaron Swartz’s case, however, while his actions, even if true as alleged, resulted in no more measureable harm than an ordinary trespass would have, he was nonetheless charged with multiple felonies.
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Jan 142013

This weekend’s news about the death of Aaron Swartz is a cogent reminder of what this project is about. Aaron was a gifted contributor to the tools and values that make the Internet the extraordinary medium it is, impacting everything from the RSS standard to the Creative Commons licensing system and more. From all accounts he was on a constant quest to free humanity’s knowledge and make it accessible to anyone who wanted or needed it.

These actions challenged the status quo, however, and the status quo fought back. For those who treat knowledge as a currency that can be horded, acts to free it are seen as a threat. Unfortunately for Aaron, those people have power, and they wielded it against him. Furthermore, and most saliently for this project, it happened not through private actions, but by leveraging the power of the state to pursue and criminally prosecute him for his efforts.

Fortunately for Aaron he had competent counsel able to help defend him against the charges laid at his door. For all too many in similar positions as Aaron such counsel isn’t always available, which is a big reason why this project exists. It’s important that there be counsel ready and able to understand both the technological nature of the criminal act alleged and the nature of the crimes charged in order to properly defend them. It is very easy, as we see with this case, for a prosecutor to throw the book at a defendant for having done anything with technology outside of the norm, regardless of whether that technology use really deserves such a sanction, or even any sanction at all.

But having counsel isn’t enough. These prosecutions are backbreaking and bankrupting, and even if the defendant is ultimately acquitted the mere persecution will have already extracted a punitive toll from the defendant. In Aaron’s case he was looking at defense costs and fines in the millions of dollars, and the specter of years if not decades of imprisonment. Who among us could bear such a fate looming over them without their lives being fundamentally altered?

Thus the parallel purpose of this project is to help advocate for better legal policy, so that we don’t empower the state to punish our innovators for innovating. The disruption they spawn, though perhaps painful for incumbents who liked things as they were, are necessary in order to have a future that benefits everyone.