Posts Tagged ‘fair use’

Aaron Swartz’s MIT Mega-Download: Computer Crime, or Mere Copyright Infringement?

Demand Progress founder and “Internet activist” Aaron Swartz was recently indicted on a number of federal charges including wire fraud and computer fraud, reports the New York Times. The charges stem from Swartz’s use of MIT computer networks to download a huge quantity of scholarly articles from online academic journal repository JSTOR.

Swartz also received attention in 2009 for downloading a huge quantity of US court records from PACER, the federal court system’s public case records system. PACER has received a great deal of criticism because it charges fees for downloads, even though the court filings contained within are in the public domain. Swartz’s project aimed to provide access to a significant portion of these documents outside of the confines of PACER. Taking advantage of a pilot program allowing free trials of PACER at some public libraries, Swartz wrote a Perl script that allowed him to download nearly 20 million court documents – an act that got him investigated by the FBI.

Now the feds are after Swartz again, and this time it’s serious.

Swartz’s new indictment is available on Scribd. The government’s theory of the case is that Swartz committed wire fraud and computer fraud by “access[ing] a protected computer — namely, a computer on MIT’s network and a computer on JSTOR’s network — without authorization and in excess of authorized access, and [fraudulently] obtain[ing] things of value” – the academic journal articles. Additionally, the government charges Swartz unlawfully obtained information from a protected computer by “obtain[ing] from a protected computer information whose value exceeded $5,000″ – again, the journal articles – and recklessly causing damage to MIT’s computers.

The first problem with this theory is that, from the facts, MIT’s network is obviously open to at least some downloading of articles from JSTOR by guests on MIT’s premises. Swartz mightily abused these privileges, most seriously by plugging his computer into a router in a closet at MIT in order to circumvent attempts to block his laptop’s IP and/or MAC identifier. (The indictment’s account of what Swartz actually did in the closet is somewhat murky.) However, given that Swartz was using a network that allows guest access, it seems this act was more obviously literal trespassing than computer trespassing. Swartz was in a closet he presumably wasn’t allowed to be in, but when he connected his computer to that router, it appears from the indictment he was obtaining the exact same kind of access that would have been available to other guest users at MIT – access to academic journals. No rootkit access, no superuser privileges – just regular old guest user status.

The second problem with this theory is that the “information” and/or “data” Swartz downloaded is published academic research. The articles in question, and the information contained within them, are anything but secret or proprietary – they can be easily accessed at any academic library with print or online journal subscriptions.

More importantly, the idea that the articles are “information whose value exceeded $5,000″ is extremely problematic. Why? Copyright law.

JSTOR doesn’t sell academic journals to universities. It sells easy access to academic journals to universities. The contents of those journals don’t belong to JSTOR – the rights to the research available through JSTOR are distributed among huge numbers of individual copyright holders, from the journals themselves to the authors and researchers to the universities which sponsored their research.

What’s more, Swartz obviously didn’t “steal” the articles – he simply reproduced them, and he did so for non-commercial purposes. The articles remained accessible on JSTOR. Swartz’s conduct looks far more like potential copyright infringement (a civil, not criminal, offense) than criminal behavior. And it might not even be copyright infringement, as each individual download of an academic article by Swartz would arguably fall under the “scholarship or research” provisions for fair use of copyrighted material of Section 107 of the Copyright Act.

Additionally, placing a dollar value on otherwise freely and publically circulated academic research is problematic. If it would cost a layman $5,000 to access those articles through JSTOR, but nothing to access them for free in a library, is the value of the articles really $5,000? Would it ever really cost an academic researcher like Swartz more than $5,000 to access those articles? If Swartz had stopped by MIT every day for five years, downloading copies of those articles a few at a time, would he still be facing these charges?

Swartz clearly exceeded his MIT network guest privileges, and obviously did something wrong in that closet, but conceiving of PDFs of widely available academic research as Wargames-style “secret computer data” seems to me to involve a serious misunderstanding of copyright law.

Your thoughts and comments are always appreciated.

Photo courtesy Fred Benenson.


Get it in Writing!

Intellectual property litigation is an extremely tough nut to crack.  If ever you consult an attorney for a copyright infringement suit and he tells you that he’ll definitely win the case for you, kindly thank him, pack your bags, walk out, rip his business card up and run far far away.  IP infringement suits are, at best, a coin flip in federal court.  There are a staggering amount of procedural and factual hurdles involved with successfully litigating an IP claim, often coming down to who has the better paper trail.  Florida photographer Todd Latimer is presently learning this the hard way, as his suit against motorcycle manufacturer Kawasaki and magazine publisher Hachette works its way from the U.S. District Court for the Middle District of Florida to the U.S. Court of Appeals for the Eleventh Circuit and back again.

As Photo District News’s PDNPulse blog expains, the case stems from a handshake agreement between Latimer and a Florida motorcycle shop named Roaring Toyz.  The  shop was tasked with customizing two pre-release Kawasaki motorcycles for debut at an upcoming trade show.  Kawasaki requested photos of the bikes for a pre-show press conference.  When Kawasaki expressed its discontent with digicam snaps taken by shop employees, the shop called Latimer for a last minute gig shooting the bikes.  Latimer got the shoot done overnight. The photos were shipped to Vegas and distributed in the press release’s press packet and subsequently ended up in an issue of Hachette’s Cycle World magazine.  Latimer sued, claiming that the shop had commissioned him for a poster that Kawasaki would display at the trade show, and not for magazine or press pack use.  Roaring Toyz, of course, says otherwise.

Here’s where the fun begins.  Since no written contract existed and the few emails that exist were vague at best, the District Court threw out Latimer’s claims on the grounds that he had given an implied license to Kawasaki and that Hachette’s images, in light of the license, were fair use.

What?  Seriously?  Really?

Latimer never dealt with Kawasaki directly, so to award Kawasaki a blanket license for use and further licensing of Latimer’s photos based on a handshake with a third party is kind of absurd.  The Eleventh Circuit agreed, holding that while a license was granted to Kawasaki, a jury trial is required to discern just what scope that license entailed.  As for fair use, the District Court awarded summary judgment without Hachette even raising a fair use defense.  Fair use is an extremely complicated affirmative defense on which the burden of proof rests with the party claiming the defense.  Generally, if the defense isn’t raised, it’s considered waived.  Apparently not in Florida though.  The Eleventh Circuit remanded, however.

The bottom line is, get your agreements in writing.  While it’s most prudent to go through the motions and see your attorney and get a proper contract written up, a simple email confirming the terms of your freelance gig can save you from a world of trouble down the line.  Misunderstandings are more common than any of us want to admit, and it doesn’t take a ton of work to cover your rear end in the grand scheme.


How to Make a Movie Called “Copyright Criminals” Without Going to Copyright Jail

Back in January, prior to its debut on PBS, I wrote about a new documentary called “Copyright Criminals,” which I had seen at the Future of Music Policy Summit in October 2009. “Copyright Criminals” examines the moral, creative and legal dimensions of sampling, focusing in particular on the ways that legal restraints on sampling have altered the course of hip-hop. Those of you who are big hip-hop fans or copyright mavens may already be familiar with the issues the film addresses, but it’s a great introduction for everyone else.

The film’s soundtrack, which serves to illustrate the issues at hand, is a melange of samples of familiar songs, chopped up and reconstituted in classic hip-hop fashion — the Beatles clashing with the Stones over James Brown loops, for example. We’re not talking about library records, we’re talking songs that would be supremely expensive to clear if clearance were even possible. After the screening, I asked co-producer Kembrew McLeod and his partner, Benjamin Franzen, how they tackled the legal issues surrounding the film’s extensive use of samples. They answered that they had carefully plotted a legal strategy in advance, repeatedly consulting a copyright attorney with regard to fair use of the sampled material and hewing to the guidelines of the Documentary Filmmakers Statement of Best Practices in Fair Use, a publication of the Center for Social Media.

In his new article in the Atlantic, “How to Make a Documentary About Sampling — Legally,” McLeod explains at greater length the difficulty of creating a film like “Copyright Criminals” while staying within the bounds of current copyright law. The filmmakers encountered many obstacles to licensing particular songs, including flat-out refusals. In at least one case, a single rights holder derailed a clearance that several other rights holders were willing to approve. The lack of case law on the boundaries of fair use created extra stress for the filmmakers, who feared the statutory penalties for copyright infringement, which can reach $150,000 per infringing act.

Nonetheless, McLeod and Franzen pressed on with their project, and we are the lucky beneficiaries of their efforts. “Copyright Criminals” is an entertaining and edifying film.

Thanks to Puja Patel of the Village Voice’s Sound of the City blog for forwarding us McLeod’s article.

Upstate New York readers: If you’re interested in sampling issues and in the Syracuse, NY area this Friday, April 9, Syracuse University is hosting a conference called the REPLAY Sound Sampling Symposium. Panelists will include Hank Shocklee of Public Enemy and William Patry of Google. The program will also be Webcasted. Visit for more information.