The Aaron Swartz Copyright Reform Act of 2013 (Updated)

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The suicide of Aaron Swartz, inventor of RSS, co-founder of Reddit, and at age 26 accused copyright criminal, was in the fullest sense a tragedy, for him, for his family, for his friends and colleagues. And we can never really know all of what brought him to that point. Decency would ordinarily dictate leaving it at that and leaving his family and friends to grieve. But it’s clear the machinery of his martyr-hood has already begun its work, propelled not least by his family, which issued a statement Saturday pointing a finger of blame at U.S. prosecutors who had charged Swartz last year  with multiple counts of criminal copyright infringement:

Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims.

Swartz was accused of using MIT’s computer network to download the entire copyrighted archives of JSTOR, a non-profit organization that makes academic journals and other material — much of it produce under tax-payer funded government grants — available to universities in digital form. For that he was facing up to 35 years in prison and fines of up to $1 million.

The Wall Street Journal reported this morning that an effort by Swartz’s lawyers to negotiate a plea deal collapsed just days before he took his own life, reportedly because prosecutors insisted that any deal include substantial jail time.

Without getting into the merits of this case, Swartz’s death and seeming martyrdom comes as a nascent movement is coalescing around the cause of copyright reform. At CES last week, a few days before Swartz’s suicide, a panel of representatives from public interest groups organized by CEA, including Public Knowledge, EFF, and Fight for the Future, discussed strategies and prospects for channeling the energy churned up by the battle of SOPA into a legislative agenda to roll back some of the expansion of copyright and copyright enforcement mechanisms in recent years. Among the items topping that agenda is reducing the statutory damages and criminal liability that attach to copyright infringement, such as long prison sentences — the very issue that seems to have been a factor leading to Swartz’s suicide.

The grim symmetry is likely to prove irresistible to those in the movement. The cause of copyright reform is still nascent. But it now may have its martyr.

Update and clarification (1/15): I should have noted that the copyright charges against Swartz had been dropped after he agreed to return the documents he had downloaded to JSTOR. The long prison term he was facing stemmed from charges of wire and computer fraud.

As a practical matter, though, there is a great deal of overlap between copyright law and computer fraud and anti-hacking laws. You can be charged under the Digital Millennium Copyright Act, for instance, without ever touching a copyrighted work, simply for circumventing an access control technology (or providing the means to) that protects the work. Similarly, copyright infringement in certain cases can be grounds for seizing computer equipment if it was used in committing the infringement.

In Swartz’s case, he was charged under the Computer Fraud and Abuse Act for using a computer to access copyrighted works without authorization — in effect treating hacking as a form of copyright infringement in its own right, even though the nexus to actual infringement in his case was severed when JSTOR dropped the copyright charges.

Ironically, in fact, the Stop Online Piracy Act, which Swartz was active in helping defeat, would have sanctioned a kind of government-sponsored hacking of the internet’s domain name system in the interest of protecting copyright.

In any case, the high degree of criminal liability and statutory damages that attach to anti-hacking laws and copyright infringement are viewed by many as two sides of the same legal coin: excessive and disproportionate punishment for accessing and sharing information such that invention and innovation that might run afoul of those laws is deterred.

Swartz is likely to be seen as a martyr to both.