Aaron Swartz, Civil Disobedience, and Harvard Ethics – Republish of July 2011 Post


Sorry, Aaron, I did not speak long enough or hard enough.

[The July 14, 2011 United States criminal indictment of activist Aaron Swartz, inventor of RSS, for downloading mass quantities of academic journals, is Here.]

The relevant American newspapers have two different takes on the Swartz indictment.

Boston: “Aaron Swartz, a Cambridge web entrepreneur and political activist who has lobbied for the free flow of information on the Internet, was charged in federal court with hacking into a subscription-based archive system at MIT and stealing more than 4 million articles, including scientific and academic journals.

New York Times: “A respected Harvard researcher who also is an Internet folk hero has been arrested in Boston on charges related to computer hacking, which are based on allegations that he downloaded articles that he was entitled to get free.”

I suggest we view this indictment of a Harvard ethics fellow in the following context: “Civil disobedience is the active, professed refusal to obey certain laws, demands, and commands of a government, or of an occupying international power. Civil disobedience is commonly, though not always, defined as being nonviolent resistance. It is one form of civil resistance. In one view (in India, known as ahimsa or satyagraha) it could be said that it is compassion in the form of respectful disagreement.”

JSTOR, the academic archiving service from which the documents were downloaded, has published an ambiguous at best account of its position on this case:

“It is important to note that we support and encourage the legitimate use of large sets of content from JSTOR for research purposes. We regularly provide scholars with access to content for this purpose. Our Data for Research site (http://dfr.jstor.org) was established expressly to support text mining and other projects, and our Advanced Technologies Group is an eager collaborator with researchers in the academic community….Even as we work to increase access, usage, and the impact of scholarship, we must also be responsible stewards of this content. We monitor usage to guard against unauthorized use of the material in JSTOR, which is how we became aware of this particular incident.”

The JSTOR statement also implies that it has already settled with Swartz with respect to the nature of his use of the downloaded content.

I respectfully suggest that the solution here is for JSTOR to publish its complilation of 1,000 academic journals on a non-exclusive basis under a Creative Commons License.

I applaud Aaron Swartz for his efforts.

Copyright Freedom and Edward Snowden

From a op-ed today in the New York Times:

“”Did anyone in the White House or the N.S.A or the C.I.A. consider flying to Hong Kong and treating Mr. Snowden like a human being, offering him a chance to testify before Congress and a fair trial? Maybe he would have gone with President Vladimir V. Putin anyway, but at least he would have had another option.”

Information and knowledge will always seek its own distribution. That is how the machine works. All should consider reading again “Zen and the Art of Motorcycle Maintenance.”

Inducing Copyright Infringement:R&B Hip Hop Artists Seek to Enjoin CNET from Reporting on File Sharing Software

Here is the brief filed by Kendall Brill and Fenwick & West in opposition to the motion seeking to enjoin the CNET reporting on Bit Torrent and other file sharing software: “a full year after they commenced this action, and a decade after the software reviews about which they complain.” Of course we see the irony of CBS, the progeny of Viacom (think YouTube litigation), taking its position here, but we nevertheless applaud it.”

Cannot Copyright Piggyback Photo


A federal appeals court in Boston has denied the claim that the photo on the right infringed the photo on the left. Harney v. Sony Pictures Television, Inc., United States Court of Appeals, First Circuit, January 7, 2013.

Photo District News explains to its photographer audience (hopefully not too busy suing each other), the protectable and non-protectable elements of the photograph”

“The appeals court said that Harney could not claim exclusive rights to the piggyback pose, the subjects’ clothing, the items they carried, or the church in the background with the bright blue sky behind it. But he could claim exclusive rights to the way he framed those elements, the placement of the subjects in the center of the frame, and the bright colors and shadows that make his image distinctive.”

Very, very, subjective stuff, n’est pas?

Disney Santa Paws Movie Does Not Infringe the Copyright of Santa Paws Short Story

“In the plaintiffs’ version, a dog embarks on a mission to save Christmas from a witch threatening to drain the world of holiday cheer with her magic icicle. In Disney’s version Santa Paws combats an evil icicle that threatens Christmas.”

[Source, TheWrap: “Judge Dismisses ‘Santa Paws’ Copyright Lawsuit Against Disney” 9/20/2012]

The precedent established here is that you cannot copyright the idea of a dog combating an evil icycle. One wonders, of course, what the outcome would have been if Disney had been the plaintiff, had produced its movie, and the plaintiffs here had come along and published their short story.

While I agree with the Court’s decision (federal trial court, Missouri), I rue the inherent ambiguities and unfairness of the laws and their litigated enforcement in our courts.

Copyright Battle Literally Turns into Football Replay Review

The Australian High Court has refused to overturn a ruling holding Optus TV liable for copyright infringment for recording and showing from its cloud free over the air broadcasts of the Australian Football League.

From Google/YouTube to Apple/Samsung to Sydney, Australia, the new battles of copyright and intellectual property war are being waged by massive entities seeking to control the distribution of entertainment and ideas.

Although there are no pure or neutral judicial decisions based on law alone, the logic of the upheld appellate court decision seemed, at best, strained:

“The full bench of the Federal Court ruled that the 2004 exemption in the Copyright Act, which was designed to allow people to record TV broadcasts to watch later at a time more convenient, did not apply to the TV Now product, because Optus stood to gain commercially from it. And although the recording system was automated, Optus nonetheless had a role in “making” the recording.”

Some commentators worry about the effect that this decision may have on cloud storage services. I see the issue differently. The case has interest because the initial broadcasts were free, financed presumably by advertising revenue, and it is the time shifting prohibition that Professor Matthew Rimmer of the Australian National University sets out in the ZDNet article referenced here that is in play.

Massive Legal Fees Awarded Against Oxford Press in Library Fair Use Trial

A library defendant deep in the heart of Georgia will be awarded massive legal fees in its successful fair use defense of its library copying practices in Cambridge University Press et al v. Patton et al.

We link to the Publishers Weekly August 10 article that is being read by publishers and libary clients alike this week as the balance of power begins to subtly shift in our post-modern digital culture.

Our previous article “Cambridge Nil Georgia State Nil? A Copyright Derby Analysis” can be found here.

EU Parliment Crushes ACTA ( Anti-Counterfeiting Trade Agreement)

I refer all to the coverage of the vote at IPKat. The AP photo here is also worth a thousand words, and fun to hear from the new French Socialists now in charge:

“the European Parliament has buried once and for all the ACTA treaty … For the French Socialists, the vote marks the first and foremost a new inter-institutional balance of power, with the active participation of citizens in the European debate.”

Responsible intellectual property attorneys everywhere are confident that draconian measures are not necessary, that the large media companies can thrive and prosper in a digital age, and that the fundamental rights of our citizens must be preserved at all costs.

The vote was 478 opposed, 39 in favor, 165 abstained.

Google Drive Terms of Service Confuse and Cause Copyright Concerns

Cloud search firm Simplexo recently voiced concerns about who owns copyrights to documents stored in in Google Drive.

Here is the link to the Terms of Service for the Google Apps Free Agreement. I have no idea why it is drafted this way, but here is the awkward excerpt:

7. Intellectual Property Rights; Brand Features.
7.1 Intellectual Property Rights. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, Customer owns all Intellectual Property Rights in Customer Data, and Google owns all Intellectual Property Rights in the Services.

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