One man. Two boys. Twelve kids.

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320 Responses

  1. Michael Drew says:


    The issue here is broad-based criminal justice reform, and not really very much that’s unique to this case – including figuring out a way to change the careerist incentives among prosecutors at all levels in a way that I have a hard time conceiving of right now but that nevertheless must be conceptualized and advancedReport

    • NewDealer in reply to Michael Drew says:

      I think the biggest problem is that District Attorney is an elected office and even being an ADA can be a good first job for someone who wants to be involved in politics. Every few public defenders get elected or appointed to judgships. This is true in very blue and very red areas.

      Turning D.A. into a civil service position (with testing) could help a lot. Also a law preventing DAs or ADAs from running for office until they have been out of the job for 5 years. Though that is probably unconstitutional.

      The truth is that there seems to be a desire to punish that is hard-wired into human psychology especially for people we perceive as the “other”. Studies show that people would rather punish a cheater even if it means losing an advantage to themselves:

      • Michael Drew in reply to NewDealer says:

        Well, the problem is also just that people will always want to go from ADA just to DA. We have to take control of what determines that.Report

        • NewDealer in reply to Michael Drew says:


          I like the idea of seniority system/civil service exam.

          I don’t know how it is done in other countries but I think elected DAs (or whatever other jurisdictions call them) are unique to the U.S.Report

      • Dan Miller in reply to NewDealer says:

        Would that prohibition be unconstitutional? After all, Congresspeople are prevented from lobbying for their first year, which runs directly counter to their first amendment rights. I’m no lawyer (Burt?), but I’d bet this would go through. Not sure what I think about it, though I like the idea of DAs not being elected.Report

        • NewDealer in reply to Dan Miller says:

          I am trying to think of a long enough time that would make being a prosecutor:

          1. Largely irrelevant to the office and take some power out of a “tough on crime” stance.

          2. Not be overly burdensome to the individual.

          3. There is also a difference between not being allowed to lobby (which is for financial interest) and not being allowed to put one’s name up for office. In some ways, saying Sam Smith can’t run for office because he was a prosecutor also hurts the voters who might like that he was a ADA or DAReport

      • zic in reply to NewDealer says:

        Interesting; much like the problems with elected judges; the positions become political instead of impartial.Report

        • NewDealer in reply to zic says:

          Yup. I am also against the electing of judges.

          This is one area where we need less democracy not more.Report

          • zic in reply to NewDealer says:

            +1, NewDealer.Report

            • NewDealer in reply to zic says:

              The one argument I can make for election of DAs is local control.

              Most Californians like most Americans are pro-Capital Punishment. This is not true in San Francisco. It is also not true in a handful of other deep blue areas like Manhattan, Brooklyn, etc.

              Every person who wants to be DA in San Francisco or Manhattan knows that they have to promise never to seek the death penalty. If DA became a political appointment, I can see a Governor not caring about local issues like that.Report

          • James K in reply to NewDealer says:

            That would make for a great constitutional amendment – no government “officer of the court” positions can be elected.Report

          • Morat20 in reply to NewDealer says:

            Texas is an excellent example of how wrong it can go.

            Prosecutors run, basically, on how tough on crime they are. Perverse incentives abound. Judges aren’t any better (heck, even the State Supreme Court is awful).

            As one lawyer remarked to me, it’s hard to stand before a judge and think “Does he know that I donated to his competitor last cycle?”Report

            • M.A. in reply to Morat20 says:

              I just find it difficult to see a system where there aren’t perverse incentives, especially in states where there’s majority-party control of the state leg and governorship.

              Governor’s appointing? Now your pick of governor tells you who gets appointed judge by partisan leaning.

              Legislature’s appointing or confirming? Best hope you greased the skids with the “right” legislators… and didn’t convict the wrong one’s spouse of something sometime in the past, or decide their divorce hearing the “wrong” way.

              I’d almost say that it needs to have some outside influence. For all that I’d normally say outside entities shouldn’t be involved in the government, I find that I’d prefer leaving initial nomination up to an entity like the state bar and taking it completely out of the hands of elected politicians too. A single level of separation between elected political office and judgeship isn’t strong enough protection from the corrupting influence of partisan politics and perverse incentives.Report

              • NewDealer in reply to M.A. says:

                I think European governments handle this by making judgeship be a separate academic track in law school.

                That being said the Continental system is completely different from the American system. Both have their pros and cons. And I still have faith in juries deciding question of fact.Report

              • M.A. in reply to NewDealer says:

                I served jury duty this summer. I no longer have the faith you have in juries after meeting a jury of my peers.Report

              • Kim in reply to M.A. says:

                I have served jury duty with whackos and crazies. They’re still capable of coming to appropriate conclusions.

                I believe in a jury far MORE with criminal cases, where one/two people can say “no, not guilty” and sit there until they hang the jury. Then it just takes one or two skeptics.Report

              • Kazzy in reply to M.A. says:

                A real man of the people right here.Report

              • M.A. in reply to Kazzy says:

                “The best argument against democracy is a five minute conversation with the average voter.”Report

              • Murali in reply to Kazzy says:

                The best argument against democracy is a five minute conversation with the average voter.”

                Is it me or am I agreeing with M.A a lot recently. First on education, now on democracy. Now, all I have to do is get him to agree with me about markets, regulation and the welfare state and he will be like an american version of me.Report

              • Kazzy in reply to Kazzy says:

                I’d venture to guess that the “average voter” would say folks like MA are the best argument against democracy.

                And where does that leave us?Report

              • M.A. in reply to Kazzy says:

                The “average voter” gets their information from stuff like this. Or the radio talk shows ranting about how Obama, and anyone with above a high school education, is an “elitist gun-grabber.”

                And the quote was from Winston Churchill, who was a very intelligent man all too acquainted with the problems of democracy.

                How about another one? Let’s go with Mencken this time. Great man, great philosopher, great judge of people-as-a-group.

                “Democracy is the theory that the common people know what they want, and deserve to get it good and hard.” (You can easily insert “Free Market Theory” in place of “Democracy” and it works just as well).Report

              • Kazzy in reply to Kazzy says:

                So, if I understand you correctly, the problem with Democracy is that people might decided differently than you based on different sources of information than you? That tells me you have a problem with Democracy in the abstract, not in the concrete.

                And I don’t care who the hell said it. If I think it’s stupid or wrong, I think it’s stupid or wrong. Appeals to authority do little for me.Report

              • M.A. in reply to Kazzy says:

                The problems with “democracy” are, in no specific order:

                Uninformed people and a desire of many people not just to remain uninformed, but to believe they are informed anyways.

                The effects of followership and tribalist mentalities.

                Mob-rule and mob mentalities.

                The bad results that come from the failures of anarchic “free market” systems.

                The tendency of uninformed and/or uneducated people to reject the input of people who do a lot more study on a particular issue. Particularly when it comes with a tribalist antagonism towards “elitists”, “eggheads”, “ivory tower yadda-yadda”, or similar sentiments.

                There are definite problems with “pure democracy.” In many respects this is why the founders of the USA didn’t create one. They spoke often of guarding both against the “tyranny of the majority” and the “tyranny of the minority” and I’ll argue quite sincerely that we may need to add a third category, “tyranny of the clueless.”Report

              • Kazzy in reply to Kazzy says:


                There are legitimate objections to Democracy, no doubt.

                Let me ask you:

                How do you know you are informed? And that you are informed with accurate information?

                Also, are you a gun owner? If so, how many guns do you own? How many of your close friends and associates are gun owners? How often do you fire a gun? If your answers reveal that you have little to no experience, little to no knowledge about guns, can we then exclude you or minimize your role in conversations about gun safety and leave it to the “egghead” NRA?Report

              • Murali in reply to Kazzy says:

                Kazzy, MA has just hit upon one horn of the dilemma that faces any voter when he or she faces widespread disagreement

                i.e. in order for MA to maintain his beliefs about what the best policy is in the face of widespread disagreement, he has to believe that the half of the country who disagree with him is incompetent. That means that any system of decision making which excludes their input but not M.A’s and people who agree with MA produces better policy according to MA’s standards than one which does.

                If he thought that they were on average as competent as he was, he would have to become agnostic on all contentious issues. However, if we thought that no one was justified in believing himself superior to other voters, then we would think that everyone would have to become agnostic on contentious issues. However, dispute or disagreement about issues is what drives democracy. If we all either agreed about an issue or had no opinion one way or another about an issue, we would not need democracy.Report

              • Kazzy in reply to Kazzy says:


                I’m not sure I understand. Why MUST he believe that those who disagree with him are incompetent? To me, this assumption is part of what undermines our democratic process, but it is by no means integral to the process.

                Why can’t he instead reason that those who disagree with him are equally competent to him but seek different ends or seek the same ends but think a different path will get them there? He can think they are WRONG, either in ends or means, but that does not require that he think they incompetent.Report

              • Murali in reply to Kazzy says:

                Why can’t he instead reason that those who disagree with him are equally competent to him but seek different ends or seek the same ends but think a different path will get them there? He can think they are WRONG, either in ends or means, but that does not require that he think they incompetent.

                It does. We may be able to get away with thinking that someone is wrong but not incompetent when we are just disagreeing with someone. But consider what happens when you disagree with half the voting population. In order to think I am right or at least likely to be right about any one question or issue, I must rate my own competence with respect to that question or issue fairly highly. I cannot think that I have a low competence and think that I am likely to get things right. Why? because competence just is about the likelihood of getting the answer to that question correct. We can talk about our exposure to evidence and our epistemic attitudes, but it all boils down to the likelihood of getting the right answer to a certain question, but exposure to different evidence does not make two people more or less competent unless one set of evidence happens to be more relevant and decisive. To go back to topic, I cannot think that I am likely to be right on a question and at the same time think that I have about as much chance as getting it right as a coin flip.

                Suppose we have a million people, all of roughly equal comptence half of whom believe A and the other half of whom believe not-A. In this case, it could be which of the two presidential candidates would be better for America. What is the chance of getting such a ratio if people were on average, well more likely than a coin flip to get things right? Vanishingly small. In fact the upper bound on our likely competence levels is about 50%.

                In order for me to believe that my own preferred policies are right, then I have to appraise my own competence highly. But if I appraise everyone’s competence as roughly equal to mine, I cannot explain how half of us can disagree with the other half.Report

              • Kazzy in reply to Kazzy says:

                Frankly, I disagree.

                I hope you won’t think me incompetent.Report

              • Murali in reply to Kazzy says:

                Kazzy, a few things:
                1. why would you disagree?

                2. We don’t have to moderate our views or demote the other person when it is a one on one disagreement. I haven’t presented my argument to sufficient people to get a statistically significant sample size.

                3. The argument may admittedly be difficult. Being incompetent with respect to this question is no sin. Incompetence just refers to a tendency to get a particular question wrong. Even a high such tendency for this question does not mean that one is particularly bad at arguments

                4. There actually may be a way out of the dilemma. Even if democracy is not the best, it may still be acceptable. If it is the only one which acceptable from everyone’s point of view, then it is the only publicly justifiable one. However, there may be other publicly justifiable alternatives which do a better job.

                Also, even if there are better publicly justifiable alternatives, if we cannot get to those alternatives without significant cost, we may not be obligated to try to do so.Report

              • Kazzy in reply to Kazzy says:

                Let me use a non-political example to demonstrate my disagreement. And, if your theory is not intended to apply to non-political decisions, I can draw up another example.

                Let’s talk hot dogs:

                Joe’s Hot Dog stand makes a moderately-sized hot dog with lots of snap. He toasts his bun. It comes standard with sauerkraut and mustard.

                Jim’s Hot Dog Heaven makes a foot-long dog. It’s got less snap and a soft bun. It comes standard with chili, hot dog onions, and ketchup.

                Both operate in a city of 1 million people. Half the people prefer Joe’s to Jim’s and think it to be objectively superior. Half the people prefer Jim’s to Joe’s and think it to be objectively superior.

                I am in the former group. Must I necessarily think that Jim’s supporters are incompetent when it comes to their hot dog preferences? Why can’t it be that they simply don’t like mustard? Or they value the size and value of a foot long dog over the snap of a smaller one?Report

              • James Hanley in reply to Kazzy says:

                You’re doin’ good, Kazzy, doin’ good.Report

              • M.A. in reply to Kazzy says:

                Wow. So much to respond to.

                To Kazzy:

                How do you know you are informed? And that you are informed with accurate information?

                I spend a reasonable amount of time researching things that are presented to me. I can become reasonably informed on most matters through this process.

                I’m not inclined to take a single source’s word for something.

                Also, are you a gun owner? If so, how many guns do you own?

                I believe I answered this in the previous symposium but no, I do not currently own a gun. This isn’t to say that couldn’t change at some point, but in my present circumstances it’s unlikely to.

                I do, however, own a reasonably nice set of golf clubs, and a wrist-rocket style slingshot that was used at a previous rental property to teach the local squirrels to stay off of the bird feeder.

                How many of your close friends and associates are gun owners?

                A good number of my friends growing up were in gun-owning families. I participated in rifle training and marksmanship practice through Scouting, and enjoyed it. I have several friends currently who are concealed carry licensed.

                How often do you fire a gun?

                Once last year. Before that, it was a couple years between range time. Mostly because of scheduling.

                If your answers reveal that you have little to no experience, little to no knowledge about guns, can we then exclude you or minimize your role in conversations about gun safety and leave it to the “egghead” NRA?

                How interesting. So the totality of your idea of “knowledge about guns” is that one has to be a gun owner who shoots regularly at practice ranges as opposed to someone living in an urban environment who sees the results of rampantly accessible guns in the hands of people willing to gun each other down in the streets?

                Now to you, Murali, who’s put a hell of a lot of words in my mouth that I did not say:

                in order for MA to maintain his beliefs about what the best policy is in the face of widespread disagreement, he has to believe that the half of the country who disagree with him is incompetent.

                Competence comes in two parts: being informed with enough correct information to make an adequate assessment of a situation or topic, and raw mental capacity for rational thought.

                Do I believe that 50% of the population lack raw mental capacity for rational thought? No. There is a portion of the population that does not, a rather small portion. There’s another portion of the population that chooses not to exercise this ability very often, larger but still far less than 50%.

                That leaves then another portion of the population, those who are simply misinformed or wrongly informed. They believe they are acting rationally, but they are acting “rationally” on the basis of bad information. Fox News viewers and those who primarily get their “information” from talk radio fall squarely into this camp. They’re a rather large audience, and I have made it a point to listen to what they’re getting spoon-fed in the past several months in order to get an idea of the perspective they are coming from.

                Let me be perfectly blunt on this point: their perspective is fishing NUTS.

                The list of proposed executive actions from Obama regarding guns, all of which are well within the powers of the Executive and a few merely amounting to “we’ll set up a commission for further study”, were met from right wing radio with accusations of “President Kamerad is throwing the constitution out the window again to ban guns.”

                Now answer me this: if a low percentage of the population are actually mentally deficient in ways that render them incapable of rational thought; if a low percentage of the population are simply choosing not to engage in such; BUT a significant portion of the population are being spoon-fed propaganda like that every day and told bald-faced lies every day that they then internalize and act upon believing it to be correct information, then where does that leave us?Report

              • Roger in reply to Kazzy says:

                I concur with Kazzy and James. People have different selections and this does not imply incompetence. It is entirely possible that they have different goals, values, tastes, or contextual environments.Report

              • Glyph in reply to Kazzy says:

                I mostly agree with Kazzy except for this quibble with his hypo: 100% of the customers are somewhat “incompetent” if they believe that their personal preference in hot dogs implies that their hot dog is “objectively superior.”

                For them to think this thing that is clearly wrong (“best hot dog” is obviously subjective) impugns their competence.

                But it applies equally to all in his hypo, so at least everyone is equally incompetent in this respect.

                Other than that, carry on 🙂Report

              • Kazzy in reply to Kazzy says:


                That is a fair quibble. But that incompetency goes only so far as their presumption that their subjective preference equates to objective superiority. Which, in this scenario, renders everyone incompetent. But that incompetency is limited to how they profess and advocate for their preference and NOT to the preference itself. It is a problem of “how”, not “what” or “why”.

                In reality, you’d likely find that MOST people note their preference as just that, and only a handful of folks usually go so far as to argue that their preference equates to objective superiority. Ironically, it appears MA is doing just that.Report

              • M.A. in reply to Kazzy says:


                I question the capacity, vis-a-vis correct information, of Birthers.

                I question the capacity, vis-a-vis correct information, of the “Obammie iz a Commie” crowd.

                I question the capacity, vis-a-vis correct information, of the “Obama’s a muzlim” crowd.

                And in general I question the capacity, vis-a-vis correct information, of people who believe they are being correctly informed by a steady diet of talk radio and fox news affiliates.

                They are getting “information” on matters that can indeed be objectively fact checked and that information, more often than not, is dead wrong.Report

              • Kazzy in reply to Kazzy says:

                What segment of the population genuinely believe those things?Report

              • Roger in reply to Kazzy says:

                This attitude of absolute answers irregardless of context, values and goals points to the dangers of intolerance.

                People do have different goals and contexts, as the wiener story reveals. The danger in society isn’t incompetence as much as it is intolerance. It is people who believe that they know better than the person deciding. This leads naturally to the intolerants convincing themselves that they should actively and if necessary coercively “help” the incompetents by telling them what they can and can’t do.

                Strong intolerance is inherently a zero sum, win lose attitude or goal. Absent rational persuasion, it leads to a situation where someone has to lose.

                This does not imply that I recommend moral relativism. Depending upon goals and context and values, I strongly suspect that certain courses will tend to lead to better results according to the individual making the choice. I just believe that since people do have different values and situations and because knowledge is never perfect, that the betterway to discover the best course is to allow individuals most affected to make the decision and experience the feedback.Report

              • M.A. in reply to Kazzy says:

                What segment of the population genuinely believe those things?

                Based on polling and election results?

                Well, here’s one take.Report

              • Kazzy in reply to Kazzy says:

                There is so much to unpack in that headline that I don’t even know where to begin.

                Let’s try another way: What are your standards for “competency”?Report

              • Murali in reply to Kazzy says:

                Do I believe that 50% of the population lack raw mental capacity for rational thought? …

                Let me be perfectly blunt on this point: their perspective is fishing NUTS.

                I didn’t accuse you of thinking that 50% of the people lacked the basic capacity for rational thought. I just said that you thought that a good portion of that 50% had a higher than purely random chance of getting things wrong for a whole variety of reasons. That they are incompetent is just a more polite way of saying that they are among other things fishing nuts.


                But that incompetency goes only so far as their presumption that their subjective preference equates to objective superiority. Which, in this scenario, renders everyone incompetent. But that incompetency is limited to how they profess and advocate for their preference and NOT to the preference itself. It is a problem of “how”, not “what” or “why”.

                As far as my theory about widespread disagreement goes, it only applies to disagreement about statements that purport to be objective, not differences in preferences or any sentence which are subjective. That’s because the latter are not the kinds of things about which such disagreement is possible*.

                If on the other hand, the people in your example are really talking about the objective goodness of hot dogs and not merely expressing subjective preferences poorly, the logic still applies. Suppose that there were some capacity to recognise good hotdogs and tell them from worse ones. How do you account for the fact that half the puplation of the city disagrees with you. Either everyone’s ability to discern objectively good hot dogs from bad is equal in which case any one person really only has at most a 50% chance of getting it right or people who agree with you are much more likely to correctly identify objectively good hotdogs than people who disagree with you.

                *Unless you are talking about what any one person prefers. But this , while being about preferences are about objective truths about one’s preferences. i.e. even if my preference for chocolate over vanilla is subjective, it is an objective fact that I prefer chocolate. My reward centers light up when presented with chocolate.Report

              • Kazzy in reply to Kazzy says:


                I think I get what you’re saying. In a nutshell, you are arguing that people are entitled to their own opinions, not their own facts.

                If I look at the sky and insist it is red, you can reasonably question my competency at recognizing colors or evaluating the sky.

                However, if I look out my window in China and tell you that the sky is black and you look out your window in America and see that it is blue where you are, you can’t reasonably question my competency, because we are both, in fact, accurate. There is not always one absolute truth.

                I think the reason we often seem to reach the point you describe is because we do not deal in concrete terms.

                Let’s say we are talking about the economy. Everyone wants the economy to prosper. But one person’s definition of “prosper” is different than another. So I might say that doing X will make the economy prosper based on my definition of prosper. You might have a different definition of prosper and show objectively that X will NOT cause the economy to prosper. Thus, you conclude that I am incompetent because I am arguing a falsehood. But I’m not! I’m arguing based on an entirely different definition of “prosper”.

                So if we continue to talk in vague abstracts, then, yes, we can easily run up against the issue you describe. But if we instead say, “We’d like to see GDP grow by 8%,” or whatever, then we can reasonably assess the different preferred approaches for getting us there and then MAYBE can begin to assess competency. But even that is limited because our ability to predict the future is limited!

                Generally speaking, I’d rather not question the competency of the person across the aisle from me unless they give me ample reason to. Advocating for a different tax policy, to use one example, does not suffice.Report

              • James Hanley in reply to Kazzy says:

                Generally speaking, I’d rather not question the competency of the person across the aisle from me unless they give me ample reason to. Advocating for a different tax policy, to use one example, does not suffice.

                There’s my New Year’s resolution. I’d love to see that approach spread across the aisle.

                Prez. Reagan and House Speaker Tip O’Neill used to have drinks together in the evening. They didn’t agree on much, but they were still able to view each other with respect, and that made a working relationship possible. No such thing has existed since then, and the approach of not having any respect for the values or intelligence of the folks across the aisle has become the predominant feature of American political debate. Talk radio bears much of the blame, and the right in general bears more blame than the left. But the left is in no position to throw stones, and they’ve shown themselves more ready to follow the right’s lead than to forge a better path.Report

              • Kim in reply to Kazzy says:

                Clinton and Gingrich managed to be statesmen. Sit down and make compromises, and do what was best for the rest of us.Report

              • Kazzy in reply to Kazzy says:


                You make me think of my relationship with Will Truman. Sometimes I am shocked by how often or how much he and I disagree on an issue. I don’t tend to think of Will as a “conservative” even though I assume he identifies as such based on his participation in the conservative post-election Leaguecast. Why? Because Will and I developed a good relationship before many of those differences surfaced. So I don’t see Will as my “opponent”. I see him as a friend who sometimes has very different ideas about things. But who I know is sincere and honest and well-intentioned. Every now and then he’ll express an opinion that I might categorize as extreme or “crazy” had I heard it on talk radio. But I know Will is neither of those things. So rather than reassess Will, I reassess my perception of those opinions. I may end up no closer to agreeing with them, but I’m better able to recognize them as legitimate opinions formed by competent, thoughtful people.Report

              • James Hanley in reply to Kazzy says:

                You’re disgustingly decent. I may have to reconsider my opinion of New Yorkers (which currently rests on my familiarity with Northern Exposure, Seinfeld and the Yankees).Report

              • Kazzy in reply to Kazzy says:

                Well, I’m from New Jersey, and have a number of years to go before NY surpasses my home state for the place I’ve lived the longest.Report

              • James Hanley in reply to Kazzy says:

                You know that famous New Yorker cover, the world as seen from New York’s 9th Avenue?

                Well, that’s how New York and New Jersey look from the Midwest. I know the difference between someone from St. Paul and someone from Minneapolis (the twin cities, doncha know) better than I know the differences between a Yorkie and Jersey.Report

              • Kazzy in reply to Kazzy says:

                That’s one of my favorite covers; it really does sum up the attitude of a lot of locals.

                For all intents and purposes, I am a New Yorker. I grew up 10 minutes from the GWB and don’t identify with a whole bunch of NJ culture. Bergen County, along with Westchester in NY and Fairfield in CT, make up the “wealthy Manhattan suburbs”, of which I am a part. But, because we WERE New Jerseyians, living on THIS side of the river, we certainly never call ourselves New Yorkers.

                Twin cities? The mere notion seems ludicrous.Report

              • BlaiseP in reply to Kazzy says:

                There are lots of different New Yorkers, too. There’s all the different boroughs, each with its own stereotypes. There’s Westchester County and its down-at-the-heels cousin, Putnam County. There’s Long Island, sorted out into North and South Shorers.

                But north of Putnam County, things go downhill. Farther north and west, past Saratoga, on toward the Canadian border, it’s like Deliverance Country. Albany’s a wreck, Syracuse likewise. Buffalo and Rochester, Rust Belt, wearing their brave state out of memory. Serious hillbillies out there.Report

              • Kazzy in reply to Kazzy says:

                I now live in Orange County. Not the cool Orange County of CA. The Orange County where they film that show about motorcycle builders. It gets real country, real fast.Report

              • NewDealer in reply to M.A. says:

                I also think that most cases in Continental Europe are handled by a panel of judges who serve as their own investigators/fact finders as well. I need to do a more in-depth study though.Report

      • Murali in reply to NewDealer says:

        Altruistic punishment is precisely what keeps coordination games going. i.e. It is only a bad thing if the equilibrium that it maintains is bad. That is not to say that the current equilibrium is good, but we wouldn’t want human nature to be any different as without altruistic punishment, social coordination would not even be possible.Report

  2. Fnord says:

    I agree with you that criminal justice reform ought to be aimed at helping everyone, and that the current system has a tendency to deny justice to the poor and PoC more often than it does to middle class whites. And it’s a shame that criminal trials against white middle class defendants make the news when similar miscarriages of justice are common or even routine among people who “aren’t like us”.

    But don’t you think this is a little mean-spirited? It would be one thing if he’d been an advocate for the drug war or “tough on crime” policies in the past. But a quick look at his wikipedia page doesn’t suggest any such explicit hypocrisy. Or are you implying the Wu thinks that those cases are prosecutors “stretch[ing] the law to stop a criminal syndicate or terrorist organization”?

    Yeah, many people get screwed as badly as Swartz was, and yeah, they don’t make the news, and yeah, their invisibility to the middle-class is a problem. But Swartz was already in the news, and I doubt Wu was the one who first put him there. So all those other people who wrote about Swartz, will you be making posts to excoriate them, too?

    (And if I really wanted to mirror your initial post, I’d also point out that most of those other people are white, and Wu is not; I don’t really think that’s what motivated you, but it’s basically what you’re accusing Wu of.)Report

    • Pierre Corneille in reply to Fnord says:

      I agree with much of what you say here. However, it struck me that perhaps Kazzy may have been commenting more on the general phenomenon of people rallying to one person’s (Swartz’s) side while ignoring the huge number of people accused of lesser crimes.

      In partial defense of those who see a hypocritical discrepancy, I think whether the law was “stretched” in this case is not as clear-cut as Wu seems to think. Orin Kerr at the Volokh Conspiracy seems to agree that the “stretch” was not as much of a “stretch” as some claim ( , although in this post, he is commenting only on the law as he understands it and not on whether the prosecutors abused their discretion). And the law might in many particulars be unjust and the prosecution’s zeal might be too, err, zealous. But what Swartz did, as I understand it, involved a lot more intent than what I imagine many crimes of simple drug possession, for example, involve. (Again, that doesn’t make the prosecution correct, only that the case is less clear cut.)Report

    • Kazzy in reply to Fnord says:


      I will say this about my motivation to use Wu’s article:
      1.) I received the article via a link aggregator email.
      2.) Wu acknowledged a relationship (albeit not a particularly close with) with Swartz, which is likely clouding his judgement.
      3.) That particular quote, in which he refers to Swartz as a ‘reckless young man’, stood out to me. Swartz was 26 and apparently some sort of internet or computer genius who did something he knew was illegal and had the potential to cause harm, even if it didn’t.

      You are right that many others are writing about Swartz and that, were I to read every article, Wu would likely be neither the only nor the worst “offender”. Perhaps it is unfair to single Wu out. But he is obviously a smart guy with a large platform and if he wants to discuss prosecutorial abuse, his commentary being limited to the Swartzs of the world, I feel, is worthy of criticism.Report

      • Philip H in reply to Kazzy says:

        3.) That particular quote, in which he refers to Swartz as a ‘reckless young man’, stood out to me. Swartz was 26 and apparently some sort of internet or computer genius who did something he knew was illegal and had the potential to cause harm, even if it didn’t.

        The “harm” Mr Swartz is alleged to have caused was taking academic research findings (often paid for with public dollars) out from behind lucrative paywalls at scientific journals – paywalls which the universities that did the research are on the outside of FWIW. In essence he took what should have been freely and easily and publicly available science, and made it freely and easily available to the public, while dinging the profit margins of a few heavy hitters in the publishing world.

        For that he was essentially accused of being a terrorist. And then hung himself.Report

        • Kazzy in reply to Philip H says:


          I’m a bit of an intellectual property rights absolutist. It’s entirely possible that the placement of that information behind a paywall was legal but unethical. But I’d need to see a better case made than I have thus far to accept it. How, exactly, was that information created? Who created it? With what money? Under what terms? If the universities and the politicians who helped make the creation of that information possible did so with the understanding and agreement that the information would be owned by publishing companies and not publicly available, than Swartz’s target ought to have been the universities and the politicians, not the publishing companies. If they legally negotiated a deal such that they had exclusive rights to that information and the ability to sell it on their terms, than his actions could have caused harm by depriving them of their contractually negotiated rights.Report

      • Fnord in reply to Kazzy says:

        It’s true that Wu has a personal relationship with Swartz. And it’s true that that likely makes him inclined to judge him less harshly than he otherwise would. But, if anything, that makes you calling him out even more unnecessarily nasty. It’s perfectly natural and understandable that he has a stronger connection to people he knows.

        As for your first point, so you wrote about this article because this article is the one that came to your attention? No doubt Wu wrote about Swartz because that’s the case that came to his attention (see above about there being a personal relationship).Report

        • Kazzy in reply to Fnord says:

          An entirely fair criticism. I was using Wu as a proxy for a broader media narrative I saw after reading the Wu article. This probably deserved a long form post that more comprehensively analyzed the media narrative surrounding Swartz, but I didn’t know if I was up to that task. What I do know is that I got an email in my inbox containing a link wherein a writer described the deliberately criminal actions of a 26-year-old engaged in civil disobedience as the behavior of a “reckless youth”, which I found objectionable for a number of reasons. I certainly could have presented my feelings on the matter better.Report

  3. zic says:

    I think Swartz stands out, rather like William Tyndale. He was only one Christian among many, just as Swartz was only one copyright-violator among many.

    But both were harshly prosecuted for a the activism of making information available to ordinary people.

    I certainly agree that most regular young men entrapped in the criminal justice system have little hope of justice, particularly if they can’t afford a lawyer. But I’m not sure I agree with the description of Swartz, just a reckless young man since I happen to live with young men (and an older one, too) much inspired by Swartz’ work.Report

    • Kazzy in reply to zic says:

      There are probably good reasons to defend Swartz and his actions, but holding him up as a reckless young man getting railroaded by an unfair justice system is a bit myopic.Report

      • A Teacher in reply to Kazzy says:

        Is it?

        Or is it that they also tend to ignore other reckless young men who get railroaded and that kind of ignorance is frustrating in and of itself?Report

      • zic in reply to Kazzy says:

        Kazzy, I’ve spent my life writing software, journalism (which still suffer frequent copyright violation by the publishers), and designing fashion. I’m married to a musician, composer, arranger, and software engineer. I’ve a son who develops open-source software. We have investments in companies that develop software and hardware for medical diagnostics.

        Copyright law is rooted in a world which has very little to do with the world you and I inhabit; the world that allows us to communicate like this without ever knowing each other. Swartz’s civil disobedience is him getting railroaded by an unfair justice system that’s implementing law that was outdated with the advent of recording devices, magnetic recording tape, and the photocopy machine, let alone the internet.

        And that research Swartz was liberating was research you and I paid for, that actually is supposed to be available for our benefit.

        One of the great goods of government is that it pays for research, that it collects information, and that it makes that information available to the public. I strongly believe in that open exchange. As a journalist, I depended on access to research, and without JSTOR membership, I frequently found barriers to it; I’m thankful to a local library for helping me out dozens of times.

        Swartz’s civil disobedience was important. He was an inspiration to many, many people who’ve contributed their time and talent to making this world you and I share here — the internet — possible. To suggest his harassment by Justice is anything but railroading buys into the copyright status quo. I can’t go there. I’ve no intellectual property protection on my chosen profession, designin knits which are highly sculptural; I have investments that have to constantly plan for problems of patent trolls, I’ve had my work illegally distributed by publishers. I’ve refused work because of contracts that would have turned it into work-for-hire and taken my copyright on it.

        Swartz message matters. It matters a lot, which is why I compared him to Tyndale, who was burned at the stake for illegally publishing the bible in English.Report

        • Kazzy in reply to zic says:

          “And that research Swartz was liberating was research you and I paid for, that actually is supposed to be available for our benefit.”

          This is where my eyes start to glaze over a bit, and I’ll point you towards Burt’s excellent comment down below for a far better response. But you and I also pay for public roads and schools and a host of other things. That doesn’t mean I can go tear up chunks of the highway or start hosting dinner parties in the cafeteria.Report

          • Kim in reply to Kazzy says:

            but we let you schedule runs down the street. Even if that means closing down the street.
            In the public interest, is it?Report

          • Stillwater in reply to Kazzy says:

            But you and I also pay for public roads and schools and a host of other things. That doesn’t mean I can go tear up chunks of the highway or start hosting dinner parties in the cafeteria.

            I haven’t read Burt’s comment, so this might be way off base, but the above comment seems like a confusion to me. Government funding of roads is to government funding of research *as* open access to roads is to open access to research.

            For your analogy about destroying roads to hold, Swartz would have had to destroy – not make more accessible – government funded research.Report

        • Kim in reply to zic says:

          Content Creators rarely care about piracy. What they care about is Word Of Mouth, which is piracy’s best friend.
          5 people read your book at the library. One likes it. He recommends it to 10 friends, only 3 of which wind up at the library (the others bought it from a bookstore, or Amazon, or what have you…).

          Content Creation is a bit of propaganda even at the best of times — you gotta convince someone they’ll like it.

          But a ton of people buy games that they pirate. Buy games that they read full walkthroughs of.

          (and some gaming companies pirate content right back, rather than trying to stop piracy. [that was a Bad Idea, 0verflow!])Report

  4. BlaiseP says:

    When Tim Berners-Lee set forth the hypertext spec, the HREF tag was meant to provide a footnoting capability, allowing one scientific paper to link directly to another. It’s degenerated to the point where most useful information, much of which is a matter of public record and paid for with public moneys, is now hiding behind paywalls.

    On Monday, the prosecution filed a final document in criminal case No. 11-er-10260.

    “The United States Attorney for the District of Massachusetts, Carmen M. Ortiz, hereby dismisses the case presently pending against Defendant Aaron Swartz. In support of this dismissal, the government states that Mr. Swartz died on January 11, 2013.”

    The paper was signed by Ortiz and Heymann. It was then duly filed in PACER, where it is available to anybody for 10 cents, or 10 cents more than Swartz thought people should have to pay for a public document.Report

  5. Jaybird says:

    We had this argument over David Gregory.

    In that case, however, the argument was more like “oh, you shouldn’t apply the law to *HIM*…” rather than “if the law makes what he did illegal, we need to change the law!”

    I was one of the “having laws and applying them selectively is tyranny” kinda folks, myself… but I couldn’t help but notice that the argument that David Gregory should have been prosecuted was considered a right-wing talking point.

    With that said, it’s striking when we see the full hammer of the law come down hardest… and when we see the hammer hold back. If you examined the circumstances for “are these people breaking the law in defiance of government power?” versus “are these people breaking the law in service to giving the government more power?”, you might notice a pattern.Report

    • Kazzy in reply to Jaybird says:

      “I was one of the “having laws and applying them selectively is tyranny” kinda folks…”

      Perhaps I misread you, but I got a different impression from your dialogue with JHG. It seemed you were focused more on the existence of many of the laws in the first place, though that doesn’t necessarily mean you do not also consider their selective application tyrannical. I thought about linking back to that post because some of the same themes were brought up, but that probably would have required more than an “Off the Cuff” post.

      I think you are right in your last paragraph that that is yet another dividing line between who does and who doesn’t get prosecuted. But I’m speaking more to the media’s apparent response.

      And I’m MOST curious to see when right wingers start posting pics of Swartz mugging for the camera. Or, better yet, pictures of other white guys that vaguely resemble him looking menacing.Report

      • Jaybird in reply to Kazzy says:

        Oh, this is just about right wingers being hypocrites?

        Never mind, knock yourself out.Report

        • Kazzy in reply to Jaybird says:

          If that is all you take from what I’ve said thus far, I’m not sure what to tell you.

          I’m fairly confident Wu is liberal, given what I’ve read of his. And would venture to guess that Swartz and many of his supporters also are. I think our society’s fuckedupedness on race knows no party lines. But I also don’t think it does us much good to pretend that there isn’t a unique strain of fuckedupedness on the right that took pleasure in vilifying a slain teenager in hateful, disgusting ways. So if you want to disregard everything else I said because of a hastily made joke/stab at the end of a comment, go right ahead.Report

  6. Glyph says:

    I actually want to focus on a different part of the quoted sentence:

    ““It’s one thing to stretch the law to stop a criminal syndicate or terrorist organization. It’s quite another when prosecuting a reckless young man.”

    No. No, it’s STILL wrong, even then. If the law doesn’t allow us to stop the syndicate or organization, change the law. Don’t stretch it. Laws aren’t supposed to be stretchy. That’s why we don’t call them “guidelines”.

    Also, while I take your fundamental point and do not disagree that the system is failing all sorts of people (but obviously the poor and minorities more badly – I think Wu’s article sort of obliquely hits this with”today our criminal laws are so expansive that most people of any vigor and spirit can be found to violate them in some way. Basically, under American law, anyone interesting is a felon. “) I think to criticize Wu for not focusing on a different aspect of the problem means we’d have a tough time writing any article or blog post.

    I think it’s OK to see “this guy was facing THIRTY-FIVE YEARS AND BANKRUPTCY for a crime that incurred no physical or economic harm” as an injustice, and to consider a minority member facing equivalent consequences on say drug charges an equal injustice, without widening the scope of each post or article to include both injustices.

    Last, while the law is the law and should apply to all, and I am not pleading for special treatment or consideration (but rather, sane laws and a reduction in the ongoing drive to felonize anything and everything), I do think many people take into account the perceived “wastefulness” of such prosecutions.

    Like, remove race from the equation, and let’s hypothetically have two young white hooligans facing 35-year sentences. One is charged with being a loitering graffiti artist but has no other notable accomplishments; and one is charged with a non-violent, non-property (in the economic sense as in Swartz’ example) crime, but has already provided serious societal value by inventing some new piece of software or technology.

    Now, it’s entirely possible that the graffiti artist would have gone on to be a great artist, or make some other societal contribution (and obviously, such a draconian sentence is unjust just in the merits, and he has the right to just go on and be a “nobody” with a life and a family etc. whether he ever “accomplishes” much or not); but I understand why people would be more upset about the squandering of a young man who already has a proven track record of contributing to the furthering of tech or culture.

    Doesn’t make one more “unjust” than the other, and both are “squandering/waste”, but I get why people would focus on one more than the other (of course, are thousands of graffiti artists or drug users worth at least 1 Swartz? This is why we say “injustice to one is injustice to all”.)Report

  7. Burt Likko says:

    Swartz was an exponent of an idea which claims to be very radical and new but in fact is quite reactionary and indeed almost medieval in its world view. The idea is simple: information cannot be owned. The ideology is communism of information, which masquerades as being new but in fact is the way the world worked before the Enlightenment and the Scientific revolution.

    Swartz’ argument — that because the government subsidizes the creation of information X, X therefore is public property and X therefore is therefore available to the public for free — is a massive ruse which ought not to stand up to a moment’s critical thought. The government subsidizes the creation of a great many things. Say, lumber. Massive Lumber Company pays for a license to harvest timber from a national forest. The license is sold for a rate less than an equivalent license from private land, so the public is subsidizing that lumber. If Swartz sneaks on to Massive Lumber Company’s yard and hauls away a truckload of lumber and dumps it in the town square with a “FREE” sign tacked to it, what we would call him is a “thief.” If his defense was that the public subsidized harvesting that lumber and therefore his taking it from Massive Lumber Company wasn’t really theft, a judge would rightly dismiss that proposed defense as possessing so little merit as to be a waste of the court’s time.

    Swartz and other information communists claim their actions are different because unlike the lumber, consumption of the information does not render it unavailable to the next person who wishes to consume it. Information is easy and cheap to replicate. Easy and cheap, but not free or effortless. Someone pays for the electricity. Someone had to write some code somewhere. Someone had to design and build a chip. When scaled, the marginal cost of these things diminishes to a very low point, but even if the point approaches zero, it is in fact greater than zero.

    Before you cheer on Swartz and Anonymous and any of these other “cyber-activists” and chant “information wants to be free!” (as if information were somehow sentient) take stock of the extent to which your own income depends on your ability to amass, compile, analyze, and redistribute information. I’m a lawyer — acquiring and using information is 100% of what I do professionally. It pays my mortgage and feeds my family. If you work with computers — coding software, managing networks — it’s 100% of what you do. Or an author. Or an insurance adjuster. Unless you make something or manipulate something with your hands, it’s very close to 100% of what you do, too. How does a doctor learn of new procedures? That’s information. And the people who devise those procedures should be compensated for doing it. The notion that someone owns information and ought to be financially compensated for the value of that information is at the bedrock of our modern economy. Change that, and you have to very radically change the notion of whether what you personally do has value at all.

    Which ought to at least give you pause, if not scare you.

    Why was Swartz prosecuted as aggressively as he was? Because not only was he a thief, he was a thief who rallied others to become thieves themselves. If he wanted to ideologically crusade for a vision of a new sort of economy in which information was not subject to valuation, privatization, monetization, and commoditization, very good. That’s what life was like in medieval and classical times. Artists needed private sponsors and only rarely could make a living through directly selling their work, and scientists had little financial incentive to investigate and discover new things, but yes, there were arts and sciences and other advances through the exchange of information so it’s not like progress would stop. But it seems much more likely to me that it would slow.

    And maybe there are other dimensions to your vision that would come in to play. Feel free to explain them.

    But what you ought not to do while advocating for this truly radical vision of a truly different world than the one we live in is steal someone else’s property to do it. Whether you want the world to be different than it is now, it is the way it is now and if you break the rules of the way the world is now, you should expect punishment. We have freedom of speech in this world too, and that can be exercised without fear of punishment. Theft, however, is not speech. And Swartz stole. I feel bad for his friends and family that he took his own life under the pressure of prosecution, but I don’t feel in the least bad that he was prosecuted in the first place. And all the hand-wringing about how he was simply a foolish and impetuous young man with so much potential and a cause he believed in is a distraction from the basic problem that he got into trouble because he stole something that belonged to someone else.Report

    • Kazzy in reply to Burt Likko says:

      Yea! What Burt said!Report

    • Michael Drew in reply to Burt Likko says:

      The Swartz case, after seeing described his belief, apparently held to a radical degree, tough that could well have been overstated (I actually have no idea what he believed), that information should flow completely freely and be totally unowned, got me thinking about “free-information”-ism and privacy activism, and how (my impression is) they often coincide in single people (one and the same person, I mean). It made me wonder whether the intersection of those two convictions in a person isn’t really just the desire to decide which people and institutions get to have privacy and which don’t. I really don’t know. I’d be quite interested to hear what anyone with an interest in either or both of those ideas thinks about that possibility.Report

      • Kazzy in reply to Michael Drew says:

        Anecdotal, but I have a friend (who works in IT no less) who is a pretty staunch believer in privacy rights. He is also a staunch defender of privacy, insisting it is not only ethical to engage in, but the businesses practices and other forces that motivate him to do so are what are unethical. It’s a curious pair of positions to hold, no doubt.Report

        • Michael Drew in reply to Kazzy says:

          One of those is not meant to say privacy, surely, but I think I get your meaning.Report

          • Kazzy in reply to Michael Drew says:

            The second one should be “piracy”.Report

            • Michael Drew in reply to Kazzy says:

              Figured something of the kind. And I should be clear: if the position is simply that government basically can’t have anything without clearing certain high barriers, but that everything else should simply be a free-for-all of what you can protect vs what they can get, that’s fine. That’s a position. I’m just not sure everyone knows what theirs is.Report

              • Kazzy in reply to Michael Drew says:

                Exactly. I think there is a principled argument in defense of piracy (I don’t agree with it, but I know it exists). But if one holds that, it ought to be consistent with their other principled beliefs.

                What I am not particularly sympathetic to is working backwards to create a justification for a behavior borne out of laziness or convenience or whathaveyou. I know many people who point to this Oatmeal cartoon to justify their piracy:

                But to me, that just proves that they want what they want when they want how they want it. It is not as if the content is wholly unavailable; it is just available in a way that they don’t like.Report

              • Kim in reply to M.A. says:

                Baen had his view. I find it a good one.
                For those who say, “But my EVA anime!” (fansubbing). Anno made millions off body pillows and other paraphrenalia, well after his show was over.
                The Doujinshi scene RUNS on information piracy (stealing character designs). But everyone in japan LOVES it, and designs characters for it. Because word of mouth gets your game played, and your movies watched.Report

              • M.A. in reply to Kim says:

                Did a little research on this. It turns out that it’s due to the presence of the fansubbing groups that US anime fans are able to get legitimate shows brought over and shown on Hulu for free, Hulu+ or Crunchyroll or other distributor websites behind a minimal paywall, and on DVD in a reasonable timeframe.

                The fansubbing groups exposed a critical flaw in the system that was making it take years for shows to migrate from one continent to another. That, in turn, seems to have made the other marketing possibilities for a good show much more lucrative since the shows can be mainstreamed, and allows fans to get their hands on memorabilia and toys and other goodies without having to spend overly large sums of money on an often dodgy import market.

                There are some who can scream “but piracy” all day long about the fan subtitle groups. The market reacted to them and made a better product that the fans can enjoy.Report

              • Kim in reply to Kim says:

                The -market- gets a free “trial” wherein the customers can express interest (via downloading the fansubs), and the distributors can pick and choose based on actual customer interest.
                Particularly if they pick up the show before it’s done airing (and thus the fansubbers stop subbing), they’ve got a built in audience clamoring for the ending.Report

              • Kazzy in reply to M.A. says:

                Doesn’t matter. If I have sole right to distribute something and you distribute it and I object, you have no ground, moral, legal, or ethical, to object. That is how I see it. If piracy is indeed good for the industry and they choose to adjust their business model to allow for it, that is their right. But no one gets to decide that on their behalf.

                I might think that offering free samples will increase business for a particular restaurant. Hell, I might be able to prove that it will. That doesn’t free me to take food without their permission.Report

              • Kim in reply to Kazzy says:

                And yet people steal grapes from grocery stores all the time.
                Custom is a powerful thing.

                What is this right to distribution? Where does it come from, really?Report

              • M.A. in reply to Kazzy says:

                Until very, very recently your right to control distribution was limited to the right to distribute it for a profit. That’s a key phrase: “willful and done for profit.” That wasn’t changed until 1976 and it was a horrible change in law, because all of a sudden it took innocent activities (such as a student photocopying a section of a library book for reference, rather than keep the book and prevent other people from using it) and made crimes of them.

                When you call yourself an ” intellectual property rights absolutist”, I see the words “copyright extremist” and I don’t think I’m too far off the mark. The policies you propose are about stripping away the rights of consumers and ought to be antithetical to anyone liberal or libertarian.Report

              • Kazzy in reply to Kazzy says:

                Why is it “liberal” to view consumer rights as trumping producers rights? And I should clarify that I am a “IP rights absolutist” in the abstract, in that I believe IP rights are absolute and real; that does not mean I support every IP right law. I think that the rights holder should have sole discretion over how his property is used and distributed. So if the rights holder to a particular song is okay with the video or song being uploaded to YouTube but not okay with people burning the CD and selling or distributing it, he ought to be free to go after the latter and not the former.Report

    • Mike Schilling in reply to Burt Likko says:

      he got into trouble because he stole something that belonged to someone else.

      And, unlike a banker who foreclosed on a home without any documentation that authorized that foreclosure, he wasn’t a member of the class authorized to behave in that fashion.Report

      • Kim in reply to Mike Schilling says:

        Bear in mind that it was Anonymous’ hacking that caught some of those foolz.Report

      • This is what bothers me about this case in particular.

        The HSBC settlement in particular, in comparison to the treatment that Schwartz got shows an appalling degree of difference.

        If you steal less than a billion dollars, you’re a criminal. If you defraud people out of billions, you’re a valuable job creator who was just trying to help folks.Report

        • Tod Kelly in reply to Nob Akimoto says:

          Well, sure. There’s a lot of truth to that.

          The question, then, is this: If we agree that this is a problem, which solution do we favor? Rewriting financial regulations so that we might prosecute those billion dollar fraudsters, or ceasing to prosecute people who steal less that a billion dollars?

          Either direction makes the world more equal, but you end up in very different places.Report

          • Nob Akimoto in reply to Tod Kelly says:

            My answer isn’t that you rewrite the laws, it’s that DA’s and US attorneys should be focusing on financial crimes with the same amount of zeal that they do in defending status quo cases like this one.

            But they won’t. And that’s what makes it egregious.Report

            • NewDealer in reply to Nob Akimoto says:

              The prosecutor in the Swartz case is known for going after white-collar crime.

              Like many other people, I am deeply upset about the HSBC decision. The tricky part is how to punish the bank without punishing innocent people caught in the cross-hair. Those people include:

              1. The hundreds of thousands or millions of people with ordinary bank accounts and loans at HSBC.

              2. The overwhelming majority of employees who did not know and were not involved in the money laundering schemes directly or with knowledge. This includes janitors, secretaries, bank tellers, to probably very high up people. Wouldn’t a proper punishment for HSBC be to dismantle the bank completely? At least their US operations? How do you this without wrecking havoc on the economy and many individuals?Report

              • Nob Akimoto in reply to NewDealer says:

                We could start with: “Throwing the people who knew about this into jail”.

                Allowing crime because it’s done under the aegis of a company that is large enough to have disruptive effects on the entire economy if punished is by definition, unjust.Report

              • NewDealer in reply to Nob Akimoto says:


                But it is also unjust to make people needlessly suffer in order to come up with a worthy punishment for a large organization like HSBC.

                I’m frustrated by this as well and certainly think that enacting laws that severely limit the size of banks might be a good idea.Report

              • Kim in reply to NewDealer says:

                Meow. Caturday came last week.
                Right after Bank Failure Friday.Report

              • Mike Schilling in reply to NewDealer says:

                The hundreds of thousands or millions of people with ordinary bank accounts and loans at HSBC.

                If only there were a federal program to insure their deposits.Report

            • Tod Kelly in reply to Nob Akimoto says:

              In the case of HSBC that appears to be the case, yes.

              However, you will still need to rewrite the laws and regulations. The terrible thing about most of the big stories of unpunished financial malfeasance that we talk about wasn’t that laws were broken; it was that laws were written in a way that no one that acted without fiduciary cause actually broke any laws.Report

    • zic in reply to Burt Likko says:

      I strongly disagree with this, Burt. When we sell a timber-harvest license, we’re selling a product, not an idea. But when we invest in the development of composites using the waste products of lumber, that intellectual foundation should be available for people who want to ue it manufacturing new products. Right now, we pay for the research, and private companies benefit in a way that’s corporate welfare.

      I went round and round this topic with Megan McArdle, back when she blogged at The Atlantic, on drug discovery. She said government investment in drug discovery didn’t matter; yet when she finally investigated, she found that a quarter of the market (and I questioned her results, because it didn’t include research done in other countries that was brought to market here) was based on publicly-funded research. So the socialism you’re describing is a two-way street; what you call ‘communism of information’ is, without that communism, also corporate welfare.Report

      • Kazzy in reply to zic says:

        “When we sell a timber-harvest license, we’re selling a product, not an idea. But when we invest in the development of composites using the waste products of lumber, that intellectual foundation should be available for people who want to ue it manufacturing new products.”

        The information that Swartz pirated/stole/liberated was not just an “idea”. It was the product of labor. Someone had to work to create it. Therefore, it is very much a product. An idea would be pondering whether action X could cause outcome Y. A product is determining the answer to that question and then determining how to implement action X and how to ensure outcome Y happens and what to do about side effect Z. Etc.

        Above you made the point that public funding was used to create this research. Which implies very much so that the information can and should be owned but that the ownership rights should lie with the public. Here you seem to be arguing that ideas can’t be owned by anyone at all. Which is it?Report

        • zic in reply to Kazzy says:

          Yes. And if Acme Corporation paid for that labor, they would own it. But if you and I pay for it, we have no right to it?

          Two or more people often develop the same thing independently; because ideas are public and multiple people often struggle with the same problem. If you and I both develop the same new idea next week, but I go public first, does that means you have no rights to your labor? That’s exactly what you’re suggesting.

          And I do not thing the current Intellectual Property Rights a good platform for holding a discussion; there are too many problems already. I firmly believe in IP rights; but they have to be what you do with ideas, not just the ideas themselves.Report

          • Kazzy in reply to zic says:


            Let me be clear and say that while I support IP rights in the abstract, I have my own set of issues with current IP laws. I think they should allow for simultaneous discovery. An IP claim should have the burden of proofing that the claimant knowingly pirated their work. And that is only the beginning of my issue with many of the laws as currently constructed.

            Regarding funding the work, it is not as if Joe the Taxpayer paid Bob the Research to answer a question and then Publishing House Inc moved in and took the report and refused Joe access. It is far more complicated than that.

            I work in an independent school which is funded almost entirely through tuition. That gives parents a certain amount of control and access but not a limitless amount. They can’t sleep at the school, even though they pay for the facilities and overhead. They can’t ask me to do their taxes during working hours, even though they pay my salary. They can’t demand access to the curriculum I create, even though they paid me to develop it. And if they are unhappy with this arrangement, they should have considered the terms of the contract before signing on the dotted line. I realize this isn’t perfectly analogous to a tax payer because of the role of choice, but that means the tax payer should be complaining to their elected representatives, not to the publishing companies.Report

        • Burt Likko in reply to Kazzy says:

          Ideas aren’t subject to IP laws. But expressions of ideas, which is part of what I’m calling “information,” are subject to IP laws, for exactly the reasons Kazzy articulates. “The U.S. tracked down and killed Osama bin Laden” isn’t copyrightable. A film named Zero Dark Thirty, however, is copyrightable, and I say, it ought to be. A lot of people worked very hard to make that movie, and a lot of people put a lot of their own money at risk to make that happen. On a moral level, they deserve to be compensated for their work and their risk.

          If you can proffer a regime to reach such a result, other than our current regime of intellectual property laws, cool. I’m all ears. I’ll certainly listen to “burn-it-all-down-and-replace-with-something-totally-new” kinds of IP reform. But I’m not cool with you stealing my intellectual property as a demonstration of why that kind of reform is a good idea. Even if you want to claim that Swartz was engaged in civil disobedience, civil disobedience still involves the concept of disobedience. According to the law, it was stealing. As for whether the law ought to change, well, we’re having that conversation right now, aren’t we?

          Civil disobedience is something that can produce a net benefit to a political dialogue — when it is substantially harmless. Stealing a whole lot of private property is not substantialy harmless. Reasonable and effective alternatives exist for people to argue for IP reform that do not involve theft. Larry Lessig, for instance, has never broken the law, despite some rather radical and effective demonstrations of why the existing law is inadequate to meet current technology.

          Swartz stole intellectual property, even if government money was used, in part, to develop that property. The government of France subsidizes nearly every movie made in France. Does that mean that citizens of France get to watch those movies for free? Or maybe only taxpaying citizens of France? What about me, a U.S. citizen — I pay no French taxes, but I might enjoy a French movie from time to time. But why should I have to pay where a French taxpayer does not? Isn’t the information what you’re saying ought to be free? Certainly that’s what Swartz was saying — he wouldn’t have distinguished between me and the French taxpayer. He made information developed in part but not in whole with U.S. tax dollars available to anyone. His notion of the “public” morphed from sentence to sentence so as to reach his ultimately-desired outcome: making all information free to everyone.

          I’ve yet to hear a convincing case that such a paradigm is preferable to the status quo. I’m not hearing such a case being made now — I’m hearing the tissue of an excuse that “The government partially paid for something, therefore I want access to it for free right now.” I’m not convinced.

          Consider: the government partially pays for my house, in the form of letting me deduct the interest on my home mortgage from my taxes. But you are in no way morally or legally justified in entering my home at will and declaring it available for free use by the public as a demonstration of why the home mortgage interest deduction is bad public policy. The notion is risible. If you did such a thing, I would want you to be threatened with prosecution and particularly if it were my house you thus stole, it would be just and proper and appropriate for you to be threatened with serious punishment, not just a slap on the wrist. That’s my house, not yours, not the public’s, not the government’s.

          And yes, I see that as a very close analogy to what Swartz did. If it were my research paper he made available for free when I had decided to charge people for the right to read it, then that’s my research paper, not Swartz’s, not the public’s, not the government’s. If the government wanted to assert proprietary rights when it subsidized my research, it should have made that a condition of the subsidy. It did not. Stealing from me to argue that it should have is neither a reasonable nor a responsible way to suggest the government failed to exercise appropriate diligence when giving me that subsidy.Report

          • Nob Akimoto in reply to Burt Likko says:

            I’m pretty sure in this case the papers that were posted weren’t put under JSTOR because they could be charged for access, but because they were published in peer review journals which by their nature have a relatively limited circulation and thus the need to use an online aggregator like JSTOR to distribute them wide enough to be of use.

            That is to say, if someone else could and would provide these services for free (maybe Google should take a crack at it) then the authors would likely have no problem with it, given that they’re not getting any money from JSTOR to begin with.Report

            • Kim in reply to Nob Akimoto says:

     has a preprint archive. most physicists make use of it.Report

            • Burt Likko in reply to Nob Akimoto says:

              Except it’s not free. Google isn’t free. Google costs millions and millions of dollars a year. Google shifts the cost of the services it provides from the end user (you) to someone else (advertisers, typically). To you, it looks free, but it really isn’t.

              I don’t think JSTOR works that way, but then again I’ve never tried to use it.Report

              • James Hanley in reply to Burt Likko says:

                JStor is paid for by libraries. I.e., ultimately by student tuition. I.e., mostly by undergraduate tuition, even though it’s used mostly by grad students and faculty.Report

              • Nob Akimoto in reply to Burt Likko says:

                This is pedantry. Obviously google has operating costs. And obviously it has a revenue model for off-setting those costs and being a business. But it also does provide services in a way that makes shifting those costs more effective (and less egregious for users) than other types of its predecessors have. A great example for this is the way Google Scholar works.

                JSTOR works as a cost-shifter as well. They cost-shift the distribution costs from the journals to the universities and other organizations that have subscriptions but they do so by way of making it available online.

                Now the question becomes with the new types of publishing infrastructure available online, whether or not JSTOR is going to remain cost effective as a model.Report

              • Anne in reply to Burt Likko says:

                My problem with JSTOR is that my professional org. publishes a Journal paid for if not in all at least in part by my dues. I do get a hard copy of the journal. But if I am traveling on work away from my library and need to look up an article I can’t access JSTOR to look at our Journal that I paid for. I realize my Professional Org. could negotiate something with JSTOR but I suspect I would be paying for the Journal AGAIN out of my dues.Report

              • Mike Schilling in reply to Burt Likko says:

                Google is a terrible analogy. It costs millions and millions of dollars because it has a huge server farm, lots of well-paid employees, and handles gazillions of requests a day. Putting content that already exists online and making it freely available to a small set of interested parties is immensely cheap, and can be could be done with minimal subsidies. Think

              • Well, I started the analogy, probably because I basically would like google scholar to have more access to full articles instead of just abstracts…but yeah.Report

          • Kolohe in reply to Burt Likko says:

            “Civil disobedience is something that can produce a net benefit to a political dialogue — when it is substantially harmless”

            I’m with you on most of what you’ve said so far, but this is incorrect.Report

            • Burt Likko in reply to Kolohe says:

              An illustrative example, maybe?Report

              • Kolohe in reply to Burt Likko says:

                I wouldn’t call MLK’s actions ‘substantially harmless’ and it’s presumptuous of me, but I don’t think he would call them that either.

                The civil rights movement action plan was deliberately (and correctly) about making people uncomfortable; plus they specifically sought to change the balance of power through, among other means, altering the underlying economic relationship with the larger world prevalent in the African American community.Report

        • James Hanley in reply to Kazzy says:

          The information that Swartz pirated/stole/liberated was not just an “idea”. It was the product of labor. Someone had to work to create it.

          Keep in mind that in most cases academics are not paid directly for their publications. So whatever value is stolen, it’s most certainly not taken from the articles’ authors, but from the publishing organization itself.

          Now keep in mind that somebody has to make the resources for publications available, and there has to be money flowing in from somewhere to cover that. So making it all free may undermine the whole process–to future potential authors’ disadvantage–by making it too unprofitable to bother becoming a publisher.

          On the other hand, technology makes that all a much cheaper activity now, so that I expect freely available peer-reviewed journals to become increasingly commonplace, undermining the current pay-for-access system. E.g., “The Journal of Artificial Societies and Social Simulation.” The real roadblock is getting these from mere obscure startups to being able to challenge the traditional journals for status (because the status of the journal you publish in can make the difference between getting tenure and having to look for a new job).

          I think that hurdle will be breached, if not immediately, then in the long run. One means will be publication in those by well-respected and safely tenured academics, whose name appearance will increase the journal’s prestige. E.g., the one I linked to has a lead article by Robin Dunbar, a big name in his field. Another way might be through erosion of the traditional journal’s status via erosion of the peer review concept. In Economics these days, most big ideas are bandied about on blogs and publicly tossed back and forth between different scholars to the extent that they are already well-known prior to receiving the (less and less) authoritative stamp of approval that comes from journal publication. Finally, I wouldn’t be shocked to see some high profile organizations, like say the American Economic Association or the American Political Science Association, etc., decide to take their journals out of the hands of the publishers and shift to an in-house on-line service. Not soon, probably, but I can see a post-my-generation generation of scholars demanding it.Report

          • Kazzy in reply to James Hanley says:

            “Keep in mind that in most cases academics are not paid directly for their publications. So whatever value is stolen, it’s most certainly not taken from the articles’ authors, but from the publishing organization itself.”

            Does that make it any less ethical? It is easy to justify for some folks because, hey, they’re just ripping off some giant faceless corporation.Report

          • M.A. in reply to James Hanley says:

            You may find this interesting:

          • Chris in reply to James Hanley says:

            For me, the journals’ position is even worse than this. The bulk of the work done in publishing a submitted article, from soliciting editors/reviewers to actually doing most of the actual work in publishing the journal, is done by the journal editors (who often also solicit submissions). The editors are usually paid (but not always), but not very much. The journals basically pay for the copy, own and operate the printers, and pay for the hosting (sometimes).

            The pay journal model is dying. If things like Swartz’ act of civil disobedience hasten its demise, then he will have accomplished something with that act.Report

      • zic in reply to zic says:

        I should add: I think Swartz wanted to take things to an extreme. But I also think what he highlighted deserves serious attention, that there’s a middle ground that might better foster intellectual property development. Having ideas owned does not do this.Report

      • Mo in reply to zic says:

        What about selling IP that leads to the development of a drug? Say from the University of California? Can I steal all the Enbrel I want because my tax dollars paid for it?Report

    • Mike Schilling in reply to Burt Likko says:

      Quite seriously, what you’re saying scares me. The issue isn’t really that Swartz was prosecuted, it’s the “Who Breaks a Butterfly Upon the Wheel” level of punishment he was threatened with: thirty years in prison. It’s that threat that led directly to his suicide. Do you really want to argue that that’s justified based, not on the value of what he stole, but on the ideology behind it?Report

      • zic in reply to Mike Schilling says:

        I think I very much agree with Mike here; it’s obvious Swartz broke laws. It’s also obvious that those laws fail to work in the modern environment and need revisiting.

        But it was the type of prosecution that was a problem; his civil disobedience (for that’s what it was) did not deserve 35 years in jail, it deserved an open airing in the shortcomings of current IP law.Report

        • Will H. in reply to zic says:

          Oddly enough, part of that is for crossing state lines, or he couldn’t have been prosecuted under 18 USC 1343, the wire fraud statute.
          Two elements: a) scheme or artifice to defraud, and b) use of wire communications in interstate commerce.Report

          • zic in reply to Will H. says:

            I’m guessing they’d have used RICO of they’d found any evidence he’d profited, too.Report

            • Will H. in reply to zic says:

              I had to look at that, because wire fraud is a racketeering predicate act, and it takes two (or one for the conspiracy charge).
              The other charges that I’ve seen [18 USC 1029 & 1030] aren’t racketeering predicate acts, but can be predicate acts for another offense which is a racketeering predicate act. Here’s the rundown:
              If he had falsified an authentication feature, that would have left him open to identity fraud [18 USC 1028].
              If he had proceeds from the endeavor, and attempted to use the proceeds in its continuance, he would have been open to money laundering [18 USC 1956 or 1957, depending on the amount].

              Most RICO claims come under 18 USC 1962(c), material participation in the operation or management of an enterprise; though procedurally, it’s typical to plead 1962(d), the conspiracy charge, right along with it. There were a number of Crips in Wichita that were charged in this manner, and it was the conspiracy charge that held (due to the one predicate act requirement).
              Subsections (a) & (b) of 1962 proscribe investment and acquisition of an enterprise. These types of claims are typically rather rare. These were written to target the take-over of legitimate businesses by the mob, and commission of crimes to gain standing or advance in mob-like organizations.
              But to make the claim under subsection (c), there would first have to be an enterprise. There’s a three-prong test there: common purpose, formal or informal organization, and ascertainable structure distinct from that inherent in the conduct of a pattern of racketeering activity. That is, subsection (c) is essentially a conspiracy claim.
              The last part of the three-prong enterprise test has been pretty much swept away by the Boyle decision, which is pretty stretchy, as James & Nob were talking about upthread.Report

      • Again, analogize to objects. If A steals $400 from your wallet, or if B steals $400,000 from your retirement account, or if C steals $400,000,000 from a mutual fund in which you invest, it seems quite just to say that A, B, and C should be given different levels of punishment for each action. This despite the fact that all three crimes qualify as “grand theft.”

        How much did Swartz steal? A lot. Steal a lot, get a lot of puishment. Doesn’t bug me a bit.

        Now, let’s take that lowest level of theft. Let’s say A steals $400 from your wallet. Then A goes and tells B and C that you’re a rich guy who’s likely to replace that $400 and if they want to get some money, you’re a good target to steal from. Do you think that’s information that should be taken into account when prosecuting A for his crimes?

        Swartz not only stole, he encouraged others to steal too.Report

        • Tod Kelly in reply to Burt Likko says:

          I’d like to see someone (not me) do a post on the correlation between the nature of the information Shwartz stole and people’s cheering of it.

          I am having a hard time shaking the feeling that part of what I’m witnessing is people’s disregard for the value of academic research in general and academic papers specifically. I get the impression that a lot of people I’ve been reading think of it as no different from boring, dry, government reports – that is, totally boring stuff, and why should I have to pay for that?

          I get the sense that people understand, even if they don’t agree, *why* the people who made Gilmore Girls should be paid for their efforts, but can’t fathom why we should be paying the eggheads for whatever they produce.Report

          • Chris in reply to Tod Kelly says:

            Tod, I wonder, if you polled most academics — the folks who write these articles — about whether they should be freely available, what would the consensus be?Report

            • Tod Kelly in reply to Chris says:

              Coming from a family chock full of them, I am reasonably sure that they would say “yes” quickly and loudly.

              If you ever want an earful, try telling an academic that the books they assign to students are too expensive, and the authors and small publishers should make due with less revenue.Report

              • Chris in reply to Tod Kelly says:

                I have friends who’ve written popular textbooks, and less popular trade and academic books. I’ve written articles for academic books, and edited and reviewed books and textbooks. I know the processes and issues well.

                Journal articles are a separate thing entirely.Report

          • zic in reply to Tod Kelly says:

            I am having a hard time shaking the feeling that part of what I’m witnessing is people’s disregard for the value of academic research in general and academic papers specifically.

            The very act of publishing means you’re making ideas public. The problems with JSTOR is who then has access to the published information and at what cost; particularly since a very large proportion of the research available on JSTOR was funded by public money.

            The IP laws that apply to published papers are copyright law, the right to control distribution (which is the law Swartz violated), not the intellectual protection of the ideas within those papers. What’s protected is the specific words, the images. Not the ideas.

            Products from those ideas would be protected by patents; but again, it’s theoretically the individual patent, the implementation of an idea, not the idea itself. Of course, this has all gone haywire, and it’s an industry for patent trolls now.Report

            • Will H. in reply to zic says:

              A couple of quibbles here:
              The idea is not subject to copyright. The form of it is.
              That’s why Chilton & Haynes could both publish books about working on cars.

              Schwartz did not violate copyright law in unlawful distribution. He may have planned to do so at some point, but unless the law is written to include attempts or endeavors, it’s irrelevant.Report

          • Nob Akimoto in reply to Tod Kelly says:

            I think the larger issue is rather the cost of accessing academic research, not so much as the nature of it.

            If it cost $4000/yr to get access to a random episode of the Gilmore Girls, people would have less trouble with not paying for it.Report

            • Chris in reply to Nob Akimoto says:


              In addition, the public doesn’t generally do much funding of the Gillmore Girls. On the other hand, it does much of the funding of academic research.Report

              • Nob Akimoto in reply to Chris says:

                I would honestly prefer if the US Library of Congress had a broader mandate to basically do what JSTOR and other journal aggregators do and you know, offer everything for free and be funded by Congressional mandate.

                It would ultimately probably save universities lots of money (licensing fees, etc.) and make information more widely available.Report

              • James Hanley in reply to Nob Akimoto says:

                I prefer that academic societies make their journals available on-line, and let aggregators like Google Scholar make them findable.

                I think the LOC approach is reasonable, legitimate, and superior to the current model, but it is too centralized for my taste. LOC then becomes the sole organization deciding what should be readily findable. Letting a variety of search engines thrive means different organizations making different decisions about what’s findable, so that the more obscure–or perhaps I should say, newer and less established–journals aren’t shut out so readily and have a better chance to establish themselves.

                If what we want is for things to be more widely accessible, multiple doors is superior to a single door.Report

              • I suppose it would be more that LOC would be a place where all published journal articles could be available as full text. Then places like Google Scholar can still be around to serve as an aggregator.

                Either way, it’d be a hell of a lot better than the current system. (And I say this as someone with access to journal searches)Report

              • James Hanley in reply to Nob Akimoto says:

                LOC would be a place where all published journal articles could be available as full text.

                I have no problem with the LOC doing that; I just don’t want it to be exclusive to them. Because there’s always the question of when a journal becomes legitimate enough to be included. Better to have multiple organizations making such choices than just one, whether public or private.Report

          • Mike Schilling in reply to Tod Kelly says:

            There’s a lot of cheering of Swartz going on at Lawyers Guns, and Money, and they’re all academics. The issue being, I suspect, that whatever downloading stuff JSTOR costs them far exceeds anything they earn from publishing journal articles.Report

            • Chris in reply to Mike Schilling says:

              I believe they’re all at universities with JSTOR access, as are most academics. You don’t even need to be on a university computer, just log in with your university ID. I’ve been using JSTOR so long, I remember when I had to log into a proxy server. Man, those were the days (like 5 years ago).

              Actually, I used to go on JSTOR and download dozens of old papers (from the 19th and early 20th century) to read for fun, from journals like Mind, including a lot of William James articles that you can’t find anywhere else, James being a bit of a hero of mine.Report

        • Nob Akimoto in reply to Burt Likko says:

          You know that in reality C would get a slap on the wrist and maybe a minor civil fine from the FCC and be free to go, while A would get a 30 year jail sentence and B get some sort of probationary offer.Report

          • Sorry that should be FTC.Report

          • Burt Likko in reply to Nob Akimoto says:

            I don’t know that. Jeffrey Skilling doesn’t know that, either.Report

              • And what makes Skilling so remarkable is that he was an exception that proves the rule.Report

              • Kazzy in reply to Nob Akimoto says:

                Yea. Let’s fix that. But let’s not make victims out of people who aren’t. Isn’t a major part of civil disobedience accepting the consequences for your actions in service to demonstrating your point?Report

              • Nob Akimoto in reply to Kazzy says:

                35 years for a few thousand dollars worth of documents is disproportionate, especially when Swartz and his attorneys were more than willing to accept punishment so long as it wasn’t an effective half-life sentence.Report

              • Will H. in reply to Nob Akimoto says:

                . . . and then placing restrictions on his computer use as a condition of release.Report

              • Nob Akimoto in reply to Kazzy says:

                You’re generally arguing a strawman, at least against the people here.

                I don’t think there’s many of us that would say Swartz should get off scot free.

                Swartz himself and his attorneys didn’t argue that.

                What is egregious is the level of prosecutorial zeal that was being expended and the level of punishment being demanded on Swartz.

                It was ridiculous. As Mike notes below, it was more than either Skilling or Ken Lay related with Enron.Report

            • Mike Schilling in reply to Burt Likko says:

              Skilling only got 24 years. Ken Lay’s maximum possible sentence was 30 years (though he died before sentencing). Clearly Swartz is worse than either of them.Report

              • We’ll never know what Swartz would actually have got had the prosecution gone forward. Come to think of it, we don’t know if Swartz would have been convicted of anything at all. We’ve all simply assumed he was guilty as charged.

                Prosecutions typically threaten the maximum punishment, for a whole bunch of reasons. Judicial discretion during the sentencing phase is an important part of due process so that the acutal punishment fits the seriousness of the crime.

                Prosecutorial overzealousness does not mean that the underlying offense should be decriminalized. What it sounds like you (and other critics of the prosecution) are arguing for here is the notion that this offense is of a low enough magnitude that it could not possibly have warranted a punishment of this gravity. Okay, I see the argument and your query about the market value of the information involved is the most searching one I’ve read here so far, but I still disagree, for reasons stated rather elaborately elsewhere.Report

              • NewDealer in reply to Burt Likko says:

                Some questions and thoughts.

                We both know that the overwhelming majority of cases plea or settle because the stakes are too high for all parties involved. Also the fact is that if every criminal and/or civil case went to trial, the courts would grind to a halt and cost a lot more money than they do know. It is also true that even though the United States has only 5 percent of the world’s population but 25 percent of the world’s prison population.


                1. Do you think it is good and/or necessary that most criminal cases end in a plea deal?

                2. Do you think the issue of needing so many cases to plea means that we have a problem with too much crime, too many criminal laws, both, neither?

                3. Do you think prosecutorial overzealousness is needed?

                4. How often do you think people plead guilty for crimes that they did not commit because it is more rational to go to medium or minimum security for ten years than face f0rty at maximum security? Especially if they are poor and relying on a good-faith but overworked and under-budgeted public defender?

                5. Do you think we can have a criminal justice system where number 4 is not an issue? Why or why not?Report

              • Burt Likko in reply to NewDealer says:

                1. Good? No. Necessary? Yes. Economics, limited resources, encourage cooperation, all and more of the reasons you mentioned create a system by which plea agreements are an unavoidable feature of the system.

                2. The necessity to plea is not relevant to the question whether we have “too many” laws. If the proposition is that we have “too many” laws, the question becomes “which ones shall we delete?” Once we knock down the easy ones like legalizing marijuana and decide that dueling probably isn’t a big social problem anymore and we don’t really need a tort of alienation of affection, it starts to get rather difficult to make laws go away because laws address very real problems that we must adopt a high degree of callousness towards in order to allow them to go unaddressed.

                3. By definition “over” zealousness is never needed. The question is whether a particular degree of zeal is appropriate. In this case, I am unconvinced that too much zeal was shown precisely because the defendant’s behavior was intended to be and actually was an inspiration to others to follow his example. But in another case? Well, that would be another case.

                4. I reject strenously the idea that if a person is represented by a public defender, this means that the person is getting sub-standard representation. It’s true that P.D.’s have limited resources but it’s also true that P.D.’s have some of the deepest and strongest personal convictions that their clients should get good service. Even if they don’t particularly like their clients, which is a facet of the attorney-client relationship every P.D. I know considers quite irrelevant. As for people pleading guilty when they have a realistic shot at a better verdict, I think that is 100% of all guilty pleas. I think there are people who are actually innocent and know they are innocent who nevertheless confess to accusations and subsequently plead guilty, and they do so for all manner of reasons.

                5. No. People are risk-averse and lots of them don’t ever think clearly. We will never stop people from having the many and varied motives they have to behave as they do. So there will always be people who either give in to pressures to plea something that you or I would not agree to, or at least that we suppose we would not if we were in their shoes, which we are not.

                As a society, we can only do the best we can and must accept that we will never be perfect. Clearly, we can and should do better than we’re doing towards conforming the law to justice — assuming we can ever agree on what “justice” looks like in the first place. There’s been a lot of anger and outrage at the HSBC situation described above, for instance, and indeed I agree that it is an outrageous injustice. But it isn’t relevant to Swartz.Report

              • M.A. in reply to Burt Likko says:

                Today’s plea deals are no different from the Inquisitor offering to “make it quick” so long as the accused finally confessed to heresy.

                They are a moral affront to the entire process of justice and make a mockery of Blackstone’s Formulation, something which was very dear to the framers of the Constitution. Instead of some guilty persons going free in the service of sparing the innocent, the innocent are forced to plead guilty in the service of getting high conviction rates.Report

              • NewDealer in reply to Burt Likko says:

                I agree on number 4 but there are plenty of cases where defendants also had ineffective or inadequate assistance of counsel.

                That said, M.A. is also on to something.Report

              • Burt Likko in reply to Burt Likko says:

                Instead of some guilty persons going free in the service of sparing the innocent, the innocent are forced to plead guilty in the service of getting high conviction rates

                I agree with M.A. that this is very problematic. I’m not convinced that’s why they are pressured to plead, but it may not be relevant. Any time an innocent person feels pressured to plead guilty to a crime she did not commit, that’s a problem regardless of why the pressure is there.

                As I understood the question, it was “Will we ever be free of that sort of thing?”. And sadly, no I do not think we will.

                I also agree with NewDealer that there are cases in which defendants receive ineffective assistance of counsel. “Plenty” of such cases? That’s a subjective term, but to a degree “ineffective” is too and if you read the caselaw, that defines “ineffective assistance of counsel” with a shamefully low standard.

                I don’t share M.A.’s apparent distrust of nearly all plea deals. At least some, and I think a sizeable percentage, of plea deals are appropriate.Report

              • Chris in reply to Burt Likko says:

                Burt, the pressure to plea comes from the fact that plea sentences are significantly less harsh than those that come out of trials. If you can’t afford a good lawyer, there’s a lot of pressure to plea.Report

              • Burt Likko in reply to Burt Likko says:

                Even if you can afford a good lawyer, there’s still a lot of pressure to plea. I understand this.Report

              • Wardsmith in reply to Burt Likko says:

                Burt, I agree almost completely with your 1-5 responses to New Dealer. However as you’re both attorneys (IIRC) you’re skipping past some substance that needs addressing (as you did most eloquently with the “ownership” issue elsewhere.

                You talk about “innocent” parties when our judicial system isn’t wired for innocent::not innocent. It is wired for guilty::not guilty. One of my friends is an assistant DA and has been for almost 25 years. At least in his experience across thousands of cases, the concept of an “innocent” person rarely occurs. Here’s how it usually boils down. [Real case] A known rapist who has already done time for rape, will rape again and frankly won’t stop raping until someone puts him in a grave or he dies of natural causes is accused of rape. Amazingly in this one case the person who accused him was wrong (it was his brother). He pleads ‘guilty’. He is “innocent” of the crime for which he was convicted but he is by no means as pure as the driven snow. He joins thousands of other “innocents” in prison who all bemoan the fact that they didn’t have the representation that OJ Simpson had to get them off.

                Extremely unusual is the case where Joe Sixpack is wrongly accused and ultimately plea bargains even though he has no criminal history whatsoever. Yes it has happened occasionally and deservedly receives lots and lots of attention when it does, but it is by far the exception and not the rule.Report

              • Mike Schilling in reply to Burt Likko says:

                Swartz was threatened with > 30 years, with the option to plead down to < 1 year. Either he did something horrible and the 1 year would be a grave miscarriage of justice, or the 30 years is pure coercion.

                And if Burt doesn't agree that everything I've said is correct, I'm going to hunt him down and force him to spend a week listening to Nickelback's Greatest Hits.Report

              • Burt Likko in reply to Burt Likko says:

                Nickelback is prohibited by the Eighth Amendment. I know my rights!Report

        • Mike Schilling in reply to Burt Likko says:

          How much did Swartz steal? A lot.

          Cash value of? (Serious question.)Report

          • Glyph in reply to Mike Schilling says:

            I was thinking along these lines too. Burt alludes to the fact that it’s a non-zero amount, and I agree this is likely true. But if technology’s advance has brought us to the point where information is now so so cheap (pennies; fractions of pennies) then we may need to re-think things a bit, at least penalty-wise.

            Many gas stations now have the “Take A Penny” tray by the register. If I take a penny when I did not need it (just walk in off the street, buy nothing, and take it), that is theft, technically, right?

            What if I encourage other people to do the same, everywhere? I assume, for one, that they’ll stop putting the trays out, so that’s bad, and maybe that is enough reason to bring the hammer down on me.

            But does that justify a 35-year sentence?Report

          • Chris in reply to Mike Schilling says:

            If I understand correctly, he downloaded millions of articles, but how you value that is an open question. Do we value it as the price of MIT’s JSTOR subscription (which is in the many thousands of dollars a year)? Do we value it at the price of each individual article if we were to purchase them individually (would be in the millions of dollars)? At the cost of the subscriptions to the individual journals (not sure how much that would be, but I assume in the tens of thousands of dollars)?Report

          • I don’t know. I can’t know. No one can. Somewhere in there might be the equivalent of the formula for Post-It mucilage or the intellectual foundations of the next generation’s A Theory Of Justice or the data that allows creation of an alogrithm to break gerrymandering. Or not, maybe it’s a bunch of stuff not even the authors’ mothers will ever read. Who knows?

            But if I came up with it, then maybe I want to sell it for the entirely noble purpose of enriching myself. Maybe I want to just give it away, as others have suggested a lot of academics might want for any number of noble reasons. Point is, I should get to decide whether I give it away or sell it. “Information liberators” like Swartz ought not to get to decide that for me.Report

            • Nob Akimoto in reply to Burt Likko says:

              Should information hoarders like JSTOR, Lexus Nexus and Wiley be allowed to decide for you whether or not it’s available for free or hidden behind a paywall?Report

              • Burt Likko in reply to Nob Akimoto says:

                “Information hoarders” is a pretty loaded phrase. And let’s be careful to bear in mind the distinction between access to information and the information itself. Aggregators like these sell, in part, convenience and readiness of access.

                Now, as for their databases and what they decided should go in them? Their search engines? The analysis they add to the public information? Yes, that’s all their property and absolutely, they should be able to charge me for using them. They injected value into those databases. Also, some of what they aggregate and make available is in public domain, but some of it is copyrighted by third parties. They should be able to pass along to me their costs to those copyright holders.

                Irrelevant: whether the public domain information they have behind their paywalls is readily available elsewhere. If I want to search elsewhere, nothing’s stopping me. If I want to search Lexis, part of what Lexis is selling me is convenience.Report

              • Wardsmith in reply to Burt Likko says:

                Lexis and Westlaw are indeed information hoarders. Furthermore they have often and everywhere attempted to restrict access to PUBLIC cases! It is one thing to merely collect cases, it is quite another to inveigle courts to hide said cases behind nuisance paywalls, especially those in electronic form.

                Fact: Google’s algorithms are massively superior to Lexis or Westlaw’s.

                Back in the day, Westlaw and Lexis /rented/ proprietary data terminals for lawyers and law schools to use to look up cases. Perhaps you’re too young to remember? My friend, the dean of a prestigious law school wanted to use his (very early) PC instead. Both told him that it was completely impossible. He then called me and I figured out how to do it in 15 minutes with an RS-232 breakout box and some terminal emulation software that I modified. He then used it for about a year, while the dumb terminals sat in his office (still being rented BTW) collecting dust. Eventually they found out and half the company (can’t remember but believe it was Westlaw) raised holy hell while the other half was politely asking him to show them how he did it. Eventually they grew brains and decided they’d reach a vastly larger market (with vastly lower hardware expenses) by going to essentially the model they have now. But they still threatened death and dismemberment (although suing a law school is not something to be attempted by the faint of heart).

                Yes they are in business, but they are also dinosaurs with fossilized business models. Eventually they will go the way of the rest of the Paleozoic companies who could not or would not evolve.Report

              • Burt Likko in reply to Wardsmith says:

                What does “information hoarders” mean?

                I used proprietary WESTLAW terminals in law school. During my time as a student when the first software-driven WESTLAW and Lexis (it was just Lexis then, Nexis was a totally different thing) were made available. We Shepherdized cases at home at the lightning-fast rate of 2400 baud, and thought we were slicker than catfish in Vaseline.Report

              • Wardsmith in reply to Burt Likko says:

                My friend in now in his 80’s. I’ve done his “IT” work for free for decades and he’s done my legal work for free. We both think we’re getting the better end of the deal. 😉

                I recall when the Federal courts (where he spends most of his time) mandated digital records. I went over and helped him with it and talked to the clerk at the court. I asked specific questions about certain arcane points related to the submission and coding of the documents, he said, “Oh, that’s for Lexis and those guys”. A kind of regulatory capture if there ever was one. IANAL and have no idea of current submission issues, but even going directly to the court I am unable to find cases he is working on for instance, but they are all available at Lexis/Nexis. I know the lawyer who fought like hell for over 4 years just to put the RCW online (he was digitizing it himself started in 1993). He was blocked every step of the way by Lexis and Westlaw. Now at least the state government is doing its job and puts them up itself. That’s my definition of information hoarders.

                Would you like it if Google indexed search results but then conspired with others to hide the original sites?

                Funny you Shepherdized for Westlaw considering is now owned by Lexis. 🙂Report

              • Will H. in reply to Burt Likko says:

                PACER doesn’t work like that.
                Hard copies are 5¢ apiece, and $15 to certify any document.
                Electronic copies are 10¢ apiece, with a $3 maximum on any document. You’re not charged at all if you use less that $10 in any calendar quarter.
                And appellate court decisions are free.Report

            • Mike Schilling in reply to Burt Likko says:

              I don’t know. I can’t know. No one can.

              Huh? It’s on JSTOR. Anyone in the world can download it all if they pay the fees. What’s the fee that didn’t get paid?Report

              • Kazzy in reply to Mike Schilling says:

                But Swartz didn’t just download it for personal use, as I understand it. He made it available to others. So, if you think that the fee is the value, then we’d have to multiply the fee by either A) the number of people who actually saw it or B) the number of people who he made it available to.Report

              • Okay, then ask JSTOR. I still don’t know.Report

              • Mike Schilling in reply to Burt Likko says:

                So we can argue about the heinousness of the offense and the appropriateness of decades in prison without knowing if what he stole was really worth more than a few hundred buck? Whatever.Report

              • So you’re saying the material was just all crap worthless crap that no one would have wanted to read anyway? Of course not. But you don’t know what it was really worth any more than I do.

                We can know what JSTOR would have charged to access it. I’ve seen vague complaints here of how expensive JSTOR is. If the information weren’t more valuable than the access fee, we can safely assume no one owuld pay the fee.

                We can get an estimate of how many times it would have been accessed over any given period of time, and given the number of people who in this thread use JSTOR, we can safely presume we’re talking about lots of use. I’ve not got that estimate.

                This is clearly a non-trivial amount of money we’re talking about here. And we’re talking about large amounts of highly specialized information, the work of thousands, if not tens of thousands, of scholars and researchers.

                There’s also the issue of intent. What Swartz did meets the legal definition of “malice,” which is to act with purposeful intent to destroy. He wanted to make this information available for free to everyone so no one would have to pay JSTOR for it ever again. And he wanted others to emulate him.

                I wouldn’t say the value of the information is irrelevant. It is relevant. But we’re obviously talking about more than a few hundred bucks’ worth of information.Report

              • Mike Schilling in reply to Mike Schilling says:

                He’s being accused of downloading stuff without authorization. His theft is what he didn’t pay to become authorized. Period. It has nothing to do with the intrinsic value of the data. If you want to go further and say that he also provided it to N people who didn’t pay for it, I’m willing to multiply by N. But It’s irrelevant whether it was atomic bomb plans or scripts for the first season of Gilligan’s Island.

                The “He wanted other people to do it” still bothers me. If I sit in from of a troop train to protest a war, should I be punished extra because I’m implicitly encouraging millions of other people to do the same?Report

              • If I sit in from of a troop train to protest a war, should I be punished extra because I’m implicitly encouraging millions of other people to do the same?

                “Implicitly” is one thing, but if you explicitly encourage others to behave unlawfully in emulation of you, then yes, I think that is something to include in the mix when it comes to sentencing. As I have understood things, Swartz did explicitly hold himself out to the world as an example of someone who was doing something worthwhile.

                If he did not, then okay, he did not and that shouldn’t have been a factor at sentencing, assuming he would have been convicted. But yes, encouraging others to break the law ought to be considered a problem.Report

              • Glyph in reply to Mike Schilling says:

                Yeah Burt, I think I have the same problem as Mike. If I am pro-pot legalization, and I spark up, and I post here on 4/20 telling everybody at the League they should spark up, it/s 4/20, then get busted for possession – I should get charged for possession. The fact that I told others to spark up is irrelevant.

                AKA, the “If yr friends told you to jump off a bridge, would you do it?!” exasperated parents have made for since ever.Report

              • Glyph in reply to Mike Schilling says:

                Boy, I typo’d that comment all up.

                I did NOT spark up, FTR.Report

              • You would be charged for possession. I’m talking about sentencing, which occurs after you’ve been convicted of possession. As far as I know there is no crime of “incitement to smoke pot.” There might be “conspiracy to distribute pot,” but we’re talking about a scenario where you spark up not just to enjoy the pleasure of getting baked but also to get others to do the same thing as you — to analogize back to Swartz, you’d be doing it to demonstrate to the world that pot ought to be legalized.

                So. Do you think a defendant’s remorse for a crime, or lack thereof, ought to matter at sentencing? In the real world, if a defendant shows a lack of remorse, that’s an aggravating factor guiding a sentencing judge’s discretion towards greater punishment. If you agree with that, then I think you’re going to have a hard time arguing that a defendant’s incitement of others to commit similar crimes to his own is irrelevant.

                I guess you could argue that this all irrelevant, that the only thing that matters is the crime itself. That would be a consistent position. But it’s also not how sentencing actually works.Report

              • Glyph in reply to Mike Schilling says:

                Yeah, I’m not sure “lack of remorse” should factor, because it seems too intangible and subject to gaming. But I understand that it does.

                But how is that not a speech punishment/infringement, esp. when the defendant explicitly intended a political statement with their act?

                Since he was never sentenced we’ll never know; but had he said, “I’m not sorry, and others should follow my lead”, that should increase his sentence from 25, to 35 years? That seems right to you?Report

              • …but had he said, “I’m not sorry, and others should follow my lead”, that should increase his sentence from 25, to 35 years? That seems right to you?

                Maybe not ten years’ worth. But yes, I think it could be a factor in increasing punishment.

                And yes, I see the free speech issue, which I’d consider a potent argument if we weren’t talking about conduct by both the convicted defendant and his intended audicence which is already illegal in the first place. An illustrative example: “I’m stealing this watch, because watchmakers are bad, and that’s why you should steal one too,” is more morally culpable than “I’m stealing this watch.” A harsher sentence is appropriate. And you never had a First Amendment right to steal the watch to begin with. I’m sure we can derive grayer cases than this and at some point we’ll cross the point into civil disobedience.Report

              • Glyph in reply to Mike Schilling says:

                I feel like I should be able to say, “watchmakers are bad, and you should steal from them” freely under the First, regardless of the legality or political content of the act advocated; unless I am inciting violence, I should be able to say ‘most any fool thing in America. All the more so if I am making an explicit political statement (such as : “copyright law as it stands must be changed or eliminated”).Report

              • Roger in reply to Mike Schilling says:

                Sorry to be late to the discussion, but I agree that information should be free BUT that he was wrong to try to improve the situation illegally.

                I believe grant agencies and governmental subsidies should require the research and raw data to be publicly available for free within a certain time frame. Perhaps after 24 months or so.

                Furthermore, I believe researchers in all fields should establish an ethos of open and free disclosure or all research and safe data on the Internet. Furthermore, I think it would be good for the government to actually step in and offer to buy the release of all past data from JSTOR and others.Report

              • Roger in reply to Mike Schilling says:

                We could use one of the money we don’t send to Head Start.Report

              • Glyph in reply to Mike Schilling says:

                Actually, the more I think about it, this whole idea of “say you’re sorry and we’ll go easier on you” idea not only seems contrary to the spirit of the First, but also the Fifth, since it encourages you to just admit you are in the wrong.

                In fact, gosh help me, it does fit into the whole “Inquisition” analogy M.A. was making wrt plea bargains (“confess, sinner!”).

                So since I am both moving far afield, and find myself seeing M.A.’s POV, it’s time for me to drop this and pick it up some other time. 😉Report

              • Remember, Glyph, what you’re being charged with and sentenced for is stealing watches, not condemning watchmakers.Report

              • Glyph in reply to Mike Schilling says:

                Burt – right, and that (stealing watches) is the crime. Encouraging others to do pretty much anything, so long as it’s not “violence”, s/b “speech” (as is failing to show remorse; or, showing remorse).

                If speech (particularly political) or “my attitude” increases (or decreases) my penalties, I kind of have a conceptual problem with that.

                It’s “do the crime, do the time”, not “Do the crime, then say you are sorry, and do less time.” (or, “Do the crime, then fail to apologize or repent publically, and do even more time.”) I mean, any parent knows that a forced apology probably isn’t sincere, and why encourage people to lie anyway; they’ll resent being forced.

                Interestingly, this strikes me almost as the flipside of hate crimes, which Mike and I have discussed in the past – he is conceptually OK with the idea of charging them, so as to augment the penalty for another crime and indicate society’s disapproval of disrupting the social fabric (apologies to Mike if I am mischaracterizing, this is only a thumbnail to get the point across), I am not nearly so sure that is a great idea.

                This “no remorse” or “encouraging others” as an aggravating factor, potentially increasing my sentence strikes me as very analogous in effect – the fact that it potentially increases my penalty at sentencing, rather than in the number of things I am charged with, doesn’t really matter when I am sitting in jail for an extra 5 years, does it?Report

              • Mike Schilling in reply to Mike Schilling says:

                My feeling about hate crime enhancements is that they’re appropriate when they give a more accurate picture of the crime. Burning some garbage my lawn is trespassing and arson. Burning a cross on a black person’s lawn is a threat of serious violence to come. That’s more concrete than lack of remorse.Report

              • Glyph in reply to Mike Schilling says:

                Thanks, I remember that now (surprising how hard it is to recall and thumbnail someone’s argument when you have two rugrats yelling, and yr trying to type on a stupid virtual keyboard.). Sorry for misstating.

                Man, for the kind of years Swartz was facing, you’d think he was an Amish guy who forcibly shaved another Amish guy. IOW, total menace to society at large.Report

              • Kazzy in reply to Mike Schilling says:


                I hope I don’t have to remind you that referring to the commenters here as “rugrats yelling” is in violation of our commenting policy.



                I like that theory on hate crime legislation. Personally, I think it’d be ideal if it could be folded into existing crimes (intimidating, conspiracy), because I think hate crime statutes leave a lot of room for abuse. I also struggle with the nomenclature… “hate crime” seems a little silly, perhaps redundant, while at the same time making it clear that there was something uniquely sinister about the act. It’s tricky, but I think you pretty clearly and concisely sum up the logic behind such legislation.Report

              • Glyph in reply to Mike Schilling says:

                Trust me Kazzy, when the baby (ies?) come, you’ll need to implement a commenting policy in your house.Report

    • Chris in reply to Burt Likko says:

      Except he didn’t steal it. He logged into a notoriously open system (MIT’s), and he downloaded articles that JSTOR allows anyone logged into MIT’s system to download.

      So what did he steal?Report

      • Tod Kelly in reply to Chris says:

        I’m not so sure I agree with this view; mostly because of the “allows anyone logged into MIT’s system” part – I’m assuming that just anyone isn’t allowed to log into the MIT system.

        If I were to write a detailed multi-location Emergency Action Plan for my clients and give them access to it (or for that matter, present them a physical copy), I would in fact consider it stealing (and so would the language of my contracts) if they were decimating my work to other potential clients so that other firms could have the benefit of my expertise without paying for it.Report

        • Chris in reply to Tod Kelly says:

          Tod, MIT is, as I said, notoriously open. The expert witness who was going to testify on Swartz’ behalf wrote an interesting blog post the other day detailing why he thought there was no crime committed (except, perhaps, trespassing). I can’t find it, but if I do, I’ll link it here. Further evidence: JSTOR, from whom the stealing is supposed to have taken place, was over it and apparently tried to get the prosecutors to back off.Report

          • Kazzy in reply to Chris says:

            So if I don’t look my doors or, hell, if I leave home with the front door wide open, it isn’t theft if someone comes in and takes my flat screen?Report

            • Chris in reply to Kazzy says:

              Kazzy, I get your point, but it’s not really analogous. It’s more like having a party, serving a bunch of catered hors d’oeuvres, leaving the door open with a tacit invitation for anyone in the neighborhood, and then getting pissed when someone who wasn’t on the official list of invitees eats some of the food you left out for everyone. He ate too much food, to be sure, but except possibly trespassing in the physical location (the basement closet), he wasn’t at a party he was excluded from.Report

              • Kazzy in reply to Chris says:

                I don’t know how MIT’s system works. But if it required entering a user name and a password that he did not acquire legally, than I think that is different than an open door party. That’d be more akin to having a guest list and someone coming in off the street fraudulently representing themselves as someone on the guest list and then eating all my bacon-wrapped-scallops.

                Going off on a tangent, I do sometimes wonder about all the sort of “implied agreements” that we undertake. For instance, if I go into a bar that offers me a drink menu but none of the drinks have a price, what stops me from having one and walking out, insisting that the lack of price indicated to me it was free? Or challenging my bill and insisting that I never agreed to the final price? I mean, I’ve never walked into an establishment and saw a sign indicating that my presence meant I was agreeing to certain rules. So why can’t I drink at these price-less bars for free? I assume the “reasonable man” standard would come in but it does seem a bit screwy, no?Report

          • Tod Kelly in reply to Chris says:

            I am assuming that part of registering for MIT’s system is agreeing, in writing or electronically, that you agree to certain conditions including the proprietary nature of its content. If so, then the number of people they give access to isn’t particularly relevant.

            If not (and I would truly be shocked in this day that MIT wouldn’t do such s thing) then you might be correct.Report

      • Burt Likko in reply to Chris says:

        If I fail to lock the door to my house at night, that is not the same thing as an invitation to you to come on in and take my TV home with you when you leave.Report

        • Kim in reply to Burt Likko says:

          Now, if you, like MIT, distribute a guide to lockpicking at freshman orientation…Report

        • Nob Akimoto in reply to Burt Likko says:

          Be more akin to pay for a billboard advertisement, and then the billboard owner suing someone for taking a picture of your advertisement and posting it online.Report

          • Burt Likko in reply to Nob Akimoto says:

            I don’t think that’s as close an analogy, but let’s run with that for a moment.

            Such a use of a copyrighted image might be permissible under the fair use doctrine. It depends largely on what the photographer does with the image.

            Was Swartz’s JSTOR dump fair use?Report

            • Nob Akimoto in reply to Burt Likko says:

              It’s not like he was expecting to profit off of it.

              At worst it should be a fine you settle with the distributor, not a criminal sentence of 35 years and million dollar fine.Report

              • Burt Likko in reply to Nob Akimoto says:

                Fair enough — the threatened punishment may well have been disproportionate with the crime. I’m not so sure but as I wrote in reply to Mike Schilling elsewhere, I can see that argument. That’s different than morally justifying what he did. Also as I wrote to Mike, a prosecutor’s threat is a worst-case scenario. Doesn’t mean it was going to actually happen.Report

              • Will H. in reply to Burt Likko says:

                And I’m fairly certain that the figures given are the maximum for all offenses charged.
                Federal sentencing guidelines don’t work like that.Report

      • zic in reply to Chris says:

        The author’s right to distribute the information.

        The funny thing I learned, along the way, was that in searches, it’s the JSTOR pieces that come up, and cost a lot to access. If the abstract indicated it was the information I needed, I’d then search on the authors, and very often find the same expensive JSTOR article on their websites for free.

        But here’s the weird thing: I still didn’t have the right to photocopy that article for others; that would be a copyright violation. But they could each go and download the same article themselves.Report

        • Kim in reply to zic says:

          you could probably get the author’s permission for “educational or non-profit” use.
          Public domain is a different thing than “choosing to distro for free”.Report

        • Kazzy in reply to zic says:


          What if the author sells his right to distribution? If he says, “Hey, Publishing Company Inc, give me $100K and you can do whatever you like with this paper and I’ll never be allowed to do anything with it.”Report

          • James Hanley in reply to Kazzy says:

            Heh, 100k? For book chapters and journal articles we often sign over most of the rights without compensation. We can use our own articles for educational purposes, but I couldn’t take one of my journal articles and reproduce it in a book that I intend to sell to make a profit without having to pay the original publisher a copyright fee.Report

          • Chris in reply to Kazzy says:

            Kazz, most journals don’t pay authors (I don’t know any that do, actually), and when you publish with them, you always agree to give them distribution rights. Some of them allow you to publish final drafts or penultimate drafts immediately or after a period of time (often 6 or 12 months) on your website. Some of them are stricter.Report

            • Kazzy in reply to Chris says:

              But that still gets at my broader point, which is that the author handed over his rights to the publisher voluntarily. Just like if I gave you my car voluntarily, I couldn’t later claim a right to drive it if we hadn’t agreed to that. And I don’t think that is what authors do; I assume they all know the deal. But that is what a lot of piraters (pirates?) argue: the author wants to distribute the work and the publisher won’t let them; the publisher stole the rights; etc.Report

              • Chris in reply to Kazzy says:

                “Voluntarily” is a tricky word, here. I mean, an academic has to publish or choose a new career, and journals are, for the most part, the only game in town. And in order to publish in journals, you have to agree to their distribution agreement. So in order to be an academic, you have to agree to their distribution agreement.Report

              • Kim in reply to Chris says:

                … like, um… teaching? 😉Report

              • Kazzy in reply to Chris says:

                Eh? I mean, isn’t that just the name-of-the-game for academics? No one is forcing them to be an academic. No one is forcing the universities to require publication. No one is forcing the publishers to require certain distribution agreements. If there was a government role in this (and I’m not really counting public universities as the government primarily because it seems this practice is universal and thus their actions are more par-for-the-course than they are government-overreach), I could see objecting.

                But if you don’t want to publish articles that you won’t have rights to, don’t be an academic.Report

              • James Hanley in reply to Kazzy says:

                There’s a lot more to being an academic than just publishing articles. That is, a lot more reason for wanting to be an academic than just that. The current system is a price we’re willing to pay, but that doesn’t mean we wouldn’t be happier if we could force a restructuring of the system so that we wouldn’t have to pay it. Especially since it’s not a naturally necessary price, like the long hours of research and reading (some of which is quite enjoyable, but of course not all), but a systemically non-necessary price (i.e., eliminating that price would not degrade the structure of the overall system that enables us to be academics).Report

              • Kazzy in reply to James Hanley says:

                How did this system come to pass?

                Why couldn’t an institution gain a leg up by attracting the best academics by not putting publishing expectations on them?

                I recognize that the current system is problematic and I would certainly support efforts to change it. But my libertarian side leads me to conclude that all agents were informed and acted voluntarily and because Swartz was not okay with the outcome of these agreements, he took illegal action to subvert.Report

              • James Hanley in reply to James Hanley says:

                Why couldn’t an institution gain a leg up by attracting the best academics by not putting publishing expectations on them?

                Publishing is how you prove you’re the best academic. The best would not go somewhere without such expectations because they’d be afraid their colleagues wouldn’t actually be the best, but lazy-ass folks who didn’t want to do the hard work it takes to get published. So through a process of self-selection, they would end up being exactly right.

                (As to Swartz, I have no decided opinion other than 35 years is wildly disproportionate to any measurable harm he could have caused.)Report

              • Kazzy in reply to James Hanley says:

                That’s interesting. Thanks for clarifying. So it seems almost a necessary evil, though there certainly could be reform done to the methods of distribution and compensation.Report

              • James Hanley in reply to James Hanley says:

                Yes. And I think distribution will be reformed, over time, along the lines I suggested further down the page.Report

              • Chris in reply to James Hanley says:


                The system came about long before the internet, when print journals were the only way to disseminate much of the work efficiently. The cost of the journals was meant largely to cover the print and distribution costs. Now journals are moving away from print versions, sometimes altogether, and they host their content on other sites, like JSTOR or ScienceDirect (I spend a lot more time on ScienceDirect than JSTOR). There are really only two reasons to still have journals at all: the review process and archiving.

                However, there are fields where even these functions are being moved outside of the journal system. Physics and mathematics, and to some extent several other quant-heavy disciplines, use arXiv to publish preprints of their papers, which are then reviewed by the community. If I’m not mistaken, almost every physics paper submitted for publication these days goes up on arXiv. Hopefully this is the direction other fields will go as well.

                In my field, I’d say about 70% of the people who publish regularly put a link to a free copy of some version of their papers (often as soon as they submit them, or even before) on their websites. The only time this isn’t the case is when journals are strict about publishing even drafts of papers that they ultimately publish.Report

              • Kim in reply to Kazzy says:

                Abandonware does exist.
                Also, software in such a state of legal limbo that it will NEVER EVER be published again.

                After a certain point in time, one could legitimately say that the cost-per-pirate has decreased to nearly zero. Thief used to sell for $50 a copy. Now you can get three $50 games for $5 off Steam. What’s the harm in pirating that??

                You are also ignoring the point where an author can make substantial changes after publishing (so as to improve playability), and then want to disseminate those…. “free patches.”Report

          • zic in reply to Kazzy says:

            What if the author sells his right to distribution?

            What if? That’s actually requested of authors each and every single day. I constantly modified contracts to make it clear the rights I was selling; and more importantly, the rights I maintained.

            I actually preferred publishing without a contract, because then the legal precedent for a no-contract situation is that I was selling first publication rights and retained all others; and this happened without anyone getting riled up about things. Gentleman’s handshake on the topic, length, price, and deadline, and we were good to go. Sadly, that’s not how things work. It left me free to reuse/republish the piece as written, free to reuse quotes and photographs, etc. Many contracts were very sneaky, and I could not, for instance, have re-used a quote in another piece. I either modified such clauses or refused to sign if the publisher wouldn’t agree to my modifications.

            But publication rights are really really complicated; there are many of them, and the more you define them, the more they seem to fracture and spawn more rights. In the case of JSTOR, the rights would be for electronic distribution. Yet a vast majority of the research on JSTOR is (as I said elsewhere on this thread) also available on the author’s websites.

            This means that JSTOR doesn’t own exclusive rights or the author’s themselves are violating copyright on their own pieces; which is sort of incredible since they were also not paid for those rights, but garnered their infringement while pursuing their duties to their employers. That suggests the whole shebang of rights JSTOR actually has are not as clear cut as it seems, to me, at any rate. The only thing being violated is an electronic distribution system, which overcharges for it’s information, that’s often available from the content-producer for free.

            These copyrighted works were often produced via federal grants, and the producers did so as part of their job requirements. Theoretically, their employers could claim rights, depending on the language in the employment contracts and the state’s version of freedom of information.

            As I said elsewhere, there’s also a possibility that under the Freedom of Information Act (FOIA) the works paid for with federal funding might be coerced with a freedom of information request; I suspect it would vary by the terms of research grant and how university is funded and the researchers’/authors’ employment contracts, and the state’s version of the law.

            But at the end of the day, unless the author signs a contract giving away all rights, he or she retains some. And those rights are the right to distribute; and in some cases (mostly art) the right to control derivative works.Report

    • clawback in reply to Burt Likko says:

      Are you advancing a theory that copyright laws caused the Enlightenment and scientific revolution? That would be quite remarkable.Report

      • Burt Likko in reply to clawback says:

        I posit that the concept of intellectual property contributed to those larger intellctual, historical and cultural phenomena, and to the efflourescence of culture and art and science and knowledge that followed. Quite obviously, there were other causes as well.

        I further posit that intellectual property has become inextricably intertwined with nearly every facet of the contemporary economy. Shifting to a different paradigm in which information is not subject to ownership is thus a truly radical proposal.Report

        • Kim in reply to Burt Likko says:

          Indeed it is radical. But I do remember a day when all sourcecode was open source, and often distributed in magazines, which one could then presumably check out of libraries.

          HOW do you make a profit if your sourcecode is open source? Simple, you sell the Machines That Run It.Report

        • zic in reply to Burt Likko says:

          A reminder that the development of IP law was to balance the needs of creators with the need to have information in the public domain.

          Information is often subject to to ownership. Your health records, for instance, are the property of your health insurer. In the health care debate, it constantly surprised me that we failed to hold the discussion about the amassed research on existing outcomes, information that exists, but is owned by insurance companies.

          But here’s the real difference: They do not publish that information. Once you publish, what you own is the presentation of words and images, not the content, not the ideas; something you essentially said elsewhere in this thread.

          This is why research firms with a business model of making money on their research don’t publish, or publish selectively. There are a lot of places I can go to buy information. And that often includes the information available that’s been published, incorporated and analyzed with privately collected data. Publishing the research would eliminate it’s value; so Forrester, for instance, sells advice based on it’s research, sells the research with strict contractual rules about it’s uses. But it doesn’t publish the research; it just makes some of it available as a marketing tool.Report

          • Kim in reply to zic says:

            “Your health records, for instance, are the property of your health insurer. In the health care debate, it constantly surprised me that we failed to hold the discussion about the amassed research on existing outcomes, information that exists, but is owned by insurance companies.”

            I do not think this is the case. I believe the hospital owns the doctor’s notes, and all the medical treatment data, except for the actual bills.

            Where I work, we do in fact publish about existing outcomes.

            The problem with most patient care data is that it isn’t electronic, and is in eensie bitsie little silos. Where I work, we have enough hospitals to make statistically significant conclusions.Report

            • zic in reply to Kim says:

              I do stand corrected, at least when it comes to doctor’s notes.

              The point was that the record of payment always reflects the record of illness and treatment; that treatments are either approved or denied based on algorithms on prior successes that have less to do with health-care outcomes and more to do with profit/loss analysis of that aggregated data. And it is owned by the insurance companies. My guess would be that it was a powerful tool for those companies in negotiating their desired outcomes in ACA.Report

              • Kim in reply to zic says:

                I work for a nonprofit. I’ve seen little evidence in my day-to-day analysis that they are really that nefarious.

                I have only one personal example of “extreme stupidity” caused by the Evul Insurance Companie.
                I do not fool myself into thinking that Evul Insurance Companies do not exist, but! The ones that I have heard of, simply deny coverage to ANYTHING over a certain dollar amount (that miscarriage in the ER was actually an abortion, so Not Covered — that’s enough to google one of the evil ones). Death by Spreadsheet.

                Perhaps they will get to the point you envision. I consider it highly likely. But not right now, I don’t think.Report

              • zic in reply to Kim says:

                I once did a three-year battle to get our insurer to pay for my son’s care after he broke his arm. I lost; they refused to pay because the primary-care physician did not write a referral to the osteopath who reset the arm.

                Sadly, these kinds of things — payment denials for silly mistakes and random rules that take a decision about care out of the doctor/patient relationship — are nefarious. And all too common.

                I remember spending several hours in an ER a few years ago, one my son had been in a car accident. The waiting area was next to the desk. Most of that time, I got to eavesdrop on doctors and nurses discussing what each new ER patient’s insurance would pay for a the basis for treatment. I realize, this is anecdotal. But if it’s any reflection of the real world at large, that’s also nefarious.Report

              • Kim in reply to zic says:

                How -badly- did you lose? Did you cost them enough money that paying for his arm would have been cheaper?
                Shit, you’re a journalist. Surprised they didn’t run like bats out of hell /away/ from you.

                Pay is taken into account, that’s only natural. Is it nefarious? Sometimes, sometimes not. If the medicare stops paying for heart attack readmissions, you suddenly have a LOT of incentive to find cheaper ways to treat the problem of “grandpa forgot to take his meds” (like calling grandpa).Report

              • zic in reply to Kim says:

                It wouldn’t have worked like that. The cost would have fallen to the our local Health Center for failing to write the appropriate referral. I dug in enough to get to that bit of information; and then knew the cost would shift to a burden to a place I didn’t want it shifted to, so I paid.

                The insurer would not have paid no matter what; either I paid, the health center paid, or the doctor who set the arm (a very good friend, btw) went without getting paid.Report

              • Kim in reply to Kim says:

                @ court, the person you take to court is always the person paying. Your time is a hell of a lot cheaper than a high-falutin’ lawyer.Report

              • zic in reply to Kim says:

                No, it would not have gone to court. The health center flubbed it; the nurse there scheduled the appointment to have the arm set, the doctor was expecting us when we arrived. But she didn’t also enter a referral into the system. That action meant they violated the agreement they had with the insurer (who also has a monopoly on the insurance market here, there are only two providers, and one only handles a few larger companies).

                It would never have gone to court, our local health center would have had to absorb the cost. Now I was a reporter at the time, and I knew there financials. So I did what, to me, seemed like the best thing to do considering my finances and theirs; my credit ratings, and the good they do in my community.Report

              • Wardsmith in reply to zic says:

                Zic, Kim as usual is completely wrong. You DO own your own medical records held at the hospital. If you go in for a procedure and then ask for ALL the information they are legally obligated to give it to you. They might give you some grief and if you ask for hardcopies of your xrays they have a right to charge for it, but the data is YOURS and that is part of the patient’s rights in this country.

                When I had shoulder surgery I even got a copy of the video they made (they were unaware that the equipment they used automatically made video of the procedure). The doctor was terrified I was going to use it in a lawsuit (the recovery was botched due to one of his staff members giving me completely incorrect instructions) but I was just personally interested in watching someone operate on my body while I was unconscious.Report

              • zic in reply to Wardsmith says:


                Your insurance company owns record of every procedure and test you have; they own that information, they are free to sell to to others within the industry, an exclusion written into HIPAA. Yes, you own the record produced at a doctor’s office, you have right to a copy of it.

                But the data of each and every thing (the billing codes, actually) that goes through your medical file is the property of your insurer, too.Report

              • RTod in reply to Wardsmith says:

                This is a minor quibble which doesn’t affect your point, ward, but just as a point of order:

                You do not own your hospital records. You have the right to know their contents, and you have the right to allow (or not) anyone other than the hospital to access those records; but you do not own them. The hospital does.Report

              • RTod in reply to RTod says:

                Effect, not affect. aaarrrgghhhh…..Report

              • Wardsmith in reply to RTod says:

                “Ownership” is the quibble here. I guess what I meant was that each and every patient (without whom the hospital has no raison d’etre) OWNS the rights to their “own” medical records (admittedly a copy), a right which is virtually unkn’own’ to Americans. Things get a lot dicier when we talk about tissue samples. For instance there is a famous issue with a woman whose tissues became the basis for multiple drugs and treatments. She received nothing.Report

              • Burt Likko in reply to Wardsmith says:

                You can “own” a lot of things.

                You might own the paper upon which the records are printed, or the memory chips upon which the images of those records are stored.

                You might own the right to reproduce the particular pattern of dots and dashes on the paper, or the particular pattern of electronic information that images those dots and dashes.

                You might own the right to decide who gets to see the dots and dashes on the paper, or the particular pattern of electronic information that images those dots and dashes — and by extension, the right to deny others access to it.

                You might own the right to destroy that pattern.

                You might own the right to control access to, control the creation and distribution of copies of, or to destroy information developed in part as a derivative of this information.

                You might own any of these rights but be presumed by law to have given licneses to similar sorts of rights to all sorts of third parties. Hopsitals, doctors, nurses, insurance companies, benefits administrators, Medicare auditors.

                One can slice these hairs very finely indeed.Report

        • clawback in reply to Burt Likko says:

          Attempting to tease out the effect of copyright laws on scientific, economic, and cultural advancement would be difficult indeed. However, given the weakness and poor enforcement of such laws until the twentieth century (e.g., Mark Twain’s mostly fruitless struggles against unauthorized copying of his works) it seems unlikely they played a major role.

          In any case, many of us consider the more recent IP laws, such as the DMCA and the CTEA, to be the real radical experimental departures from tradition.Report

          • Burt Likko in reply to clawback says:

            Oh, I’m not entirely sure about that. Twain had problems, to be sure, and he was far from unique in that respect. But if it weren’t for the notion that you can own and sell your own artistic works, far fewer people would have chosen to pursue the arts in any serious way than actualy did. The arts would continue to be the province of a more specialize sort of group of people who cultivated wealthy patrons. The fact that Twain could even imagine making a living as an author selling his works to the general public was in no small part the result of copyright law existing at all, even in a form much weaker than we’re used to today.

            But one consequence of Twain’s problems in protecting his ability to exploit his own writings was that he was eventually reduced to penury and bankruptcy, despite being an amazingly popular author, the very living muse of America. He revived his career with the help of a business-savvy patron later on, so the story has a nice ending. But that was far from inevitable. Twain’s problems suggest that the laws of his day were too weak.

            I tend to agree with the generalized proposition that things have gone past the sweet spot into the other direction today. DMCA and other recent strong-enforcement laws have real problems, you’ll get no argument from me on that. Super-long terms for copyrights, hair-trigger takedown notices, and the lack of explicated safe harbors for fair use are among them.

            What I’m not prepared to do is give up on the idea that information is, or at least can be, proprietary. Too much good has come of it, and too much disruption would come from anything other than a very incremental and slowly-implemented diversion from that paradigm.Report

            • greginak in reply to Burt Likko says:

              I agree on copyright laws and such, but Twain was also a bad business man who made all sorts of crappy investments.Report

            • Mike Schilling in reply to Burt Likko says:

              Twain made a ton of money, enough to live in great luxury. He threw every cent of it away on bad investments, in particular the Paige typesetter. In fact, you could argue that if he’d made less money, he would have been better off, because he wouldn’t have felt rich enough to set it all on fire. He earned back enough to pay off his debts by going on a lecture tour and writing more books. There’s no way to blame any of this on weak copyright laws.Report

            • clawback in reply to Burt Likko says:

              So … first, you believe that “too much disruption would come from anything other than a very incremental and slowly-implemented diversion from” the well-established copyright paradigm; and second, you agree that the DMCA and other recent laws diverge from that paradigm. This puts you pretty close to the mainstream among current copyright law activists, including SwartzReport

              • Burt Likko in reply to clawback says:

                Swartz’s views about how copyright law ought to change were quite a bit more radical than mine. You don’t need to advocate making all information available at zero cost to everyone everywhere at all times and under all circumstances to nevertheless think that “lifetime of author plus 75 years” is too long a period of time for a copyright and that the fair use doctrine needs to be made more certain.Report

              • clawback in reply to Burt Likko says:

                As far as I can tell, Swartz was primarily active in opposing increasingly draconian proposed copyright laws such as SOPA, and believed that publicly funded research should be publicly available. This doesn’t sound like advocating “making all information available at zero cost to everyone everywhere at all times and under all circumstances,” though admittedly he may have made more radical statements that have escaped my notice. At any rate, the activity for which he was prosecuted (attempting to make publicly funded research publicly available) is certainly not as radical and civilization threatening as you imply.Report

              • Burt Likko in reply to clawback says:

                Okay, please educate me on the nuance I’ve missed. “[P]ublicly funded research should be publicly available.” Cool.

                Should I have to pay for the right to access it? If the answer to that question is “yes, but only under some circumstances,” then what are those circumstances and why do they justify the payment? For instance, if the circumstance is “you should have to pay the public back,” so my money gets paid to whatever governmental agency originally underwrote the research, then doesn’t that turn the government into an information vendor?

                If the answer to that question is “no, because the public underwrote the research,” then why is it different than the timber subsidy I mentioned in my original comment?Report

              • clawback in reply to Burt Likko says:

                Well, the answer to the question of whether you should have to pay to access publicly funded research is no; and I don’t know how to answer the question of how this compares to the timber subsidy you mentioned since I’m opposed to such subsidies, so the question of whether stealing from a timber company that has essentially stolen the timber in question by some corrupt sweetheart deal doesn’t come up. I’m afraid I see almost nothing in common between publicly funded research and your timber example.

                But anyway, I wasn’t interested so much in exploring whether Swartz was right or wrong as in questioning your hyperventilating about the imminence of communism and/or a return to the Dark Ages. He may have been right or wrong, but if his position wins out civilization will survive.Report

              • Burt Likko in reply to Burt Likko says:

                It would survive. But it would be quite different than it is now.Report

    • M.A. in reply to Burt Likko says:


      Whatever you say, Javert.Report

      • Burt Likko in reply to M.A. says:

        There’s a moral argument too, M.A., not just a legalistic one. I’m sorry you missed it. The others did not, even if they disagree.Report

        • M.A. in reply to Burt Likko says:

          There’s a moral argument to disproportionate harassment and sentencing by prosecutors.

          Those shouting “thief thief”, wanting to burn a man at stake, give him a sentence half his lifespan or force him to suicide?

          They’re a bunch of Javerts. And they’re far worse than anyone who “stole” a few journal articles or a loaf of bread while hungry.Report

          • Burt Likko in reply to M.A. says:

            Oh, I see. Swartz’s livelihood and indeed the very lives of his family were imperiled by JSTOR’s draconian fees. Really, he had no choice but to do what he did.Report

            • M.A. in reply to Burt Likko says:

              Swartz’s family, friends, and community are all irreparably harmed by the actions of the Javerts you sympathize with who hounded and haunted him into suicide.

              Grow a conscience.Report

              • M.A. in reply to M.A. says:

                Lest someone think I’m not serious about this: you just made a flippant comment about the amount of attack and hounding necessary to drive someone to suicide, even after the actual “aggrieved parties” were saying enough is enough and telling the prosecutors to back off.

                There is something very, very wrong in the moral compass going on here. What the prosecutors did is tantamount to murder and what’s worse is they will not just get away with it, there will be people who defend them while painting their victim as some sort of scourge upon society.Report

              • Kazzy in reply to M.A. says:


                I don’t know if you are officially in violation of the commenting guidelines here, but I’m pretty disgusted with this comment and think you are toeing the line here. I ask you to conduct yourself a little bit better.Report

              • M.A. in reply to Kazzy says:


                I would not have worded my response so strongly were I not so strongly offended by the flippant commenting of “Really, he had no choice but to do what he did” in relation to someone’s committing suicide.

                I’ve known friends who made the attempt. Even the attempt of suicide is incredibly painful and emotionally damaging to the friends and family of the attempter, as well as showing an incredible amount of pain on the part of the person who attempts. It is not something to EVER be joked about and betrays a woeful lack of conscience in those who would.Report

              • Kazzy in reply to M.A. says:

                My reading is that the “what he did” referred to the content acquisition and distribution, NOT to the suicide. I will leave it to Burt to clarify but that is how I read it the first and second times I looked over his comment.Report

              • Glyph in reply to Kazzy says:

                Agree with Kazzy’s reading, though if I read it as M.A. did, I can see why that would be upsetting.

                Burt used some forceful language in his original comment in a coherent-but-limited argument: that those who break the law should expect prosecution (while providing some background on the law’s historical context and intent).

                Though I think he’s open to debate on A.) the seriousness of the crime and IMO-draconian nature of the penalties, and B.) whether or not the law could or should be any other way in a more ideal world, I think some people, due to the force of Burt’s language and the emotional pall of a bright young man’s suicide (which was almost certainly at least in part in response to facing a possible 35-year sentence, and which lengthy sentence ITSELF would upset me, even had he lived) are taking Burt’s more-limited (IMO) argument as an argument on A.) and B.) also (which are separate questions).Report

              • Chris in reply to Kazzy says:

                I think the more charitable reason is somewhat obvious, not only given the preceding sentence, but also because the entire discussion has been about the document download, not his suicide.

                The problem, it seems to me, is pretty clear. If you are offended by any disagreement, then when someone disagrees, and there are two interpretations of what they’ve said, one of which is significantly more charitable than the other, you’re always going to read it the less charitable way. We saw this a lot with the “you didn’t build that” remarks: the preceding and subsequent sentences made it pretty clear what he meant, but what he was saying was going to be offensive to a lot of people no matter what, so they were primed to take the less charitable reading.Report

              • Tod Kelly in reply to Kazzy says:

                Oh, for God’s sake.

                With all due respect to everyone involved in this thread, all of you have been here for many months – if not years. Are you all really going to go with the squishy “I *think* what Burt *might* have meant” when faced with an accusation that Burt is pro-young men killing themselves? Burt Likko? No one that’s followed Burt’s writing and arguments is willing to go way out on that limb and say that it’s obviously and very clearly in no way what he meant, and that you have to go way out of your way to read it like that?

                Good frickin’ Lord.Report

              • Burt Likko in reply to Kazzy says:

                Kazzy’s reading is correct. I’m talking about the information dump, not the suicide. As I wrote in my original comment, “I feel bad for his friends and family that he took his own life under the pressure of prosecution, but I don’t feel in the least bad that he was prosecuted in the first place.”

                I’m not inclined to agree with M.A.’s claim that this young man’s blood is on the prosecutors’ hands, much less my own, because I condemn the information dump in both moral and legal terms. If M.A. wants to think that I’m a murderer for calling a crime a crime, I can’t control that any further than disagreeing with it.

                But my comments here are aimed at Swartz’s actions which attracted the eye of the prosecutor in the first place, not his suicide.Report

      • RTod in reply to M.A. says:

        M.A.: It’s possible that my more polite comments to you have been misconstrued as a personal preference rather than a warning from an editor, so let me be perfectly clear:

        Knock it off, or we’ll change your commenting status.Report

    • Will H. in reply to Burt Likko says:

      I’ve got this thing going on, a sideshow to my own ongoing case*, and it’s a matter that I have been researching over the past week or so.
      Basically stated, I have been locked out of my Yahoo e-mail account after having deleted my browser cookies. I have another Yahoo account that works fine. Now I’m trying to obtain a court order to get Yahoo to release the account. I don’t want to have to use a subpoena (that’s Plan B) because I don’t want to share the information.

      I’m going after the account itself, which is “property.” I believe it’s actually “effects” for Fourth Amendment purposes (it’s protected by passwords, etc.).
      The e-mails themselves aren’t “property, ” but “information.” E-mails that have been opened or that are older than 180 days have no expectation of privacy. This goes back to the law concerning mail; that the expectation of privacy on the part of the sender ends at the time the item of mail is received.

      The laws concerning electronic documents are rather convoluted. Many of them make no sense to any person with a passing familiarity. Most of the activism I’ve seen is more geared toward expanding protections for electronic documents (and metadata) to the same level as paper documents.
      That said, Schwartz’ idea that “information should be free” isn’t the wrong-turn so much as the notion that this particular source is where it should come from.
      In that view, the issue of copyright is irrelevant. It’s the defeating of security features that’s the big red flag. That he did not do so for personal gain is a mitigating circumstance, but it doesn’t alter the fact.

      For a private party to act in mistake of fact or in mistake of law does not diminish liability.
      For a state actor, however, it does.
      If a state (or federal) employee had done the exact same thing as Schwartz did, and did so as a part of their job, it would be perfectly legal, for all practical purposes.
      That’s the real injustice.

      * I’m the plaintiff here, so don’t worry about it. Related, don’t be concerned about ‘advising’ me, as I understand the law well enough; it’s the caselaw cites (and ones from my district) that I need.Report

  8. NewDealer says:

    Almost all law especially litigation contains an emotional aspect of some kind. In civil law, the emotional vexing is usually or can be limited to the parties and their immediate friends/family.

    In Criminal law, there is more vexing and often the emotional aspects cannot be limited to the immediately involved parties. Obviously crime and violence are bigger societal issues than a car accident or a breach of contract or easement dispute.

    The truth is that I think most people are bit schizophrenic when it comes to criminal law except hardcore law and order types or true believer criminal defense attorneys because they have a broader mission. The rest of us cannot decide when we want prosecutors to be zealous and when we want them to show restraint and judgment and not prosecute or punish lightly.

    There does seem to be a psychological desire to punish people we perceive of as cheaters and/or societal transgressors whether they be Scwartz or young minority men smoking marijuana in public:

    The problem is that we all have significant disagreements on who deserves prosecutorial zealousness and who does not. My favorite MLK quote is “Injustice anywhere threatens justice everywhere”. This is a wicked problem and seems to be true. Stephen Glass was a journalist who fabricated 40 stories. He then went to law school and passed the California Bar. He was denied a license to practice because of lacking moral character because of his fraud. He appealed his case and won. The moral character committee appealed to the California Supreme Court.

    Various legal bloggers do not want him to practice for acceptable reasons. However, one blog was interesting. It noted with rage that the defenses used by Mr. Glass would be scoffed at if said by a young and poor minority instead of by an upper-middle class suburban kid. This is true and wrong but does it justify being possibly unjust to Mr. Glass? Probably not but people did seem willing to law a possible injustice to happen to one person because it happens to others.

    The sad truth is that America might divided on so many lines: religion, race, ethnicity, socio-economic status, etc that the only solution is to have a legal system that is harsh to everyone and merciful to no person. This makes me rather depressed. I would like to believe that we can have a justice system that is just and fair to everyone including the criminal and the victim.Report

  9. Nob Akimoto says:

    It’s one thing to stretch the law to stop a criminal syndicate or terrorist organization. It’s quite another when prosecuting a reckless young man.”

    This is the sentiment that turns Wu’s argument from a good hearted effort to bring focus on the absurdity of Swartz’s treatment into a ludicrous farce.

    Overzealous prosecution and abuse of law is that regardless, and it’s the precise attitude that “breaking the law is okay so long as I agree with the cause” and its corollary “well we’re not law breakers like THOSE people” that ends up with so many tragic consequences.Report

  10. Kazzy says:

    Can we agree on one thing: Swartz was not a reckless youth? Many folks here have characterized his efforts as civil disobedience and point to larger, systemic issues he was attempting to expose and/or correct. That seems like pretty calculated and deliberate action, quite far from “reckless”. It might have been risky and might have carried with it consequences, the likes of which I’m sure Swartz knew (though he might not have realized the full extent of them), but this wasn’t some wayward teen acting without thinking. It was an adult engaging in a specific set of actions for a very specific reason.Report

    • zic in reply to Kazzy says:

      Thank you.Report

      • Kazzy in reply to zic says:

        For? I’m not sure if this is sarcastic or not and want to assume the latter. Can you flesh this out a bit? Thanks.Report

        • zic in reply to Kazzy says:

          Thank you for saying his were the actions of an adult; they were considered actions, not youthful indiscretions, which suggests thoughtlessness.

          I’m not being sarcastic. I don’t think Swartz an innocent; I also don’t think him a hero. I think he was an agitator, perhaps something of a visionary, pushing for change in an area that needs change. He was human, and so he was complicated. He deserves credit for the agency he took on himself. Calling him ‘reckless’ denies him that agency.Report

          • Kazzy in reply to zic says:

            Gotcha. Yea, it seems Mr. Wu was waging a PR campaign on behalf of an acquaintance and someone whom he identified with. I found that a bit unseemly, which was really my motivation here.Report

    • Kim in reply to Kazzy says:

      yes. that popcorn kid from Tn (or was it Kentucky) was a reckless youth.Report

  11. Chris says:

    Kazz, to your other point, I think you’re right, white, well off dude whose popular among intellectuals is going to get a lot more attention when prosecutors overreach than the people who are usually the victims of prosecutorial overreach. It’d be nice if that weren’t the case. It will always be the case.

    One potential positive, however, is that cases like this may get people to enact policies that help curb prosecutorial overreach in the ignored cases too. At least, we can hope.Report

    • Kazzy in reply to Chris says:

      Heh, actually, that was my ENTIRE point. I didn’t mean for this to riff off into a convo on IP, but, hey, it’s interesting as shit. I was pointing towards the way guys like Swartz get held up as reckless youths who should not be subject to the heavy hand of the law, but so many other folks don’t get such support. And while prosecutorial overreach may be curbed, you still need folks to take an active interest to make sure that the curbing is enforced. Will Mr. Wu be interested in doing so?Report

      • Chris in reply to Kazzy says:

        No, he won’t, just like the people reporting on every detail of the shooting in Connecticut won’t be in Chicago or Detroit or Memphis or New Orleans or Philly or DC or any other place where violence against children and innocent adults is an everyday thing anytime soon.Report

        • Kazzy in reply to Chris says:

          I’m pretty sure I am on record as objecting to much of that, as well.

          As I learned from some thoughtful work here (I believe by Will Truman but I might be misremembering that), I don’t like the “silence is deafening” card. Wu should not be expected to dedicate his life to reporting on every apparent instance of prosecutorial abuse or reckless use unfairly railroaded by the system. But Wu’s piece and the quote in particular seemed to represent a broader media narrative, a media narrative afforded to a very specific part of the population.

          Hell, I bet I could find more articles labeling Trayvon Martin a criminal that Swartz. That’s troubling.Report

      • NewDealer in reply to Kazzy says:

        I think I tried to address that above.

        The American way seems to be wanting to have your cake and eat it too.

        I think a lot of people want zealous prosecution for the stuff that they hate but more mercy for the stuff that does not bother them so much. Unfortunately this depends on who the defendant is often and how similar he or she is to us on tribal lines.Report

  12. Matty says:

    I hadn’t heard of this case till just now but it may be of interest that I was reading recently that the EU Commission is considering making publishing in open access fora a condition of their research funds.Report

    • Nob Akimoto in reply to Matty says:

      I hope someone like Ron Wyden takes this up as a cause.

      If the Federal government started mandating something of this nature, open access would take off very quickly.Report

      • zic in reply to Nob Akimoto says:

        This is an interesting notion.

        Government information is, in theory, public record. FISA law means that I can ask for any information that is not classified; though I might end up being charged a large fee to actually get that information, depending on how I word the query. One could think of federally funded research as falling under FISA, that the same public right-to-know should apply unless the research is classified for national defense.

        During the Bush years, I saw a growing trend to take that data off line and put it behind a pay wall, turning it into a profit center for the government. I was particularly distressed to see EPA information disappear from 2002 to 2006; this figured largely into my becoming a reformed journalist; the tools I needed were vanishing. While the trend to information disappearing behind a pay wall seems to have stopped under Obama, I can’t say that it’s reversed — that previously available information has become available again — but I’d guess this is, in part, a funding issue; it costs money to make data available in useful formats.Report

  13. Jeff No-Last-Name says:

    I think the actions of the RIAA (and the judges who uphold them) are far more heinous than even the prosecutors here. Fines of thousands of dollars PER SONG inflicted on teens (and pre-teens) to me constitutes “cruel and unusual punishment” — we don’t inflict equal penalties for stealing candy bars. And that money doesn’t go to the artists, either.

    What I think is MUCH more fair is a fine of from 2 to 10 times the cost of the song (up to $10 fine per song), with ALL of that money going to the creators of the song. And the RIAA should be prosecuted under the RICO Act.Report

    • RTod in reply to Jeff No-Last-Name says:

      The potential problem with this is that fines are also meant to act as a deferent.

      If, for example, you said that corporate negligence suits could only award 2-10 times the amount of money lost by the plaintiff, it would not as a deterent, because only one in about 100,000 misdeeds might end up in court. Punatice penalties that make it cost efficient to break the law don’t work well over time.Report

      • Jeff No-Last-Name in reply to RTod says:

        In that case, stealing a candy bar should have a thousand dollar fine as well. We don’t have deterrents for most of these very low-level crimes. Haul the kid into court and have the judge give them a Very Stern Talking-To, but there’s no reason to bankrupt someone do that a record exec has a little more coke for when Charlie Sheen drops by.Report

  14. zic says:

    Were I reporting on this, I’d do so from the business perspective of JSTOR; questioning what it was the Swartz felt compelled to challenge. I thought you might be interested in how I’d start such a process.

    JSTOR seems hard to pin down in preliminary searches, but that’s because it’s a division of a non-profit called ITHAKA, the umbrella agency for three groups, JSTOR, Portico, and Ithaka S&R.

    Like all non-profits, ITHAKA files Form 990 to the IRS each year documenting their financial information, and this is a public document. The financials are not broken down by the different groups, so I can’t sort JSTOR out. It reports revenue in excess of $58m; expenses of about $54m. It’s available here

    ITHAKAR’s philosophy is also interesting:

    We are fully engaged members of the academic community, and our principles derive from the universities, colleges, libraries, scholarly societies and other institutions around the world that we serve. Our fundamental aim is to support the advancement of research, teaching, and learning worldwide.

    Innovative Uses of Technology
    Rapidly advancing technologies enable the academic community to accelerate the impact of its work. We facilitate and implement new, advanced approaches and services to enhance impact while serving academic values.

    Working from “Within”
    The institutions that form and support the academic community provide deep and enduring value. We believe that helping these institutions transform themselves by making the best use of new technologies offers the greatest benefit for society.

    Economic Sustainability
    Big ideas must be incubated over time and implemented in stages to ensure viability. This demands thoughtful attention to scale, impact, and finances. At ITHAKA, ensuring sustainable impact is our primary objective.

    It sounds contradictory to me; accelerating learning by incubating big ideas slowly. But I nitpick the groupthink, which I typically find hilarious. And from what I’ve seen JSTOR technology lags behind Googles.

    The form 990 reveals that on that revenue, the three organization earned $39m in access fees, and paid slightly less then $10m to publishers. Legal fees were about $50,000, IT costs $4m. Journal scanning, done by subcontractors, about $2.25m. Staff salaries look within the normal range, though they have a large number of employees earning over 100K a year for a non-profit. Were I questioning them about this form, the 2010 return, I’d ask about the $4m in expenses under ‘other.’

    To put this in perspective; there have been hundreds of times I’ve wanted to skim an article on JSTOR to see if it addressed a topic I was researching; typically it would have cost me $50. When you’re earning $250/story on short deadline and have no expense account, that’s unreasonable. I can imagine many situations where the information in these articles would be of value to someone without JSTOR access, where the individual fee would be prohibitive. I was lucky, if the author hadn’t made the work available on line, a librarian would download and email articles to me. I bless librarians wherever they may be found.

    It should be noted that the JSTOR website says they settled any complaints with Swartz, and he returned all materials taken, in June, 2011. Since he returned the materials without distributing them and JSTOR dropped the complaint, I have to wonder why the prosecutor continued with a case; putting enough pressure on Swartz that he felt compelled to commit suicide. I don’t know if it would be granted, but as a reporter, I would ask for details of what type of plea bargain was being offered, what types of threats of punishment/sentencing pointed out if it went to trial.Report

  15. Jaybird says:

    Here’s one of the things that bugs me. It’s not that so-and-so broke the law. It’s not even that the prosecutors brought charges. Hell, it’s not even that they brought the full-force of the law against so-and-so.

    It’s that there are exceptions made for pretty much every law, whenever it’s enforced. It’s enforced selectively. We have a case here where the prosecutor enforced the law with a zealousness that, say, a law against Someone Connected wouldn’t have been prosecuted at all. “This is de minimus”, one could see a prosecutor saying. “I don’t want to waste the grand jury’s time.”

    He does it, though. He does it *LOUD*. And the Prosecution makes an example of him.

    If I saw the law as being upheld, it’d be easier for me to say “the law is being upheld”. Instead, I see a message being sent and the law is the medium for the message.Report

  16. James K says:

    The thing that utterly horrifies me about this case is not the fact he was taken to court, I’m OK with large-scale copyright infringement being a crime (though lesser stuff should probably just be a tort). No, the thing that horrifies me is the sheer magnitude of the sentence. The US has what seems like absurdly harsh punishments by the standards of any other “Western” country. You can’t get a 35 year sentence in New Zealand, the closest equivalent is Preventive Detention, which is a “we’re not letting you out until you demonstrate you’re no longer a threat” sentence reserve for mass murderers and serial rapists.

    There’s just no way a 30-year prison term is appropriate for what is a fairly minor offence. I don’t see the logic behind any custodial sentence for this, just fine him and be done with it.Report

    • Wardsmith in reply to James K says:

      Something about this whole thing tickled my memory so I Netflixed this episode last night.

      At the time it was being passed we called the Digital Millennium Copyright Act the Permanent Publisher Mausoleum Act. While the bought-and-paid for politicians were pretending it was all about the “authors” the reality is it was all about the publishing houses. The authors got the stinky end of the stick. At the end of the day, who has sympathy for the big publishers?Report