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JSTOR an Entitlement For US DoJ's Ortiz & Holder 287

Posted by Soulskill
from the lots-of-work-to-be-done dept.
theodp writes "If Aaron Swartz downloaded JSTOR documents without paying for them, it would presumably be considered a crime by the USDOJ. But if U.S. Attorney Carmen Ortiz or U.S. Attorney General Eric Holder did the same? Rather than a crime, it would be considered their entitlement, a perk of an elite education that's paid for by their alma maters. Ironically and sadly, that's the kind of inequity Aaron railed against with the Guerilla Open Access Manifesto, a document the DOJ cited as evidence (pdf) that Swartz was a menace to society. On Thursday, Ortiz insisted Swartz — who she now characterizes as 'mentally ill' — received fair and reasonable treatment from the DOJ. But that wasn't good enough for Senator John Cornyn, who on Friday asked Eric Holder to explain the DOJ prosecution of Aaron Swartz." Federal prosecutors have come under heavy criticism for their handling of the Swartz case. Legal scholar Orin Kerr provides counterpoint with two detailed, well-reasoned posts about the case. Kerr says that, as the law stands, the charges against Swartz were "pretty much legit," and that the law itself should be the target of the internet community's angst, rather than the prosecutors. "...blame the system and aim to reform the system; don’t think that this was just two or three prosecutors that were doing something unusual. It wasn’t." James Boyle, co-founder of the Center for the Study of the Public Domain, disagrees with Kerr (partly), arguing that Swartz's renown is simply drawing people together to collectively shine a light on poor legislation and poor prosecutorial practices.
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JSTOR an Entitlement For US DoJ's Ortiz & Holder

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  • The law is a ass. (Score:5, Insightful)

    by Impy the Impiuos Imp (442658) on Saturday January 19, 2013 @12:45PM (#42633945) Journal

    While he may have had issues, it's dangerous to characterize different opinions as mentally ill.

    • by Anonymous Coward on Saturday January 19, 2013 @12:59PM (#42634027)

      While he may have had issues, it's dangerous to characterize different opinions as mentally ill.

      Yeah but we live in McCarthy-era, can't you tell? Well, it's a novelty really. It used to be communists, then it was minorities, then pedophiles, then terrorists, then computer hackers. Now it's the "mentally ill".

      See how that works? Label, then persecute. I can't wait to see how events unfold in New York based on their new unconstitutional and persecuting gun laws.

      They're coming for your guns, what are you going to do when they label you "mentally ill"?

      • by davydagger (2566757) on Saturday January 19, 2013 @01:05PM (#42634071)
        "They're coming for your guns, what are you going to do when they label you "mentally ill"?"

        with no chance for a second opinion, no appeals, no lawyers, no burder of proof on anything.
        • by jc42 (318812) on Saturday January 19, 2013 @02:07PM (#42634351) Homepage Journal

          ... what are you going to do when they label you "mentally ill"?

          And we might note how easy it can be to get such a label. One of last year's minor science/medical news stories that was picked up by some reporters, and also by a number of comedians, was a change made by the American Psychological Association (APA) to their definition of "depression". The fun part of this story was the previous definition, which included the case of a loved one dying, and a survivor's mourning continuing for more than a month. This was all it took to get a diagnosis of depression, and a "mentally ill" label. The time period has now been extended somewhat, but that won't affect the medical records from previous years.

          So if someone close to you dies, you might want to be careful to hide signs of sadness when talking to medical people (or strangers ;-), lest you end up on the list of people determined to be mentally ill by a professional psychiatrist.

          It really is that easy to get "mentally ill" on your medical record, to be used against you in cases like this.

          • Theodp is the one being an ass here. Ortiz said:

            My understanding is that some issues about a year and a half ago came up regarding his mental illness and they were addressed at the arraignment.

            Theodp wrote:

            On Thursday, Ortiz insisted Swartz — who she now characterizes as 'mentally ill' — received fair and reasonable treatment from the DOJ.

            While similar, the phrases "mental illness" and "mentally ill" have different implications. A 'mental illness' is something you have. It is something that you possess, it doesn't define or negate what you are. 'Mentally ill' is something you are, it defines who and what you are. Theodp is misquoting Ortiz, and putting words in her mouth. He is the one using the phrase 'mentally ill' to label Swartz, not Ortiz, making it sound like she's being ca

            • by HiThere (15173)

              I, personally, would say she is engaging in carefully constructed slander which is probably just this side of illegal. Not that she would be in any danger no matter what she said. He's dead, and precedent says that you can't slander the dead.

          • The real issue is that people see "mentally ill" as negative and you're post clearly implies that too. I'm "mentally ill" having had bipolar since my early teens and being treated multiple times for suicidal attempts. I proudly talk about my depression if someone asks or the subject comes up, it's the only way to fight the stigma and get people talking more about it.

            I guess in Australia it's not view as badly (wow, never thought I'd say that) as the states?
        • by OzPeter (195038) on Saturday January 19, 2013 @03:15PM (#42634713)

          "They're coming for your guns, what are you going to do when they label you "mentally ill"?"

          Its things like this that makes me think that the NRA is a huge hypocrite when it comes to the second amendment. I was listening to the NRA's president on NPR last week and he was adamant that mentally disturbed people should be allowed to have guns, and that all law abiding citizens should be allowed to have them. Aside from the fact that mentally disturbed people can be law abiding I see nothing in

          A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

          Where it says ".. except if they are mentally ill, or felons". In my opinion the position of the NRA is akin to the old joke with the punchline

          now we are just haggling over the price

          and that they are already supporting abridgment of the second amendment - just only one that suits their selfish beliefs.

          • Re: (Score:2, Insightful)

            by celle (906675)

            "and that they are already supporting abridgment of the second amendment - just only one that suits their selfish beliefs."

                  As opposed to your selfish beliefs. The BULLSHIT goes both ways.

          • by celle (906675) on Saturday January 19, 2013 @04:40PM (#42635169)

            "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

                  It makes all gun control law illegal, period. I know, how about repealing the 2nd amendment. You know the only legal way instead of the illegal way of marginalizing it to irrelevance. Oh right because it wouldn't happen and a civil war would spring up the next day if it did. So disarm the population any way you can so they are not a threat to government abuses. Government cannot be trusted ever, even the framers of the constitution knew this.
                    Here's a remedy from before the 1980's. How about treating people with physical and mental problems by treating the actual cause of the problem instead of the symptoms? Right, because that would cost time and money. Never mind it took time and the lack of money to make the problem this bad in the first place.
                    Now how about getting On Topic.

            • Re:The law is a ass. (Score:4, Informative)

              by the eric conspiracy (20178) on Saturday January 19, 2013 @06:53PM (#42635719)

              That's ridiculous. No right is absolute. Congress shall make no law.... except of course slander etc are illegal. The guarantee of free exercise of religion does not permit you to harvest whores off the street and stone them according to the requirements of various religions.

              I am sure the founding fathers would recognize that public safety does in fact place restraints on gun ownership as well.

        • by slick7 (1703596)

          "They're coming for your guns,.

          That's easy to correct, have Holder sell you guns all the while you claim to be a Mexican drug cartel dealer. It worked in Mexico and it worked in Oklahoma City.

    • its been going on for years, and it needs to stop.

      Everytime "treating mentally ill", gets brought up in the news, its always been a highlight after some tragedy, with the implications the treatment was non-consentual, with zero burdern of proof, and no restrictions on treatments, nor any sort of legal, or public oversight.

      Its been well known for a long time that if you can label someone "mentally ill", without really specifying, or rapidly chaning diagnosis, you can get most of mainstream society to stop as
    • Re: (Score:2, Interesting)

      by Anonymous Coward

      it's dangerous to characterize different opinions as mentally ill.

      This is very true, but anyone who takes their own life is going to be tainted by the possibility of being "mentally ill" because suicide isn't commonly accepted as the act of a "well" individual.

      • by jedidiah (1196) on Saturday January 19, 2013 @01:36PM (#42634209) Homepage

        That's nothing more than cultural bias.

        Plus there's always context. This wasn't just some teenager worried about not being asked to the prom. This was a kid that was facing having is entire life destroyed apart by the government.

        That kind of situation is quite often NOT portrayed as a sign of mental illness when the result is suicide. (even in the West)

        • by flyingsquid (813711) on Saturday January 19, 2013 @05:12PM (#42635291)

          That's nothing more than cultural bias.

          Plus there's always context. This wasn't just some teenager worried about not being asked to the prom. This was a kid that was facing having is entire life destroyed apart by the government.

          That kind of situation is quite often NOT portrayed as a sign of mental illness when the result is suicide. (even in the West)

          The plea deal offered by the government was six months in jail and a felony conviction. Yes, the punishment is out of all proportion to the crime. It's wrong. It's a bullshit deal. It's six months more than anyone on Wall Street served after they blew up the banking system and destroyed the world's economy. But most people, faced with the choice of being unjustly convicted and losing six months of your life, and losing the entire rest of your life, will take six months. It wasn't the end of everything. After six months for trying to liberate the entire contents of JSTOR, he would have come out of prison a martyr and a hero. Serving time for an idealistic, altruistic act like that would have given him a credibility that no other activist had. He would have had the rest of his life to use his notoriety to push for internet freedom.

          But that's the kind of optimistic, lemons-into-lemonade kind of thinking you just can't manage when you're severely depressed.

      • by celle (906675)

        "because suicide isn't commonly accepted as the act of a "well" individual."

            Except in times of war or fighting crime and then we give medals and accolades for it. Especially when he or she survives the attempt. We call them heros.

    • by boorack (1345877) on Saturday January 19, 2013 @01:21PM (#42634147)

      Carmen Oritz routinely destroys other people lives in order to advance her career without any signs of conscience. For me this is psychopatic behavior. And if her career is the only thing she actually cares of, I'd even call her narcissistic psychopath. Unfortunately, the economic and political system in US promotes psychopaths at the cost of basically everyone else.

      I wouldn't pay much attention to what she has to say, she just covers her ass. Psychopaths typically don't show any remorse for their actions - when caught on misbehaviors and lies, they tend to cover it with even bigger bunch of lies.

      • by celle (906675)

        "For me this is psychopatic behavior."

              Doesn't that classify her as mentally ill. Time to lock her up, preferably with the people she put in.

    • If Google put into their website terms that anyone in law enforcement or a member of congress was not allowed to use Google's services, how long would it be before breaking a site's terms was no longer a criminal act?

      Actually, even if Google does not do this, how about a grassroots campaign to do it?

    • by celle (906675)

      "While he may have had issues, it's dangerous to characterize different opinions as mentally ill."

      In this case, lethal. He wasn't mentally ill. There's evidence he weighed his choices and the outcomes. The behaviors of a rational individual. A law used outside of the corner case it was written to solve is often wrong but applied regardless. This abuse is what is being used as a defense by the prosecutors. When a lawyer can't use public opinion to defend themselves they hide behind the

  • In addition.... (Score:5, Insightful)

    by RatPh!nk (216977) <ratpH1nk@nospaM.gMail.com> on Saturday January 19, 2013 @12:48PM (#42633961)
    First let me say that my area of research is medicine. There is a lot of tax payer funded research that is inaccessible to the public despite their hand in its creation. I think that this aspect needs to be discussed, as well.
    • Re:In addition.... (Score:5, Insightful)

      by Sir Homer (549339) on Saturday January 19, 2013 @01:00PM (#42634035)

      There is a lot of tax payer funded research that is inaccessible to the public despite their hand in its creation. I think that this aspect needs to be discussed, as well.

      I don't even see anything to discuss. Seriously, how the hell is this acceptable?

      And Swartz's super serious multi-felony crime was trying to fix this situation? Every time I look back at this case, it befuddles me. The only insane people here are the prosecution, and they need to be called out on it and punished along with everyone involved in this travesty of justice.

      • Re: (Score:3, Insightful)

        by davydagger (2566757)
        There is plenty to discuss, Tax payers dollars are used to fund research, which the tax payers have no access. What is doing in the "public good", is kept from the public.

        Then comes your "appeal to authority". Because something is currently illegal, its automaticly above debate in MORAL standing. The argument here, is SHOULD what swartz did have been a felony under law. Thats what is up for debate. I am reading a book called "they though they where free", its about german non-resistance to nazi rule. In Ger
      • by Greyfox (87712)
        This is what you get when corporations and special interests are the ones writing the laws. Congress knows by now that they just need to wave their hands and make a show of caring until the outrage blows over and then they can go back to business as usual. They only have to worry about getting elected every few years, and by then most people will have forgotten about this. Hell, if you asked any handful of random people about it now, I'm pretty sure most of them wouldn't know what you're talking about. Educ
      • Re:In addition.... (Score:5, Insightful)

        by rsmith-mac (639075) on Saturday January 19, 2013 @02:34PM (#42634479)

        I don't even see anything to discuss. Seriously, how the hell is this acceptable?

        Ultimately it comes down to money (and I don't mean that in a snide conspiracy way). It costs a fair bit of money to create and operate a system as expansive as JSTOR, not to mention the high cost of acquiring the journals themselves. Academia never completely got its act together, so the final solution was for a private entity to operate it, the non-profit Andrew W. Mellon Foundation. Since then they've been rolled into the equally non-profit ITHAKA, which operates JSTOR to this day.

        It should come as no surprise of course that even as a non-profit, JSTOR has to charge for access to journals for two reasons. First, they need to provide access control as per any content licensing agreements with journal publishers - most of whom are non-profits themselves and need to pull in enough revenue to publish their journals - as otherwise everyone would read JSTOR for free and not purchase journal subscriptions (and since JSTOR would not be bringing in any revenue, they could not pay the journals either). Second of course is that operating the JSTOR system costs money, and if journals could be freely copied out, everyone would take the good stuff (and admittedly probably take good care of it) but then cancel their JSTOR subscriptions. This would leave behind a number of smaller journals that are suddenly not getting digitized and archived. The whole academic journal system is one big case study in the tragedy of the commons: everyone wants it for free, but no one wants to pay to operate the journals or the storage systems.

        Consequently, whether journal access is free or not is really up to Congress, as only government can solve the tragedy of the commons. If Congress were to task the LoC with creating an equivalent system and funded that mandate (i.e. made everyone pay for it) then an open system could be built or JSTOR acquired. Congress already provides a bit of funding for JSTOR in a roundabout way, as ITHAKA has received some small grants from various government departments over the years, including the Library of Congress. So this pretty much comes down to Congress increasing their funding for these projects.

        Until then however, JSTOR will remain behind a paywall. Someone has to pay the costs of the journals and the systems, and if it isn't the public then it will be a private system.

        TL;DR: JSTOR would be free if Congress would pay for it rather than leaving this up to private industry

      • Re:In addition.... (Score:4, Insightful)

        by blueg3 (192743) on Saturday January 19, 2013 @03:01PM (#42634629)

        I don't even see anything to discuss. Seriously, how the hell is this acceptable?

        It basically works like this. Back in the day, there were no real open-access journals. (This was when things were actually printed and distributed, and the whole process was much less efficient.) So pay journals built up all of the good reputation. People paid to do research are expected to share their findings with the research community. Sharing with the public is nice, but it's not a key component of the research process. So now all the paid journals have the best reputations, the most visibility, the highest readership. So publishing in those is "better" than publishing elsewhere. As such, your funding agencies think that you're doing your job "better" if you're publishing in these journals, which happen to be paid. (The fact that their paid has nothing to do with it -- it's solely that higher-reputation journals are better.)

        This all changes if your funding agency requires that you publish your paper in an open-access journal, which the NIH has started doing. (It does some other interesting things, too. It increases the reputation of the open-access journals, which helps, in the long term, make open-access journals a good choice for people whose funding agencies don't require this. Also, if the funding agency is big enough, it starts making the high-profile paid journals back down on their stance on exclusivity, which enables researchers to publish in both an open-access location and a paid, refereed, high-profile journal.)

  • by sesshomaru (173381) on Saturday January 19, 2013 @12:52PM (#42633985) Journal

    "On Thursday, Ortiz insisted Swartz â" who she now characterizes as 'mentally ill' â" "

    Yeah, they used to say that about dissidents in the Soviet Union, too.

    • Re: (Score:3, Informative)

      by Anonymous Coward

      Quite true, and quite extensive.

      Political abuse of psychiatry in the Soviet Union [wikipedia.org]

    • "On Thursday, Ortiz insisted Swartz -- who she now characterizes as 'mentally ill' --"

      So how long has she been investigating him . . . ? And now his 'mentally ill' issue comes up . . . ?

      Sorry, I don't buy that. That boy was investigated so thoroughly, she knew where every pimple on his ass was. She is trying to toss him into the 'mentally ill` tank with the current catch of shooters, hoping that 'mentally ill' now tags someone as a criminal, in the public eye.

      She is just trying to save her political career. She had her eyes on Senator or Governor of Massachusetts.

  • Blame Both (Score:4, Insightful)

    by jythie (914043) on Saturday January 19, 2013 @12:54PM (#42633993)
    While true that, in theory, prosecutors are just enforcing the law, they have significant discretion when it comes to things like even bringing any charges in the first place. As any victim of petty crime and they will usually have a tale of how the police or prosecutor just didn't bother doing anything even though the law said crime was committed.
    • Re:Blame Both (Score:4, Insightful)

      by jedidiah (1196) on Saturday January 19, 2013 @01:42PM (#42634241) Homepage

      Yes. THAT.

      If you had your life savings swindled from you, you would see just how quickly these prosecutors would be willing to ignore the perpetrators. The feds and their state equivalents will likely just blame you for being the victim and just ignore you and the crime you just reported.

      "But they are just enforcing the law" rings hollow when you have been on the other side of the scales and have been ignored.

      Justice is a sham and these people are just "career minded opportunists".

  • by rwade (131726) on Saturday January 19, 2013 @12:55PM (#42634009)

    Rather than a crime, it would be considered their entitlement, a perk of an elite education that's paid for by their alma maters.

    The list that is linked to does not include Stanford...but that is where Swartz started college. The suggestion that he did not have access to an elite education is rediculous under the circumstances. So not only is the premise of the idea that people as alums of certain schools would not be prosecuted for pulling every journal off JSTOR and putting it out on the web laughable but the particulars not really compelling. Stanford is a pretty good school.

    • by alostpacket (1972110) on Saturday January 19, 2013 @01:07PM (#42634085) Homepage

      Indeed, this is hate mongering. JSTOR dropped the charges and is putting out an olive branch (granted it's a tiny one). Now if this were about pushing publicly funded articles and papers to the Library of Congress or otherwise opening that up to the public, then that is a discussion worth having. Trying to paint the prosecutors as part of a privileged "elite" evil is unproductive. The issue is getting the public access to public information, not the perceived hypocrisy of who currently has access.

      • by tqk (413719)

        The issue is getting the public access to public information, not the perceived hypocrisy of who currently has access.

        Is it? That was Swartz's issue, but I think this debacle has devolved into shining a light on the US' corrupt practice of plea bargaining, and that's a far bigger issue than access to public information. "We'll let you off on the 35 years of prison if you'll cop a guilty plea, pay a million dollar fine, and accept a criminal record. We don't much care whether you're actually guilty or not, because we don't have to care. So, which bung hole do you want to be pushed into, kid?"

    • The suggestion that he did not have access to an elite education is rediculous under the circumstances.

      Yes, it would be ridiculous, that's why no one is making it.

      The point of bring up this policy is that Swartz was not working for the benefit of Stanford alumni. He was working to benefit EVERYONE, including people who can't even afford community college.

  • by jfengel (409917) on Saturday January 19, 2013 @01:03PM (#42634061) Homepage Journal

    I don't understand the point of this article. Holder and Ortiz (or somebody, if they were on scholarship) paid for those college educations. If one of the perks of that payment is lifetime journal access, what on earth does it have to do with this case?

    If this was an overzealous prosecution, then it should be investigated, and possibly procedures changed to prevent it in the future. And I certainly agree that journal access has become utterly disproportionate.

    But most of what I read about this case is a rush to judgment that makes no more sense than the prosecution is being accused of. And articles like this bolster that impression, jumping to conclusions and engaging in character assassination because we liked one guy and therefore hate the other guys.

    Things need to be fixed, but that's best achieved with clarity, not more obfuscation.

    • by Trepidity (597) <delirium-slashdot@h a c k i sh.org> on Saturday January 19, 2013 @01:07PM (#42634079)

      The fact that the fruits of scientific research are available only to people who "paid heavily" is precisely the objection.

      • by alostpacket (1972110) on Saturday January 19, 2013 @01:45PM (#42634253) Homepage

        Is it? Or is this article an attempt to paint and shame the prosecutors as privileged? I suspect it's the latter.

        JSTOR is a not-for-profit and dropped the charges against him. They offer some articles to individuals for free, and now have opened more articles via the Alumni Access program. What they do isn't evil. Rather, they could do more, provide more access. So why are we sitting debating about what access the prosecutors had to JSTOR? It's irrelevant to the larger conversation.

        The discussion we should be having:

        1) Should all scientific studies be public domain?

        2) If so, how should access be provided? Who pays to maintain upkeep?

        3) Should all publicly funded science be made public? (probably and obvious yes here)

        4) If so, how should access be provided? Who pays to maintain upkeep?

        I'd like to think Scwartz's goal was bigger than these small-minded, egotistical prosecutors. Lets talk about how we can open up the data, not how to engage in a witch hunt. Prosecutorial overreach, to me, is a separate conversation.

        • by the eric conspiracy (20178) on Saturday January 19, 2013 @01:56PM (#42634303)

          The meme that the public does not have access to this stuff is just wrong.

          There are large public libraries that offer public access to JSTOR. For example the Boston Public Library.

          JSTORs fees are graduated based on the size of the library, so even a small library can afford access.

          Many universities offer library cards to the public; for example my employer paid for my Princeton University Library card for about 10 years. Not cheap but in fact it gave me access to pretty much the sum total of all human knowledge. And maintaining a collection like that is clearly not free.

          • by nbauman (624611)

            I visited the Boston Public Library once to catch up on my journals. Nice place.

            In New York City, there is basically no public access to basic scientific and medical journals. A few years ago, I couldn't find a public library with the New England Journal of Medicine, so I subscribed myself. That's a pretty basic journal. Last time I looked, there was one public library with the NEJM in the entire borough of Manhattan. And they only subscribed to the paper edition, because the online edition (which has lots

            • by khallow (566160)

              One of the tangental problems is that this country has shrunk government services and we no longer have free libraries the way we used to. Or free education.

              There's never been "free" libraries or education. Someone pays for it. That money goes to other things now.

        • by Trepidity (597)

          I'd like to think Scwartz's goal was bigger than these small-minded, egotistical prosecutors. Lets talk about how we can open up the data, not how to engage in a witch hunt. Prosecutorial overreach, to me, is a separate conversation.

          I agree we should talk about something bigger than specific people, but Swartz was extremely interested in injustice in addition to information freedom, so I don't see it as an either-or. We can talk about how to open data, and we can also talk about how to reform the American c

        • How could JSTOR provide more access without raising fees? They are already non-profit.

          • by symbolset (646467) *
            There is some evidence that they are technically incompetent. Their servers were crashed by one kid with a laptop downloading too many articles too fast.
        • by symbolset (646467) *
          It is the objection. The entire point of doing this research and writing these papers is to "expand the pool of human knowledge". That is the whole motive of "publish or perish": that knowledge be shared, tested, and built upon so that we might have progress in science. Not progress for the privileged few, but progress for all. Not progress slowed by general release of the knowledge after "forever less one day" but right away.
      • A Princeton university access library card costs $275/year.

        The Boston Public Library has JSTOR.

        I don't think this is having to "pay heavily".

        • by nbauman (624611)

          I needed a medical library in New York. The Columbia University library would have charged me $2,000 a year, as I recall. If I could get access to a library like Princeton for $275/year, I'd sure as hell get it.

          Makes me wonder, though -- what am I paying taxes for? I thought that was supposed to go to the library.

    • by theNAM666 (179776) on Saturday January 19, 2013 @01:32PM (#42634193)

      Moreover, if either Holder or Ortiz had hacked systems and exceeded their authorized access as Swatz did, playing a cat&mouse game with sysadmins at their home institutions and JSTOR, they'd have likely faced the same consequences as Aaron. The article is FUD.

  • by theNAM666 (179776) on Saturday January 19, 2013 @01:04PM (#42634063)

    Volokh analysis of what Swatz actually did, with detailed history:

    http://www.volokh.com/2013/01/14/aaron-swartz-charges/ [volokh.com]

    I assure you, an MIT enrollee or grad would have gotten the same treatment.

    • by symbolset (646467) *
      Volkoh suffers from the same mental illness as Ortiz and Holder: they are all lawyers.
    • by nbauman (624611)

      My big objection to the Volokh article is that he claims the laws were passed democratically.

      Given the lobbying that goes on to give each special interest special favors in the copyright laws, democracy has very little to do with it.

  • by rastoboy29 (807168) on Saturday January 19, 2013 @01:07PM (#42634089) Homepage
    Prosecutors have been running rampant all over the country for years now for their personal aggrandizement.  This time they just chose a very public and sympathetic target.

    Hang 'em all.
  • 35-50 years (Score:4, Insightful)

    by Anonymous Coward on Saturday January 19, 2013 @01:11PM (#42634109)

    From the second Kerr link [volokh.com]:

    Why are you hearing that Swartz faced 35 or 50 years if it was not true? First, government press releases like to trumpet the maximum theoretical numbers. Authors of the press releases will just count up the crimes and the add up the theoretical maximum punishments while largely or completely ignoring the reality of the likely much lower sentence. The practice is generally justified by its possible general deterrent value: perhaps word of the high punishment faced in theory will get to others who might commit the crime and will scare them away. And unfortunately, uninformed reporters who are new to the crime beat sometimes pick up that number and report it as truth. A lot of people repeat it, as they figure it must be right if it was in the news. And some people who know better but want you to have a particular view of the case repeat it, too. But don’t be fooled. Actual sentences are usually way way off of the cumulative maximum punishments.

    So if it serves as a deterrent we should be fooled, but if it applies to ourselves we shouldn't be? Personally I would be scared shitless if I saw the DOJ itself [justice.gov] make statements like that about me. Just be truthful. The US already is highly punitive [civitas.org.uk] [pdf, see page 11-12] compared to other western countries (27 times as high as where I live). If that by itself doesn't work as a deterrent then exaggerations probably won't do much either, apart from increasing the likelihood of people killing themselves.

    If bullying is part of the system, then yes, the system should be targeted. But not just by outsiders, the prosecuters themselves should have opposed the system instead of participating in the bullying. And as they did participate they should be targeted as part of the system.

    • by blueg3 (192743)

      I believe part of the subtext of the article is that that whole approach is stupid. (Of course, I'm biased. I think publishing a number like that that has no basis in reality is stupid.)

      To be fair, a person who is being intimidated by a prosecutor should have a lawyer handy, and the lawyer should explain all this. The press is free to report pretty much any crazy numbers they want, and the articles they write will largely be read by people without any legal knowledge and no lawyers hand. Stupid? Sure. But a

  • I guess she should know a thing or two about mental illness since she is, herself, a sociopath.

  • A bit disingenuous (Score:5, Insightful)

    by russotto (537200) on Saturday January 19, 2013 @01:20PM (#42634133) Journal

    It's a bit disingenuous to drive someone to suicide and then claim that the fact that they did so means they were mentally ill. It's kind of like throwing someone in the East River wearing concrete shoes and blaming them for being unable to swim.

    • by bytesex (112972)

      Nuance exists for a reason, you know. People do *not* normally commit suicide, even if they're in a confrontation with the DoJ. People however, *do* normally drown when their feet are cast in concrete.

    • by guspasho (941623)

      I've been reading through here and waiting for someone to make this point. So Ortiz thought Swartz was mentally ill. Doesn't that make Ortiz even more culpable for his death through her actions?

  • "...blame the system and aim to reform the system; don’t think that this was just two or three prosecutors that were doing something unusual. It wasn’t."

    Soooooo, if I understand correctly, she was just following orders...

    • by blueg3 (192743)

      No, you're deliberately misinterpreting it in order to make a pass at scoring some Godwin points.

      The point is that the prosecutor's behavior is not "as ordered", but rather is simply the norm for how prosecution is done. If you find that unacceptable, the appropriate path is to try to fix the use of these tactics in general, rather than singling this out as a specific case with a particular problem.

      • No, I couldn't care less about Godwin. Not all of us give a shit about mod points. In this particular instance, nothing about it was normal. They went out of their way to go after the guy, even after being asked to drop it. There are actual crimes that they could be prosecuting, but this is the crap they go for instead.

        • by blueg3 (192743)

          No, I couldn't care less about Godwin. Not all of us give a shit about mod points.

          Not mod points, Godwin points. You're baiting a comparison to Nazis.

          In this particular instance, nothing about it was normal. They went out of their way to go after the guy, even after being asked to drop it.

          Asked to drop it by whom? JSTOR? This isn't a civil case, it's criminal. JSTOR is only one of the injured parties, and the state doesn't need any injured party's permission to bring charges.

          They didn't go out of their way to go after him, they just went after him. It's their job, it's how prosecution is done, and it's normal. You can think it's unfair, but you shouldn't think that it's unusual just because it got media attention. It's not.

          There are actual crimes that they could be prosecuting, but this is the crap they go for instead.

          T

      • by flonker (526111)

        "Just following orders" is wrong not because someone higher up gave the order. It's wrong because despite the government condoning the action, the person doing it should know better. Therefore "everyone does it" is pretty much the same thing as "just following orders".

      • If you find that unacceptable, the appropriate path is to try to fix the use of these tactics in general, rather than singling this out as a specific case with a particular problem.

        Why not single out the evil doers like Oritz? Why should they get a free pass just because some other people are evil as well. If scum like these prosecutors had to actually face consequences for their actions, you can be sure that the "system" would change pretty quickly.

    • by nbauman (624611)

      No, she was just following her career and financial incentives.

  • What baloney. Prosecutors make decisions about whom to go after and for what all the time. The law is the law is just total BS.

    I will repeat, so I can be labeled as flamebait again, that the real culprit here is Mr. Unequal Justice himself, the POTUS and his slimy DoJ, of which the Boston prosecutors are just cogs in a smoke manufacturing machine.
  • JSTOR (Score:5, Informative)

    by the eric conspiracy (20178) on Saturday January 19, 2013 @01:41PM (#42634235)

    I am an alumnus of one to the members of the JSTOR alumni program (Yale).

    This article is VERY misleading.

    JSTOR is a non-profit company founded by an ex-president of Princeton University aimed at reducing costs associated with maintaining large archives of journals at universities.

    The alumni access to JSTOR described was part of a PILOT PROGRAM. This has been extended to all institutions that participate in JSTOR.

    In addition JSTOR had nothing to do with the criminal charges brought against Aaron Shwartz. JSTOR asked that no charges be brought.

    This was solely the result of actions taken by MIT and the DOJ.

    JSTOR in fact is very inclusive. They have programs that provide access to secondary schools, public libraries and so forth.

    http://about.jstor.org/fees/13006#tab-fees [jstor.org]

    Also JSTOR hosts significant public domain content that is available free to anyone.

    • How to Subscribe [jstor.org]: "The Alumni Access participation fee for subscribing institutions is 10% of the institution's total AAF. Subscribing institutions must support the bifurcation of alumni from their main JSTOR account via IP based access methods."

  • ...it's not like there haven't been young people committing suicide after being railroaded on charges for things they absolutely didn't do, in this country, for years.

    But they're minorities and poor and must have been guilty, right?

    Let a tech-elite white kid run afoul of the legal mechanisms, though...

    • by Elbereth (58257)

      Yeah, it reminds me of Missing white woman syndrome [wikipedia.org], a strange media bias that over-represents attractive, young, upper-middle class woman, in cases of abduction. Swartz obviously wasn't a missing white woman, but a similar medias bias comes into play. People cast him as an innocent martyr, squashed under the boot of an authoritarian system, ignoring all of the victims that weren't upper-middle class, professional males.

      You can look at it as media bias, racism, classism, tribalism, or a combination of all

  • by tukang (1209392) on Saturday January 19, 2013 @01:50PM (#42634275)
    What a bunch of crap. The system allowed for Mrs. Ortiz to not Charge Aaron at all if she so chose. Certainly, she didn't have to charge him with a dozen of felonies. http://takingnote.blogs.nytimes.com/2013/01/18/aaron-swartz-and-prosecutorial-discretion/ [nytimes.com]
  • Following Orders (Score:5, Insightful)

    by RichMan (8097) on Saturday January 19, 2013 @01:58PM (#42634313)

    "It's not my fault, I was just following orders."

    I thought as a society we had long ago decided that was not an excuse. I thought all lawyers on whatever side were agents of the judicial system and were looking for justice.

    It seems our society has forgotten something. If you are doing wrong you are responsible, no matter the chain of command, it is an individuals responsibility to not do wrong and to reject a bad system. This should go doubly so for any agents of the justice system.

    Shame on the system. Shame on the individual.

    • by mbone (558574)

      "It's not my fault, I was just following orders."

      I thought as a society we had long ago decided that was not an excuse.

      Haven't you heard ? In this century, the US only prosecutes those who are following orders. Those giving the orders are apparently totally immune. This started with Abu Graib and continues, literally, to this Friday [salon.com].

    • by cpghost (719344)

      I thought as a society we had long ago decided that was not an excuse. I thought all lawyers on whatever side were agents of the judicial system and were looking for justice.

      You are confusing justice with the judicial system. The former is an ideal, the latter the naive attempt at delivering it. Give it some time, and every judicial system (both the judiciary and legislative branch) will inevitably turn justice upside down and morph into an instrument of power and oppression. We're human, that's the way i

    • by guspasho (941623)

      We had long ago decided on lots of things, but government and society changes their minds. The principles upheld in the Nuremberg Trials are one of those things that time and again it's been demonstrated that we as a society have changed our minds about. We have become the enemy.

  • by bzipitidoo (647217) <bzipitidoo@yahoo.com> on Saturday January 19, 2013 @02:03PM (#42634333) Journal

    What should happen next?

    • Fire Carmen Ortiz, Steve Heymann, and perhaps Scott Garland.
    • Disbar and bring charges against Ortiz and Heymann for Attorney Misconduct. Also hit them with Involuntary Manslaughter.
    • Sue JSTOR for violations of FOIA requests. Sue them for theft, and perhaps racketeering. Also sue them under the anti trust laws for price fixing.
    • Sue MIT as well, for contributory negligence.
    • Change the terminology. There should be no language anywhere in the laws that equate copying with theft. This crime of "data theft" should be called "data copying".
    • Change the deals, and the laws. No private publisher should have any legal grounds for locking away research paid for by the public.

    If any of this seems over the top, consider how over the top the accusations and threats against Swartz were.

    I'm wondering about Senator Cornyn. Could he actually be in support greater intellectual freedom? It seems 99% of politicians and judges are crusty old fools who blindly swallow publisher propaganda, and their knee jerk reaction to any alleged copyright violation is to believe the accusers and join the pack screaming that it's "theft" and howling for the blood of the accused. A demonstration of this is Ortiz's profound words of wisdom: "Stealing is stealing". But perhaps Cornyn, who sponsored PIPA, is having a change of heart?

  • by Dereck1701 (1922824) on Saturday January 19, 2013 @02:10PM (#42634365)

    " Kerr says that, as the law stands, the charges against Swartz were "pretty much legit," and that the law itself should be the target of the internet community's angst,"

    No, BOTH should be the target of the "internet community's angst" and societies in general. One can't happen without the other, prosecutors continually demand more harsh and less restrictive laws "to catch the bad people". And when it is proven beyond all doubt that they targeted the wrong people with their near unlimited "proprietorial discretion" they demand complete indemnification from criminal/civil responsibility because prosecution of the "bad guys" would be imperiled if they had to worry about their freedom & livelihood. They can't have it both ways, at least not in a free & just society. They can either have extensive powers with severe penalties if they mess up, or they can have very limited powers with limited liability. To do otherwise breeds nothing but corruption & imprisonment of the innocent.

  • by paiute (550198) on Saturday January 19, 2013 @02:34PM (#42634477)
    Cornyn should shut his fat hypocritic yap. It's his kind that wants to make IP abuse a criminal matter where it should be civil. He's in the crowd who would make violation of TOSs a federal crime. Now he is crying crocodile tears that the Justice Department applied laws he rabidly supported?
  • ..and theodp remarks are brilliant and spot on!

    Naturally, one would expect AG Holder, who made his big bucks at Covington & Burling, defending Chiquita (formerly United Fruit) and Coca Cola and the oil companies, for their hiring of assassins to murder labor organizers, protesters and pro-democracy activists in South America and West Africa. And please don't neglect the record of Ortiz:

    http://whowhatwhy.com/2013/01/17/carmen-ortizs-sordid-rap-sheet/ [whowhatwhy.com]
    And please let us never forget the ultimate e
  • I believe, I have to bring to everyone's attention one uncomfortable fact -- a suicide of a person was sufficient to bring important issues to the attention of public and institutions when everything else utterly and completely failed.

    Now, everyone who ever repeated anti-suicide formulas about suiide being inherently cowardly, selfish, pointless, etc. act, is welcome to kiss his dead ass. While it's true that most suicides result in nothing remarkable, so do most lives.

    On a lighter note, Aaron Swartz is now

    • by celle (906675)

      "On a lighter note, Aaron Swartz is now both a hero and an hero [encyclopediadramatica.se]."

              He's also a martyr.

        Remember Aaron!!
        Remember Aaron!!

  • The one check that the founders of the US government gave the people is the power for a jury to refuse a law be upheld. That is the only protection we have against the rule of unjust law. In today's legal climate however, juries are instructed to behave precisely the way a Judge says, and jury findings can be ignored if it's found by the judge to oppose a matter of law.

    Every trial should necessarily put the law on trial as well. We have plenty of law making bodies, but THERE IS NO LAW UNMAKING BODY.

  • "don’t think that this was just two or three prosecutors that were doing something unusual."

    I'm reminded of "If everyone jumped off a bridge...". The prosecutors decision making power based on the facts of the case got short circuited in the name of career building. Somehow I don't think anything good could've come of this anyway. That's besides the opposite ramifications of trying to shut someone up pointing out failures in proper government behavior in a tortuous way.(where's

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