JSTOR an Entitlement For US DoJ's Ortiz & Holder 287
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.
The law is a ass. (Score:5, Insightful)
While he may have had issues, it's dangerous to characterize different opinions as mentally ill.
In addition.... (Score:5, Insightful)
Blame Both (Score:4, Insightful)
Re:The law is a ass. (Score:4, Insightful)
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"?
Re:In addition.... (Score:5, Insightful)
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:The law is a ass. (Score:5, Insightful)
with no chance for a second opinion, no appeals, no lawyers, no burder of proof on anything.
Re:Perk of an elite education (Score:5, Insightful)
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.
Not interested in excuses (Score:3, Insightful)
Hang 'em all.
35-50 years (Score:4, Insightful)
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.
Re:In addition.... (Score:3, Insightful)
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 Germany, conformity and social acceptance carried a higher responsiblity than avoiding terrible authoriarian politics.
We'vve spent the last 30 years trying to smash our own culture of independence and free thinking, critical for protecting ourselves against things like this by ensuring there is always someone to stick up to unjust authority.
Carmen Ortiz, Psychologist? (Score:2, Insightful)
I guess she should know a thing or two about mental illness since she is, herself, a sociopath.
A bit disingenuous (Score:5, Insightful)
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.
Oritz "terribly upset" (about her career) (Score:5, Insightful)
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.
Re:Oritz "terribly upset" (about her career) (Score:1, Insightful)
Carmen Oritz routinely destroys other people lives in order to advance her career without any signs of conscience.
Also known as "prosecuting people". And to think, all those poor people did was break the law.
Re:... for which they paid heavily (Score:5, Insightful)
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.
Re:The law is a ass. (Score:5, Insightful)
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)
Re:Oritz "terribly upset" (about her career) (Score:4, Insightful)
Yes. Because we all know that everyone is presumed guilty and everyone that is ever noticed by the state deserves to be destroyed.
There is some irony that this is playing out in Boston.
Re:Blame Both (Score:4, Insightful)
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".
Re:... for which they paid heavily (Score:4, Insightful)
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.
Prosecutorial Discretion (Score:4, Insightful)
Re:... for which they paid heavily (Score:5, Insightful)
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.
Following Orders (Score:5, Insightful)
"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.
next steps? Sue Ortiz, JSTOR, and MIT. (Score:5, Insightful)
What should happen next?
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?
Re:The law is a ass. (Score:5, Insightful)
... 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.
Can't have it both ways. (Score:5, Insightful)
" 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.
Re:The law is a ass. (Score:1, Insightful)
"That's nothing more than cultural bias."
Irrelevant. That view is prevalent in Swartz's culture.
"This was a kid that was facing having is entire life destroyed apart by the government."
Six months in jail does not destroy a life, particularly where Swartz's livelihood would likely not have been impacted.
I'm surprised Cornyl doesn't autoignite (Score:4, Insightful)
Re:In addition.... (Score:5, Insightful)
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)
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.)
Re:Oritz "terribly upset" (about her career) (Score:4, Insightful)
How fucking insightful for you to describe the status quo of legal recourse available to the accused. Particularly in a discussion about the status quo of "due process" being inexcusably distinct from anything that resembles justice.
Maybe you should familiarize yourself with the "reality", where stereotyping disadvantaged minorities is obscured and dressed up as a scientific process using "criminal justice education" to rationalize cognitive biases & prejudice. The "reality" where law enforcement officers regularly collude with each other in manufacturing evidence, covering for each other's unprofessional behavior, and suppressing exculpatory facts.
The "reality" where the role of prosecutor is represented almost exclusively by lawyers with political ambitions, more concerned with making a name for themselves as being "tough on crime" than on ensuring that the outcome of the process is just. The "reality" where prosecutor's office's have a back log of drug offenders that undermine their ability to give any single case their full attention, and as a result they simply sandbag every defendant during the grand jury arraignment with as big of a laundry list of charges as they think they can get away with, without being accused of prosecutorial misconduct. The "reality" where any rational defendant has by this point been completely disillusioned with any impression they had about receiving a fair trial, and is now faced with the prospect of taking a plea bargain for 1/10 of what they are threatened with, or facing down against a gang of lying sociopaths in uniform on the witness stand corroborating each other's stories.
http://youtu.be/O5eOknaXgYU
http://www.stopresisting.net/
The "reality" where "evidence" is rarely ever critically evaluated by anyone other than the prosecutor & public defender when negotiating a plea bargain deal. The same "evidence" which is usually more representative of law enforcement confirmation bias than of innocence or guilt. The same "evidence" which is usually based on un-sound assumptions and dubious conclusions. The same "evidence" which is frequently composed of "expert witnesses" of dubious credibility, and eye witnesses, the memory of whom is known to be unreliable and easily discredited?
http://www.ncids.com/forensic/fingerprints/fingerprints.shtml
http://www.winnipegfreepress.com/opinion/westview/Hair-and-fibre-evidence-further-discredited-in-the-US--162726896.html
http://www.chicagotribune.com/news/watchdog/chi-010114roscetti,0,5511992.story
http://en.wikipedia.org/wiki/Comparative_bullet-lead_analysis
http://www.propublica.org/article/no-forensic-background-no-problem
http://en.wikipedia.org/wiki/Salem_witch_trials
The "reality" where where a "judge" is only involved in a small minority of cases except to rubber stamp a plea bargain and preemptively close the door on appeals by getting the accused to repeat the magic words & nod their heads? The "reality" where a "jury" is almost never involved at all, and is only allowed to be seated after being purged of critical thinkers. The "reality" where a jury trial is a popularity contest which allows for wealthy criminals to walk, and poor looking defendants to be used as punching bags for the jurors only frustration with Law Enforcement disfunction?
The "reality" where the "defense" available to the rich can intimidate a prosecutor's office in to a slap on the wrist, while the public defenders available to the poor provide the same quality of legal services as HMO's provide medical service?
"Accused" might as well be a synonym for "poor and fallen out of favor with the local political machine". The "law" has become nothing more than a crack in the foundation of "unalienable rights" which has been progressively wedged and split open by the war on drugs and war on terror, leaving nothing behind except a base and contemptible political power structure.
That's the "reality" but don't let that get in the way of your pithy sarcasm.
Re:The law is a ass. (Score:4, Insightful)
"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:The law is a ass. (Score:2, Insightful)
"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.
Re:The law is a ass. (Score:4, Insightful)
"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, Insightful)
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.