U.S. Attorney Carmen Ortiz Issues Statement on Aaron Swartz Case

The system is so horribly compromised in the US it's hard to see how it can be meaningfully fixed. What a mess.

"We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks."

Now here's the funny thing: The first two arguably aren't illegal or infringing. If something is out of copyright then you can copy it. If you interpret buying a secret database as actually buying the distribution rights to it, neither is that. And if you read it in that context, you can imagine circumstances in which the same could be done to journals in specific circumstances, e.g. as a call for academics or their universities to retain their copyright so that they could do so with authorization, or with the subset of journals that charge for access but still allow liberal redistribution by those who have paid, etc. On the other hand, he's talking about civil disobedience, which implies lawbreaking. It's a conflicted piece.

So you have that, and then you have the fact that he was known to do work on text processing that may require a large corpus of articles for a database, which provides a rational alternative justification for downloading the articles other than to post them to file sharing networks -- or perhaps he intended to do that and also post that subset of the articles downloaded which could legally be posted, either because they're in the public domain or were appropriately licensed.

The point is we don't know, and the prosecution has the burden to prove it beyond a reasonable doubt. So even if you think it's more likely than not that he would have posted them all to Pirate Bay, do you think so beyond a reasonable doubt? Because if I was on the jury, to me, the above doesn't feel like beyond a reasonable doubt.

This is assuming that his intent was actually civil disobedience -- what if he didn't think what he was doing was even illegal? His lawyers apparently didn't. And he wasn't even charged with copyright infringement, which is ostensibly the law he would have opposed.

But having the involved US attorney then basically lie about it all in a very public statement is something that I find particularly offensive."

-- Linus Torvalds, https://plus.google.com/102150693225130002912/posts/ggzfzKyr...

...because the penalties are so high. That's the actual reason. Because when the maximum penalty after a trial is a 30 day misdemeanor, you hire a lawyer and pay them two months of your salary and you make your case, because that's about the point past where spending more money to defend the case is no longer worth it against the possibility of losing.

But when the maximum penalty is a 30 year felony, or even a 10 year felony, you spend every dime you have, because the penalties are that high. And then, because criminals are so consistently charged with enormous penalties like that, which makes them consistently go all out on their defenses, the prosecutors go to Congress and say "we don't have enough resources to fight these people who have these high priced defense attorneys" and they get multimillion dollar budgets for individual cases.

Which brings on the arms race. So now you're not just spending every dime you have, you're spending every dime your parents have, every dime your friends have to prove that you didn't do it, every cent you can borrow from a bank or a loan shark, because the alternative is even worse. And the more defendants spend, the more prosecutors get to outspend them, because "we can't have criminals with more resources than prosecutors."

Scale back the stakes and you scale back the resources needed to fight over them.