Aaron's Law: Violating a Site's Terms of Service Should Not Land You in Jail

It won't bring him back. But the loss of the Internet activist has prompted a bill in Congress that would protect others from the same kind of prosecutorial abuse.

swartzface.jpg
ThoughtWorks/AP

A week ago, Aaron Swartz -- social activist, geek genius -- took his own life. Facing the choice between a federal prosecutor who insisted that he either accept the label "felon" and go to jail or fight a million-dollar lawsuit against 13 felony indictments, Aaron took the third option, and hanged himself. And with that we all lost an incredible soul, one who had literally spent half of his 26-year-old life doing nothing except working for (at least his conception of) the public good.

Aaron's alleged "crime" was that he used MIT's network to access a database of academic journal articles (JSTOR) and download millions of those articles to his laptop computer. He didn't "hack" the network to secure those downloads: MIT is a famously open network. He didn't crack any special password system to get behind JSTOR's digital walls. He simply figured out how JSTOR was filing the articles that he wanted, and wrote a simple script to quickly gather those articles and then copy them to his machine.

We will never know for sure why Aaron did what he did. Any motives disclosed to his attorneys must remain secret. So the most the world can do is to speculate: What possible reason could Aaron have had for the JSTOR dump? And plenty of speculation there is:

One blog, for example, the famous kottke.org, speculates that Aaron wanted to run an academic analysis on the articles that he had taken. While at Stanford, Swartz had worked with a law student to download all the law review articles in the Westlaw database, to map funders of research with research conclusions. The result of that research was published in the Stanford Law Review, and showed a troubling connection between funders and their conclusions. At the time of Aaron's alleged "crime," he was a fellow at my Center at Harvard. The work of the Center? Studying the corruption of academic research (among other institutions) caused by money.

Democracy Now! has suggested a different motive. It uncovered a speech that Aaron gave at the University of Illinois at Urbana-Champaign in the fall of 2010, in which he may have been urging students to take advantage of the access that they had to sites like JSTOR to give the third world the same access to scholarly material. On this theory, Aaron's aim would have been to liberate JSTOR for the developing world -- a market in which JSTOR was not then flourishing.

The evidence supports both of these possibilities, though not perfectly in either case, and others too. What isn't supported are the accounts the government suggested in their breathless and ignorant press releases and indictment. There's nothing to support the idea that Aaron was simply going to "liberate" JSTOR -- Swartz was not a copyright anarchist, and any effective first-world distribution would easily have been taken down. Even more absurd was the suggestion that Swartz was trying to make money with the scholarly articles he had downloaded. Trust me on this: However much academics love articles from the Harvard Law Review, that love does not translate into money.

So what he actually intended the public cannot know. And if the public cannot know, the government certainly did not know. But that doesn't matter under the law as it stands. All the government had to show to launch its witch hunt against this young activist was that he had violated JSTOR's "terms of service" and taken (as in copied) something worth more than $5,000.

The "terms of service" (TOS) of any website are basically a contract. They constitute an agreement about what you can and can't do, and what the provider can and can't do. Not everything on a website is governed by contract alone: Copyright and privacy law can impose property-like obligations independent of a TOS. But the rules Aaron were said to have violated purported to limit the amount of JSTOR that any user was permitted to download. They were rules of contract. Aaron exceeded those limits, the government charged. He therefore breached the implied contract he had with JSTOR. And therefore, the government insists, he was a felon.

It's that last step that is so odd within the tradition of American law. Contracts are important. Their breach must be remedied. But American law does not typically make the breach of a contract a felony. Instead, contract law typically requires the complaining party to prove that it was actually harmed. No harm, no foul. And in this case, JSTOR -- the only plausible entity "harmed" by Aaron's acts -- pled "no foul." JSTOR did not want Swartz prosecuted. It settled any possible civil claims against Swartz with the simple promise that he return what he had downloaded. Swartz did. JSTOR went away.

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Lawrence Lessig is a contributing writer for The Atlantic, the Roy L. Furman Professor of Law and Leadership at Harvard Law School, director of Harvard's Edmond J. Safra Center for Ethics, and founder of Rootstrikers, an activist network opposed to corruption in government. More

Lessig's books include Republic, Lost: How Money Corrupts Our Congress -- and a Plan to Stop It, One Way Forward: The Outsider's Guide to Fixing the Republicand the recent Le$terland: The Corruption of Congress and How to End It. He serves on the Board of Creative Commons, MapLight, Brave New Film Foundation, The American Academy, Berlin, AXA Research Fund and iCommons.org, and on the advisory board of the Sunlight Foundation. Lessig holds a B.A. in economics and a B.S. in management from the University of Pennsylvania, an M.A. in philosophy from Cambridge, and a J.D. from Yale. Prior to rejoining the Harvard faculty, Lessig was a professor at Stanford Law School, where he founded the school's Center for Internet and Society, and at the University of Chicago. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court.

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