Aaron’s Army fights the Trans-Pacific Partnership



This article is by Matthew Rimmer, ARC Future Fellow and Associate Professor in Intellectual Property at Australian National University. It first appeared on The Conversation and is replicated here with permission.

analysis In light of the death of internet activist Aaron Swartz, there is a need to reconsider intellectual property enforcement standards in the Trans-Pacific Partnership.

The 16th round of the Trans-Pacific Partnership negotiations are taking place in Singapore until March 13. There have been concerns that the Intellectual Property Chapter would “ratchet up IP enforcement at the expense of digital rights”. Maira Sutton of the Electronic Frontier Foundation fears that “the Trans-Pacific Partnership could turn Internet Service Providers into copyright cops, prompt ever-higher criminal and civil penalties for sharing content, and expand protections for Digital Rights Management”.

The case of Aaron Swartz highlights the need for a reconsideration of punitive and excessive intellectual property enforcement provisions in trade agreements.

An Elegy for Aaron Swartz
An advocate for open access to publicly-funded works, Swartz lamented that “the world’s entire scientific and cultural heritage, published over centuries in books and journals, is increasingly being digitized and locked up by a handful of private corporations”.

After downloading “protected” articles from the academic website JSTOR at the Massachusetts Institute of Technology (MIT), Swartz was indicted in 2011 by Federal prosecutors on 13 charges, including computer fraud and wire fraud. The United States Attorney Carmen M. Ortiz argued: “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars.” Swartz faced lengthy imprisonment, monetary fines, as well as forfeiture and restitution. Swartz took his own life in January this year.

The tragic case of Aaron Swartz has led to debate on the state of intellectual property law and information technology law – especially as he had campaigned against the Stop Online Piracy Act. In a powerful speech at Harvard Law School last week, Lawrence Lessig considered the case of Aaron Swartz, and highlighted the need for law reform in a number of areas:

Lessig applauded the bipartisan efforts by Democrat Representative Zoe Lofgren and Republican Representative Darrell Issa to reform the Computer Fraud and Abuse Act 1984 (US) with Aaron’s Law. He said there was need to reform copyright laws – such as the Sonny Bono Copyright Term Extension Act 1998 (US), as well as other absurd copyright legislation. Lessig also emphasised that there was a need to resist legislative efforts that sought to promote paywall protected gardens of educational and scientific content and restrict or restrain open access policies.

There has been also discussion of Aaron Swartz in the context of social disobedience. Citing the example of Thoreau, United States Senator Ron Wyden reflected on the case of Aaron Swartz, “Aaron was a hacker. He hacked to promote innovation through openness. Where Aaron saw injustice, he hacked for its remedy. Aaron Swartz hacked Washington. A poorly written law called him a criminal. Common sense and conscience knows better.”

There has been a Congressional investigation into the role of the prosecutors in the Aaron Swartz case. There has been much debate about the role of MIT in the controversy. The educational institution’s hard-won reputation for open teaching and open innovation has been somewhat tarnished by its involvement in the prosecution of Aaron Swartz. MIT has commissioned an independent investigation into the matter.

The case of Aaron Swartz is certainly not limited in its significance to the United States. There has been a parallel debate over copyright law and open access in Australia – taking place both in copyright disputes, and policy debates.

Aaron’s Army Liberates Bob the Builder
As an elegy for Aaron Swartz, Carl Malamud gave a significant speech, a call-to-arms, called Aaron’s Army.

He commented: “Do not think for a moment that Aaron’s work on JSTOR was the random act of a lone hacker, some kind of crazy, spur-of-the-moment bulk download. “Sequestering knowledge behind pay walls — making scientific journals only available to a few kids fortunate enough to be at fancy universities and charging $20 an article for the remaining 99% of us — was a festering wound.”

“Aaron was part of an army of citizens that believes democracy only works when the citizenry are informed, when we know about our rights — and our obligations”.

Public Resource.org has sought to make public documents available online in the United States. In February 2012, the Electronic Frontier Foundation defended Public Resource.org against claims that an online post of a 1985 federal standard on air-duct leakage infringed copyright. Discussing the case, Intellectual Property Director Corynne McSherry said: “We’re asking the judge today to let Public Resource continue its important work in increasing the public’s access to the laws and regulations that govern us.”

Aaron’s Army has also been busy in Australia. In December last year, Public Resource.org posted the Australian National Construction Code, along with other public safety standards incorporated into law by nations around the world.

On 8 February, the Australian government responded, with a copyright letter. The Australian Building Codes Board responded that it was the owner of the copyright in the work, and had not provided permission for the work to be reproduced. The Board warned, “If you do not cease and desist from using our work, we may pursue action under the [Copyright] Act.”

On 10 February, Public Resource responded, declining to remove the National Construction Code. Public Resource commented: “We lawfully purchased the National Construction Code, and we have made it available on a noncommercial basis, because it is the right of all people to know and speak the laws that govern them.”

The conflict questions the efficacy of copyright exceptions, particularly the adequacy of “fair dealing”. The altercation addresses the role of the Commonwealth government in making publicly-funded documents, data, and knowledge available in open accessible formats. Given the controversy over the Aaron Swartz case, it is surprising that the Commonwealth has entered into such a conflict over copyright law and public works.

Aaron Swartz and Australian Law Reform
The dispute raises important considerations in the debate over copyright law reform in Australia. In the Australian Parliament, Senator Scott Ludlam paid tribute to Aaron Swartz:

Ludlam stressed: “In this tragic case we see an outdated copyright legal regime in the United States that has long ceased being fit for its purpose that is presently criminalising a whole generation of internet users…Certainly data, if it is being created by governments at taxpayers’ expense, should be in the public domain.”

The Australian Law Reform Commission should contemplate such matters in its inquiry into Copyright and the Digital Economy. The actions of Aaron’s Army raises important questions about copyright law, and access to education, science, knowledge, government information.

The dispute over Aaron Swartz and the Australian controversy over Public Resource has raised larger questions about standards in respect of international trade agreements.
The Trans-Pacific Partnership has been controversial. A leaked draft of the Intellectual Property Chapter has highlighted that an arsenal of intellectual property enforcement mechanisms are under negotiation. There has been much concern about the expansion of intellectual property rights and remedies – and the impact that they will have on access to knowledge, freedom of speech, and rule of law.

The economist and journalist Peter Martin observed: “The US is pushing for even more in negotiations under way over the Trans-Pacific Partnership trade agreement. We should say no.”

The case of Aaron Swartz should make us reconsider the inclusion of punitive intellectual property measures in both national laws, and international agreements, such as the Trans-Pacific Partnership.

Dr Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA), and a member of the ANU Climate Change Institute. Dr Matthew Rimmer receives funding as an Australian Research Council Future Fellow working on "Intellectual Property and Climate Change: Inventing Clean Technologies" and a chief investigator in an Australian Research Council Discovery Project, “Promoting Plant Innovation in Australia”.

This article was originally published at The Conversation. Read the original article. Image credit: Daniel J. Sieradski, Creative Commons

The Conversation


  1. This is one area where copy right and IP legislation really need reform. Many a counties technological advancement was built on the back of IP infringement including the US. It was this IP infringement that allowed many developments and growth of their economy. Now the major export of the US is IP law, but what do you expect from a country who hails as one of their greatest inventors the guy responsible for the industrial research lab and patent trolling. I think this article sums up every wrong with IP law http://www.smh.com.au/national/health/landmark-patent-ruling-over-breast-cancer-gene-brca1-20130215-2egsq.html

  2. I’ve been following the Aaron Swartz saga on Ars Technica, and the US prosecutor’s role in his death has been chilling to say the least.

    It is important to note that US criminal courts appear to operate largely by plea bargain – either you plead guilty and get a “reduced” sentence, or you take your chance with a jury. In this case the charges Aaron was facing carried a maximum of somewhere around 35-50 years in jail (depending on who you ask, and what day of the week). The prosecutor was prepared to deal, but insisted on about six months’ jail time. Aaron did not feel that he had done anything deserving of jail – but was stuck between six months and possibly a lifetime of it.

    The fact of his suicide is in part an indictment of that system, but also of the laws he was accused of breaking. He was trying to “liberate” scientific records that had been funded by the US taxpayer but were stored electronically by a private entity. The idea of paying to retrieve something that had already been paid for was anathema, and so he tried to retrieve a large proportion of these academic documents. For this he was charged with wire fraud and a number of breaches of the US Computer Fraud and Abuse Act.

    Some people have suggested that he should have just pled guilty, but why plead guilty to charges when you don’t feel that you have done anything wrong? Others have argued that “it’s only six months, just suck it up – you don’t need to kill yourself over that”. Except that he was suffering from severe depression, and “only six months” is still enough to ruin your life. A criminal record stays with you.

    The reality is that we are increasingly signing away the public’s right to information. Whether this be through “freedom of information” laws that can be rendered meaningless, or copyright of death plus 75 years (the Sonny Bono law, which in fact was in large part created for Disney), or patent law that allows private companies to “own” DNA strings, the public is the loser.

    The Trans-Pacific Partnership is another way of reducing individual rights by stealth, following on from John Howard’s pandering to the US and the resulting “free trade agreement” which gave more than it gained. The idea that legislative instruments (such as the building code) are in private hands is another ridiculous concept that reduces the rights of all Australians.

    As a postscript to the Aaron Swartz story, shortly before his death the company in charge of the academic journals he accessed (JSTOR) announced that it would “make more than 4.5 million articles available to the public for free” (Wikipedia).

    There is a strong argument against the need for copyright, patent and trademark protection. It is well worth reading Against Intellectual Monopoly, available at http://levine.sscnet.ucla.edu/general/intellectual/against.htm (yes, available for free).

    • I’ve been following it on Ars as well (and been flamed plenty of times for my comments re: the potential penalty size), and like you am chilled as to what the prosecutors have been able to get away with.

      The only good thing I can see having come out of this is that its raised the issue in the eyes of the general public, and the plea bargain approach is being investigated and hopefully will be railroaded out of the system.

      The cost of this is obviously way too high, but at least his death hasnt been a complete waste of what was a short but brilliant life.

      Even in death though, Aaron Swartz is able to change the world.

      As for the copyright argument, this is an article I constantly refer to for people to consider when thinking of the pro’s and con’s.


      Well worth the read.

  3. The sum of our knowledge is being digitized and then we have been invited to their good ol’ book burning. I think we all know what that leads to, as history has shown us many times before.
    The USA needs to really go back over a lot of the Laws it is trying to enforce everyone to comply with. They have not been written by the Representatives of the people, but written by Vested Interests and then inserted into Law by their paid Representatives, which are really supposed to be the Citizen’s. It is known as the “Double Agent”. They used to be put on trial and then executed for this sort of behaviour.
    Seems anything is allowed these days, if you can buy it.

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