Digital Theft

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works dot com. Hello, everyone, Welcome to tech Stuff. My name is Chris Poulette, and I am an editor at how stuff works dot com. Sitting across from me, as he frequently does, is senior writer Jonathan Strickland. I'm the dandy highwayman who you're too scared to mention. I spend my cash on looking flash and grabbing your attention. Okay, I told giggled when I when I thought of that too. Yeah.

Sometimes when I come up with the quotes, uh that I use at the beginning of podcasts, it's immediately before we start recording, like today, and I started cackling as soon as I thought of which one I wanted to do. Anyway, today we're gonna talk about digital theft, but we're really going to focus on a specific case here, and it's an interesting one. Christie. Want to set this up. Yeah, well, where where does start? I guess we should just start

specifically with the details. Um. There is a I guess it's probably best to call him an activist named Aaron Schwartz Um who was arrested in Boston a few days before we were recording this UM in early August of two thousand eleven, and he's been accused of taking four million UH digital documents essentially from UH from the Massachusetts Instituted Technology m i T and J Store, which is an online digital repository of scholarly journal art. Yes, journal

storage is essentially what JAY Store stands for. Yeah. Um, yeah. Anybody who's listening, who is UH, who is either in college now or you know, recently, probably in the last ten or seven years, probably is familiar with jay Store, especially in the humanities and UM related related things. But um, yeah.

So he's been basically charged with essentially sneaking into a closet on the m i T campus, hooking up a computer with removable drive uh to the network equipment, and downloading millions of documents, and the the federal government has charges out against him. The federal government, the United States federal government alleges that Swortz's intent was to distribute these files in a manner filed distribution distribution matterer usually peer

to peer network like like the Pirate Bay something like that. Right, that that's the allegation, although um, everything I read up till the recording of this podcast suggests that there's not really any actual, uh publicly known evidence to support this. That it's really just an allegation that's based upon Sports's history and the fact that he actually got these four million documents. Here. Here's some interesting things about this case that are a little odd to me, just on the

surface level. So you've got Sports who has uh apparently broken into M I T in order to download these documents, leaving the computer there. Because of course we're talking about millions of files, so this is taking a while to to happen. Uh. He was working over at Harvard. Harvard also has access to j store documents. J Store documents if you don't know, uh, you know, colleges will pay some sort of subscription fee in order to access different

parts of j stores database. Yeah, I can. I can get into that and lots more detail if you want, sure, because that's an important part of this discussion. Actually I mean to really understand this case, and I don't even say that I fully understand it, but you need to get all the details to to really kind of get

a grip on on what this means. Yeah. That that's the funny thing to me about this particular case, because a lot of times people who are are breaking into and stealing electronic files from people, I think of them is going after the big targets, people who basically are UM specifically involved in copyright fights, people like the movie industry or the recording industry, where they're saying, I'm doing this because the industry is repressing, you know, as as

making this this information unavailable to the public. J Store, on the other hand, is a nonprofit J store, as you mentioned, is it's short for a journal storage and it's um. It was actually founded as a way to uh to make journal articles available online, digitized and then uh and then made available to institutions. At one point there were only a handful of journals available and handful

of colleges and universities that subscribe to them. But over time it's it's grown uh amazingly to be honest, Um, the thing is with j store, they do collect fees from all these institutions, partially for equipment, partially to help fund institutions that have a tougher time with the fees um, and they have to negotiate. A big part of that too, is the the licenses that they have to negotiate with publishers because um, you know these uh J store is not um you know, the publisher of a lot of

these documents UM. And not everything of course is is UM is owned by someone. The copyright is is uh only valid for some of the stuff. Some of the other stuff is older and and not in the not

under copyright anymore. So UM. The thing is, though, that the publishers may have different requirements for for being published in J Store, like some some publishers have absolutely no qualms about making a journal article or an issue of a journal available on J Store immediately after it's been published, so it goes to press and then it ends up on the shelf at the library and at the same time you can access it digitally. But others might require

an embargo of six months to a year. UH, so you may you know, they may expect you to go to the uh the library and actually pick it up now. UM. Part of the benefit to UH these databases is that it makes it available more widely, especially for distance learning students. UM. But it also helps mitigate the cost somewhat of subscribing to some of these journals, which can be very very expensive and sometimes in the case of thousands of dollars.

Because you know, these magazine are UH are not like you know, Time or UM, you know, Rolling Stone or something like that, where they're subsidized by advertising. It's that you know, these these are scholarly journals and they have a much smaller UM readership, so they have to charge a lot more to keep them in print. UM, and this using these databases can make it a little easier. It also frees up space on the library shelves, so

that's UM, you know, another benefit to doing that. But UM but yeah, j store Is is essentially though a nonprofit but and makes it available through grant funding from the Melon Foundation and UH and other sources. So I still find it odd that that he would target a UM, that he would target a nonprofit organization that's that's dedicated

to this specific purpose rather than somebody else. That seems like it would be more a more obvious target if you were going after people who were h enforcing copyright right and to to make this even more complicated, J Store. You know, when we're talking about these these fees that that mostly libraries and UH and and universities pay in order to get access to some of these libraries that J store has available, UH, that money is not really

going toward J Store. That money is going to pay off the uh the licensing fees J store has to pay to these publishers in order to get access to these documents in the first place. UH. So you know, you can't really vilify J store too much. They're not it's not like it's a for profit uh corporation. It's it's a non for profit, So it's not you know, they're they're trying to provide a service. So in a

way they're caught in the middle in this. But another complicated issue is that more than half of the documents that that sports was grabbing were in the public domain in the sense that copyright had expired on these these are they were either old enough so that they were no longer under copyright or otherwise they were no longer they were not protected by copyright. They were public domain articles.

So you've got the argument from some people who say, if it's in the public domain, it should be publicly accessible. There should not be a wall between the consumer and the content because it's it's public domain. It's no one owns the copyright to that anymore. Yeah. Yeah, and that's uh, that that too makes sense that he would use that

as a target. Um the flip that. My My counter argument would be, uh that J store probably keeps that behind the wall because they need people to provide funding for hardware and for salaries the people who work with the product. Yes, I do banned costs and costs. There's there's operations. There are real operational costs to operating J store. It's not like, you know, we can easily forget that there are real costs associated with anything digital, right, I

mean it's easy for us to forget. I mean you sit there and say, all right, sure, yeah, there's electricity cost because you gotta pay to power the servers. But then you think, well, then you've got to actually buy the servers. And you don't just buy the servers. You have to maintain the servers and buy backups so that if a server fails, another one immediately goes online and these these needs keep on going and the money there is real money that you have to spend to do that.

So but there also maybe some agreements with the publishers that they're licensing things with. Why that that might be a reason why things are behind the paywall to is not because not because the content itself is under copyright, but because it's part of an overall agreement with an actual publisher saying oh, well, sure we will license this stuff to you, but part of that agreement is that you have to keep all this stuff behind uh walled

garden as well. Now, um, when it comes to stuff in the public domain, we can also make the r even of just because it's in the public domain doesn't mean that you can just waltz up and grab a copy with no consequences. For example, example I saw quoted in a great article was about, um, let's say Shakespeare's works. All right, Well, Shakespeare's works are in the public domain. Yes you know he he did not renew that copyright.

It was very shortsighted of him and so, um, but that doesn't mean that you could walk into a bookstore. I was gonna say borders, but not anymore. So long uh parting is such sweet sorrow. But you could walk into a bookstore. You can't walk into a bookstore, lift up a copy of Shakespeare's works and say this is in public domain and then run out of the store with no fear of being brought up on on shoplifting charges.

That's not the way it works, right. And likewise, you might say, well, there's a copy available at my local public library and I can go read it for free, and that's true. Ye, Well that maybe a copy of your public library may have been lost. Uh no, I'm kidding, um.

But the thing is that that's not free either, because taxpayers are footing the bill for keeping the library open, for building the collection, um, for paying the librarians and the other people who work in the library to be there and make that that available, um, and and for buying a new copy when somebody wears it out or spells grape juice all over it. So I mean there,

you know, I'm not saying that that. Uh. You know, it's necessarily right to keep an item that is in the public domain behind a paywall, but there are reasons why you might charge to make it available because there are are costs associated with it. So I see I see an argument for either side, because I think public domain information should be you know, free and available. But you know they're there are logistical things too, you know.

But now you could also make the argument that let's say that you've got a bunch of material that is no longer protected under copyright and it and you go ahead and you get hold of that, there's nothing that stops you from distributing that content. That you can distribute it as much as you want once you have it, like you may, it might get a little tricky. You might have to make a copy of it in such a way that if someone else has added something to that.

Like let's say again you take a copy of the complete works of Shakespeare and their uh annotations and notes in there, that makes it more complicated. But let's say that you were to buy hand copy every single one of Shakespeare's plays and then you decide to make as many copies of that distribute it to as many people as you want. That's perfectly fine. So there's some people who are asking, well, was Sworts trying to do the

equivalent of that? Was he trying to get hold of material that is in the public domain and thus put it up for people to share as widely as they want, um, because it's in public domain. So therefore there's no there where's the law being broken like you can't if there's no copyright there. See, this is where it's getting complicated. And and to be honest, not all these questions are are even we're not we're not capable of answering them

because we're not lawyers. But more importantly, there's not a lot of law around this kind of issue. A lot of the a lot of the laws that sports has been brought up on our charges that have been brought against him have to do with wire tapping and that sort of thing. Yeah. Yeah, actually I was I was going to uh to go through those really quickly. Here. Um, the charges right now that I've read about UM from the U S attorneys include UM, computer fraud, wire fraud,

obtaining information from a protected computer, and criminal forfeiture. And he does face up to thirty five years in prison and three years of supervised release if he is convicted. UM. So yeah, I mean, this is this is no laughing matter. But but these issues are why it's well, I think it's why the the copyright holders, the people like the R I a A and the m p A A

are so afraid because it's not clear. I think, you know, honestly, I think they probably would enjoy being able to make their stuff available to people in different formats, but they're scared that people can just make one copy and run off with it and nobody gets paid. Uh, and that you know, it's a somewhat legitimate concern, but but in this case, you know, it's different. But I do think that's a lot of why. I mean, the laws are vague.

They you know, these technologies haven't been around for a long time, and you know, governments are are not exactly known for their speedy uh reaction time on trying to resolve these issues, and especially now the new technologies are available uh and are changing the way we do business. Um, you know, it's it's just muddying the water that that much further. And so this it's going to be interesting to see how this case comes out, because you know, it may set precedence for how we handle a lot

of these copyright issues online. Sure, and really a lot of the problems that come up around this center around the fact that we're talking about digital products, which are are they lack something that real products quote unquote real or analog products have ye scarcity. Yeah, that's true, there's no there's no such thing as scarcity in a digital world.

That's true, and there there is. Uh. There's also a lack of substance to them as well, so they are like a substance and most of the things I buy. Uh no, um, there is no there's no physical manifestation of form factor there the document which adds to of course adds to the effect at the effect that you can make as many copies of this as you want to and distribute it as in a matter of seconds

around the world. Um. So it just it makes it very difficult to create laws that that both protect the the person who created it and the consumer and and the consumer both and give them both rights, you know, the producer to get paid and the the other person to access that content on a fair basis. So for those of you listening who who don't have a grip on the scarcity issue, I'm sure most of you do.

But just in case, Uh, if we're talking about physical products, let's say that that Chris, is, what do you want to have? Let's just pick a physical thing that you want to to have as a product that you are offering. I was gonna assign one to you, but I'm going to give you the option of choosing one. Well, are we talking about something that I would do now? No, No, anything like anything pine in the sky. If you want to say unicorns, you can say unicorns. No, I want

to say unicorns. Okay, So Chris is offering he's got ten unicorns for sale, and I really want one of those unicorns, but I don't want to, you know, pay for one, because I'm a nefarious ne'er do well, as quoted at the beginning of the show and so pretty accurate, I decided that I am going to take one of those unicorns, and I take one of the unicorns. Now Chris has nine unicorns. So Chris has nine unicorns, and he's out one unicorn with no no amount of money

that he was going to ask for said unicorn. So I have stolen it. Do you know how hard it is to breed unicorns these days? I imagine it's going to be very difficult because I hardly see them anywhere, but I see the meat on over at Think Geek. They sell the canned unicorn meat there. So um, anyway, so I've I've decided to take a tasty unicorn, and I did not pay for it, so I have stolen it. And that it's it's easy to see that, right, because there's evidence there. Chris had ten unicorns. Now he has

nine unicorns. He has no extra money. This is this is something that is easy for us to make laws about. I mean, granted, not about unicorns, but you know, stealing in general. That's easy to make laws that cover this sort of thing because it's it's a concrete example that I have taken something from someone else without giving them what they were asking. And so easy to see, yeah, because you can actually see it. It's in his backyard. Yeah. And and and we're talking like the these are this

is an ancient concept. I mean, we have every single major civilization that ever exists and had some sort of law protecting people against theft. And and that goes back to the very founding of the United States. Of course, Uh, you know, we're not the only people in the world to have copyright. Copy right actually predated the formation of the United States by I would guess I can't remember the last time I've read this, but I think about two or three centuries maybe somewhere in there. I mean,

not not along, not thousands of years, um. But in the Constitution, Article one, section eight, clause eight um, the Congress shall have power and it goes into all these different powers to promote the progress of science and useful arts by securing, for limited times to authors and inventors the exclusive right to their respective writings and discoveries. That's really vague, but it assigned a basic copyright. It gave you the opportunity to make something and get something for it.

And this is where it got gets a little more complicated because now we're talking about ideas, and ideas are not like unicorns. Now they're not. I wish I'd pick something different. Now. The ideas are not like physical product products that actually have a true like there there's a physical representation of them, and they are not you know, you can't just clone a physical product over and over

and over again at no cost. Well, actually, you know what my original choice, until you said unicorns was a Guttenberg bible. They're very very few. Well now there are very very few of them, right, and we also yeah, there you go. Okay, so so you would not be able to produce a new Gutenberg Bible, which not not an actual burg Bible would really freak me out. Man, I'm not doing well with this. It's okay, okay, but I mean, yeah, something, Well, a Bible in this case

is older than Yeah. Say, he had a rare, rare book that was published and there maybe twenty of them left in the world, and it's the first edition of this book that was printed a hundred and fifty two hundred years ago or something like that. So at any rate, the theft of that is obvious. Now let's talk about a digital version of that. Now, a digital version of that same book. Uh, you don't steal the original, you make a copy. So the original is still exactly where

it was. So Chris still has If you had the twenty unicorns, ten unicorns, that's what it was, right. Let's say now you've got ten virtual unicorns, ten files that are called Unicorn one, Unicorn two, Unicorn three, and I have gone and I'm like, I want one of those unicorns, those digital unicorns, and I go and I make a copy of Unicorn one. Well, from Chris's perspective, he hasn't

lost anything physically. He still has those ten files. Yes, right, so so it's different from the the the tride additional route of of theft defining what theft is and being able to punish theft. Uh. Now it's still I have managed to take something from Chris without giving him anything in return. But it you know, you can't defining the punishment, defining the crime. You can't use the old model to really fit the new crime, right, I mean, it just

it doesn't It doesn't encompass the same thing. So that's where we're at right now. We're at this this point in our history where we have not yet truly defined what these crimes are, what they encompass, how they should be punished. We keep trying to use these old models that don't really fit the new the new model of of the way things work. That's where we're starting to fall into a lot of these issues. And people like Sworts have been putting this out for years. Um and

he's not the only one. Lawrence Lessig, of course, Uh, the professor at Harvard has been talking about issues with intellectual property and copyright laws and copyright law reform for years. And in fact, Lessig and and Sorts have a history of working together on different projects like the Creative Commons project, and um, you know, these are really smart people who are pointing out we can't continue to try and enforce new ways of thinking into old models because it's just

not gonna work. We have to come up with a new way of of dealing with these these approaches. Um, because that's the way the world's going. It doesn't matter if you like it or if you don't like it, if you think things should be if they if you think the information should be free, or if you think it shouldn't be free. And by free, we're talking about freely accessible, not necessarily uh you know, not that there's no cost associated with it. Like we say information wants

to be free. Do you mean that information wants to be out there in the world or do you mean information wants to cost no money? I think most people would argue the first rather than the second. So in other words, as long as a company is able to make stuff available uh two consumers in an easy way, an easy, timely, inexpensive way, then consumers are pretty much happy to go and flock to it. If they are not willing to do that, then consumers will then turn

to piracy. Yes, so, um, there was an interesting discussion I read about how this this balance between free and paid and and this balance between intellectual property and and

uh public domain. And part of the argument was going that we have companies that will promote something, um, let's say it's a video game, So they'll pour a whole bunch of money into promotion in months and months and months of promotion, which ratchets up the anticipation of the people who are the customers, right they to play this game. And as that anticipation ratchets up and up and up and the game has yet to come out, those people are more likely to turn towards privacy because they have

this anticipation. They want to satisfy, They want to have the experience of playing this game, but they have not They don't have a legitimate pathway to get there, so they take the illegitimate pathway. So in other words, it's not that it's the fault necessarily of the content creator, but they are somewhat enabling this culture of piracy. So in order to take that out, you need to think think of a new way of approaching your your products.

Perhaps you don't promote your product months and months and months ahead of time and build up this anticipation. Perhaps you create ah an early build and you charge a very small amount for it, you make it easily available, and you at least are able to profit on that anticipation early on. The solutions have not all presented themselves. But the point is that taking the old way of doing things is just not gonna work because the world is changing. So whether you want information to be free

or not is not the point. Information is going to be free. Well, UM, you know I should point out I feel compelled to point out that that sports is actually available or is also affiliated with a nonprofit himself. UM to achieve to achieve what he you know sees is uh some some attempts to make information more freely available. UM.

And this organization is called Demand Progress. UM. They basically have said that they are interested in, uh finding ways to change public policy that they see is uh choking the internet, making the internet uh difficult to use, I guess, or difficult to get information that you need on the Internet.

And let's say that and UH. One of those those issues, according to the Senate article I read, was the protect ip Act, which in the United States, UM, it is basically designed to help block access to UM websites that are suspected of piracy. Um, and so it international websites to yeah, not just the United States, but internationally actually,

I think, I think almost exclusively internationally. But it's which is kind of interesting because you're like, how do you how do you then, uh, enforce something that is on international websites, Although the argument could be made you do it by limiting what where sites from within the US

can link out to that, including things like search engines. Now, um, I uh, you know, the the FBI has actually also investigated him previously to um for or at least according to Boing Boing Again this was quoted in that Senate article that I read, But they basically have been looking at him for trying to get US court records from the Public Access to Court Electronic Records Database. Um. This

was back in two thousand and nine. So yeah, I mean they probably had their eye on him, and it's it made play a mitigating factor in what's going on. I mean, if they believe that he has a threat, they will probably make sure that they they send him a message. Yeah. Yeah, there. I did read that that one potential motive for the federal government was that, you know, they were essentially trying to to um. They they were still angry over the two thousand and eight uh Pacer issue.

UM that was the whole well Swards ended up participating in a call for downloading documents from from a government database of court records, which you were talking about their Chris and um and he did it really really well and uh it was because there was this brief moment where these documents were free, when normally they would cost

about eight cents per page. And so Swartz ended up downloading I think like um, well, around twenty million of them, So twenty million documents that were free at that point that normally cost eight since per page. He got hold of the twenty million of those. The government got a little upset about that, but Swarts did not break any laws. He was following the law. The loss said that at that point they were free and that anyone could download

as many as they wanted. It's sort of like if you open up a buffet restaurant and someone comes in and sits down and they start going to the buffet table, and they go to the buffet table like fifteen twenty times, and you think, well, you know, you should really go and think, well, I haven't had all I can eat yet it says all you can eat, and I have not eaten my film. You have been here four hours. Um well, I also feel compelled to to point out that, um,

that my note program just crashed. Um. But but sports is not the only person to have to have acted, um, you know on these principles. Um. Sure. I had been reading too about Gregory Maxwell in an article on ours Technica, who posted thirty two gigabytes with eighteen thousand, five hundred ninety two scientific articles to bit towarrent and basically said that uh, sports as arrest Uh was what UH decided or what he used it as inspiration for for posting this.

And he said, um, there's a quote from him. All too often, journals, galleries and museums are becoming not disseminators of knowledge, as their lofty mission statements suggest, but censors of knowledge, because censoring is the one thing they do better than the Internet does. Um. So yeah, um, you know it is possible too that that other people will will act on uh on similar principles and decide to do that themselves. Um. So that they're they're this is

definitely something that's that's not going to go away. No, And this is this is a very as we've said, this is a very complicated issue. You've got a lot of different parties involved here. You've got the actual people who are creating the content, You've got the people curating the content, you've got the consumers of the content. Um, you've got the government in there. I mean, the this is one of those things that's going to take some

real legislation to kind of address. And even then, you know, you know that at least one of the parties is not going to be very happy about whatever the outcome is. And so it'll be interesting to see how this story develops as it moves on. The you know, it's it's again it ties into things like we've talked about the ethics of piracy before and whether piracy is ethical or not.

You can argue that, well, if you want to be able to get uh, content that's in the public domain out so that people can actually see it, um, is there anything wrong with that? And you know, that's that's a tough question to answer, you know, I mean, you could argue that maybe for anything that's in public domain, there should be at least an easy way to access it, If not Um, you know, if not like just distributed everywhere wherever it does reside, it should be pretty easy

to get to. But we just haven't created those systems yet and in the process it's it's pretty ugly. Well, that about wraps up this discussion on lots of interesting topics and an intellectual property digital theft. You know, where are we going from here? And honestly, we just don't know until more time has passed. Yeah, it's it's it's funny. We we often have a solution or something or an idea of how we would would proceed with this, but

this is this is thorny. Yeah, that's a complicated issue and it's uh and you know what, it will probably be a really tumultuous uh issue you for a while and we won't really we'll get to a resolution, but I bet it's going to be a rocky road, so rocky road. On note, we're gonna wrap this up. If you guys have any suggestions you would like us to tackle in a future episode of tech Stuff, let us know. You can find us on Facebook and Twitter are handled.

There is tech Stuff hs W where you can send us an email on that addresses tech Stuff at how stuff works dot com and Chris and I will talk to you again really soon. Be sure to check out our new video podcast, Stuff from the Future. Join how Stuffwork staff as we explore the most promising and perplexing possibilities of tomorrow. The house stuff Works iPhone app has arrived. Download it today on iTunes, brought to you by the reinvented two thousand twelve camera. It's ready, are you