CLBR Seg 1: Matt Neco Returns to Discuss the Aaron Swartz Tragedy

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FIRST SEGMENT:

Matt Neco Returns to Discuss the Aaron Swartz Tragedy

On Friday Aaron Swartz, an internet legend who had not yet reached his 27th birthday, committed suicide as he faced a felony trial over his accessing and downloading 4 million academic articles from JSTOR via MIT’s network.  Matt Neco returns to CLBR to discuss the tragedy and controversy surrounding his prosecution.

Matthew Neco is a California attorney who is and has been general counsel for publishing, media, internet, and software technology companies, including those that help small business owners and operators, and that disrupt the status quo. He was GC for the developer and distributor of Morpheus®, the content agnostic peer-to-peer file sharing software application, which was a party in the MGM / Grokster case.

Matt has worked for several entertainment, media and technology entities, including a music preference matching internet company he co-founded. He focuses and has focused on various aspects of business, technology, the internet, evolving media, the entertainment industry, as well as business litigation, and reorganizations, work-outs, and acquisitions in Bankruptcy Courts.

He has taught Intellectual Property & Information Assets Licensing Law at Pepperdine University School of Law as an adjunct professor.  He is certified as a mediator by the Strauss Institute for Dispute Resolution at the Pepperdine University SOL, and has been a member of the pro bono mediation panel of the U.S. Bankruptcy Court for the Central District of California since 1995.  He was a member of the Executive Committee of the Intellectual Property Section of the State Bar of California, and is the founding and current Chair of its In-House Counsel Interest Group and former Chair and now a Vice-Chair of its Copyright IG.  Matt is also active with the Association of Corporate Counsel.

Swartz’s Achievements

  • Swartz was a member of the RSS-DEV Working Group that co-authored the “RSS 1.0” specification of RSS . . .  AT THE AGE OF 14.
  • He built the website framework web.py and the architecture for the Open Library.
  • Co-founder of the Creative Commons
  • He also built Infogami, a company that merged with Reddit in its early days, through which he became an equal owner of the merged company.
  • M2MF23 of the Harvard University Center for Ethics.
  • He cofounded the online group Demand Progress(known for its campaign against the Stop Online Piracy Act) and later worked with U.S. and international activist groups Rootstrikers and Avaaz.

The Tragedy

Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.

Swartz Family Statement

Aaron dead. World wanderers, we have lost a wise elder. Hackers for right, we are one down. Parents all, we have lost a child. Let us weep.

Tim Berners Lee

That person is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.  For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.  In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.”

Lawrence Lessig, Harvard

There are so many sad things about this story, but the biggest is the most obvious: knowing just how much Aaron had accomplished already in his short life, combined with his drive and determination, we’ll now never know how much more he would have accomplished down the road — and every single one of us will lead less fulfilling lives because of that loss. He was still just a kid… a kid who had already accomplished amazing things.

Mike Masnick, Tech Dirt

The Case

Indictment

An effort to increase public knowledge, with no profit motive, as misguided and rash as it may have been, was rewarded with an intense crackdown, even after the “victim” had stated it was satisfied with the outcome. No matter your view on intellectual property, it should never have come to this

Tim Cushing, Tech Dirt

I don’t see what societal interest Carmen Ortiz think he’s vindicating with the Swartz indictment. According to Demand Progress, JSTOR already settled their claims with him. What more needs to be done here? The “criminal violation” here arises not from any social duty — like, you know, our society’s communal prohibition on murder — but rather from Swartz “exceeding the authorization” imposed by JSTOR on its servers. Prosecuting Swartz criminally makes no more sense than prosecuting banks or telecommunications companies for violating their consumer agreements, and we all know that’s not going to happen any time soon.

Max Kennelly

I think the charges against Swartz were based on a fair reading of the law. None of the charges involved aggressive readings of the law or any apparent prosecutorial overreach. All of the charges were based on established caselaw. Indeed, once the decision to charge the case had been made, the charges brought here were pretty much what any good federal prosecutor would have charged.

Orin Kerr

I know a criminal hack when I see it, and Aaron’s downloading of journal articles from an unlocked closet is not an offense worth 35 years in jail.

Alex Stamos, Cyber Security Expert

The act was harmless—not in the sense of hypothetical damages or the circular logic of deterrence theory (that’s lawyerly logic), but in John Stuart Mill’s sense, meaning that there was no actual physical harm, nor actual economic harm. The leak was found and plugged; JSTOR suffered no actual economic loss. It did not press charges. Like a pie in the face, Swartz’s act was annoying to its victim, but of no lasting consequence.

It’s one thing to stretch the law to stop a criminal syndicate or terrorist organization. It’s quite another when prosecuting a reckless young man. The prosecutors forgot that, as public officials, their job isn’t to try and win at all costs but to use the awesome power of criminal law to protect the public from actual harm. Ortiz has not commented on the case. But, had she been in charge when Jobs and Wozniak were breaking the laws, we might never have had Apple computers. It was at this moment that our legal system and our society utterly failed.

Tim Wu, Columbia Law School

The Aftermath

Congresswoman Zoe Lofgren has drafted legislation to narrow the scope of the Computer Fraud and Abuse Act in response to the tragedy

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