January 22, 2013

Why publishing should be worried about the Aaron Swartz case


Aaron Swartz

The tragic suicide of free information activist and Reddit co-founder Aaron Swartz shocked the tech community last week. While the subsequent backlash and political maneuvering may seem unrelated to publishing, I would say that they are not.

Rather, this is a depressing example of the inflexible digital culture that is forming around publishing, without our input, and vastly different from the rosy-hued digital publishing world we dream is coming — the future world where we can happily sell ebooks for job-saving prices to cheerful book buyers.

Swartz was facing thirty-five years in jail after being charged with wire fraud, computer fraud and other crimes for allegedly accessing and downloading journal articles from JSTOR, an online academic database — actions we might think are fairly different from those we take each day. The political response to Swartz’s death, however, shows us that there is only a minimum of space between the digital world we inhabit, and the one that he did.

Representative Zoe Lofgren, a California Democrat, has proposed “Aaron’s law”, a draft bill to change the Computer Fraud and Abuse Act. As Karen McVeigh reports in The Guardian, Lofgren’s bill proposes that violating “terms of service” agreements fall under the jurisdiction of civil courts rather than being prosecuted as feloniesIn other words, as the language currently stands, violating a terms of service agreement — what we all agree to by clicking “accept” on the fine print we never read on our Kindle, Kobo, iPad — is a felony.

Lofgren said,

“We should prevent what happened to Aaron from happening to other Internet users, the government was able to bring such disproportionate charges against Aaron because of the broad scope of the Computer Fraud and Abuse Act (CFAA) and the wire fraud statute. It looks like the government used the vague wording of those laws to claim that violating an online service’s user agreement or terms of service is a violation of the CFAA and the wire fraud statute.”

You may think that breaking a terms of service agreement should be a felony, but even so, if you work in publishing you must recognize that your customers are potential criminals each time they use their Kindle. You may even support this possible punishment, but you must acknowledge that the publishing industry has been effectively sidelined and has had little to say in the creation of these laws.

Although we who are in the business of making books are meant to be part of what is called the “content industry”, important decisions are being made without our contribution in areas where we should and are obligated to have a say. Overwhelmingly, we let Hollywood and the recording industry — whose business models and modes of production are vastly different from our own — dictate draconian legal policy to our government, policy that affects us and our customers directly.

Publishers have always been among the “gatekeepers” of knowledge, and I’m afraid that by failing to take a position alongside the activists, hackers and techies who support Aaron’s Law and stand against SOPA or other examples of legal overreach, we may find the door to digital innovation closed on our (snail’s pace) arrival.

At the very least, publishing should be concerned that copyright law and terms of service agreements have criminalized our readers, and are one reason why Radley Balko of the Huffington Post can write,

“The civil libertarian and defense attorney Harvey Silverglate has argued that most Americans now unknowingly now commit about three felonies per day.”


Ariel Bogle is a publicist at Melville House.