This is a personal opinion by former Students for Free Culture board member, Kevin Driscoll.

Two days ago, Aaron Swartz was arrested on charges related to an on-going effort to download millions of academic articles from JSTOR. The story, as reported, goes something like this: Aaron joined the MIT network as a guest and started scraping articles using a custom script. Shortly, JSTOR detected the automated requests and tried to block Aaron’s laptop. He responded by spoofing his MAC address so that the network would assign his laptop a new IP address. This cat-and-mouse game escalated over the course of several months – including a period of time during which JSTOR may have blocked the entire MIT network – and ended up with Aaron sneaking into an off-limits computer closet to hide a laptop and external hard drive on the campus.

He now faces charges of wire fraud, computer fraud, obtaining information from a protected computer and criminal forfeiture. (Read the full indictment on the NYT blog.) Although JSTOR made peace with Swartz, the DOJ intends to proceed. The indictment alleges that Swartz intended to distribute the documents on “filesharing” networks but we haven’t seen any evidence to support this claim.

As student activists and advocates of the open access movement, what can we learn from these events? How will this affect the work we plan to do when we return to school next month? Can we find a balance between the impulse toward radical action and the steady grind of institutional change?

One thing is clear: Old analogies do not scale.

News coverage and online reaction to Swartz’s arrest reveal a painful failure to produce accurate, meaningful analogies for his massive duplication of academic articles.

James Jacobs, the Government Documents Librarian at Stanford University offered this frequently quoted comparison:

“It’s incredible that the government would try to lock someone up for allegedly looking up articles at a library.”

Demand Progress Executive Director David Segal is also widely quoted as saying that,

“[The arrest is] like trying to put someone in jail for allegedly checking too many books out of the library.”

On the Demand Progress blog, Morgan Callahan wrote:

“[Swartz] is being charged with allegedly downloading too many scholarly journal articles from the Web.”

And, perhaps most disappointing, the U.S. Attorney for the District of Massachusetts, Carmen M. Ortiz, described Swartz’s alleged crimes with a stubborn lack of nuance,

“Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”

As internet-savvy free culture activists, we know that these comparisons fail to describe Swartz’s efforts and stymie real debate. PDFs on a web server are not at all like books on a library shelf. And, unlike a crowbar, Swartz’s script (cutely titled “keepgrabbing.py”) did no lasting damage to JSTOR’s machines. As long as these analogies persist, the urgent need for free culture will remain obscure.

Inaccurate descriptions of Swartz’s activities are representative of a growing misuse of the term “hacking” in news media. While Wikipedia editors struggle over the sprawling number of hacking-related pages, many journalists and commentators have fallen back on the 1990s, CompuServe-era habit of describing all computer-related crimes as
“hacking.” Everything from LulzSec to WikiLeaks to News of the World is now lumped awkwardly together. We must not allow open access or free culture to be added to that pile!

In an excellent blog post at Forbes, Timothly B. Lee describes Swartz’s actions as “reckless activism” and rightly warns about the potential negative effect on the reputation of our movement. He writes,

“Open access advocates have the natural high ground and are gradually winning the debate over the future of academic publishing.”

Open Access works without heroics. It is a reflection of the everyday practices of thousands of students, teachers, and researchers around the world.

We should condemn Swartz’s arrest because the charges are outrageous not because his tactics represent either free culture or the open access movement. The real attack on free culture is discursive, not legal. Bad analogies and out-dated comparisons obscure immediate needs that the Open Access movement seeks to address and the successes we continue to enjoy. We deserve better and we should demand it.

Update (July 25, 2010): Noam Cohen’s coverage in the NYT adds yet another unfortunate comparison to the list:

“A guy walks into a candy store and sees one of those “leave a penny, take a penny” trays. He picks it up, cups his hands and asks, “What can I get for 68 cents?”

That image came to mind with the case of Aaron Swartz …”

Is that a subtle reference to Rain Man?

This is a summary of a project I discussed at the 2011 Students for Free Culture Unconference. I’d like to thank SFC for putting the conference together, and for inviting me to publish this post on their blog.

No society that kept its laws secret could ever be called free. No government that hid its regulations from the regulated could ever stand in our tradition. Law controls. But it does so justly only when visibly. And law is visible only when its terms are knowable and controllable by those it regulates. . . .
-Lawrence Lessig, Introduction to Richard Stallman’s Free Software, Free Society.

More must be done to increase the availability, and the visibility, of justice.

Whatever more is, I decided to be one of the people doing it. That decision is behind both my application to the David A. Clarke School of Law (DCSL) and my insistence on the creation of an Illustrated Law Journal (ILJ) while there. My passion for the idea of collecting, editing, and publishing visual illustrations of laws and legal concepts stems from the beliefs articulated in the following stanza from DCSL founders Edgar and Jean Camper Cahn’s Credo, This I Believe, that informs DCSL’s mission.

And I believe the day will come when the monopoly
      over law and legal knowledge -- the lawyers' monopoly
      the law schools' monopoly -- will be broken
When men and women and yes, even children will know that which
      is expected of them and that which they can expect of others:
            to refrain from harm
            to honor their word
            to respect the dreams of others and the right of others
                 to dream in their own way
	                                         This I believe

The opportunity to know what is expected of you, and what you should expect of others should not require a law degree. We can make the text of laws more freely available to people distributionally, but until those laws are also available conceptually, there’s room for injustice in impenetrably worded, opaque laws.

What is it?

A periodic online and print journal – each issue covering a single legal topic – that will help jurists understand their work, and interested laypeople understand the laws that affect them.

What sorts of things will go in?

It could be anything that clearly illustrates a law or legal concept. Some of the things I expect we’ll publish are venn diagrams, flow charts, cartoons, and street sign type images.

What does the Journal Need? (non-exhaustive)

• A website where the editorial process can take place.
• Illustrations and ideas for illustrations of laws and legal concepts.
• While we do have several ideas for topic areas, we’d love to have more, especially from non-jurists

Where can I learn more and contribute?

The ILJ has a google group here, documents here and an Identi.ca group at !ILJ.

With our fourth conference just a week away, we are happy to announce another major milestone in the growth of Students for Free Culture. Brian Rowe, founder of the chapter at Seattle University School of Law, recently became the first SFC alumnus to join the Faculty Advisory Board!

Professor Rowe is a law and ethics professor at the intersection of human rights, code and copyright. He is an adjunct professor at University of Washington’s Information School and Seattle University Law. Brian has written comments to the Copyright Office on how DRM harms users with Disabilities and a mock trial used by high school students on blogger rights, fair use and copyright. Before joining academia he was a legal fellow at Public Knowledge and a legal intern at Creative Commons. His most recent works focus on issues of censorship through takedowns, fair Terms of Service and the implications of the Google Book Settlement on digital culture.

You can also keep track of him on twitter and identi.ca @sarterus.

Next time you see Brian, be sure to thank him for his on-going dedication to free culture and student activism!

“A Sensible Compromise,” an editorial published in the Harvard Crimson last week, described the actions of the MPAA in urging universities like Harvard to develop a “written plan to effectively combat the unauthorized distribution of copyright material by users” of the university network in compliance with the Higher Education Opportunity Act of 2008. The Crimson’s take, as suggested by the title, is that these actions and the law that supports them are reasonable and justified.

The evidence for the Crimson’s claim is shaky, based largely on two sweeping claims about intellectual property. The Crimson states as common sense that without an effective intellectual property regime, there will be no incentive for innovation.

But around the world there are well documented examples of innovation and creativity that function in the absence of strong copyright protection: the world’s second largest movie industry, in Nigeria, and the booming “techno brega” scene in Brazil were both documented in the documentary “Good Copy Bad Copy,” which is available for free online. And that’s to say nothing of all of the innovations that took place before the mid-1700s, the works of Mozart, Shakespeare, Michelangelo, and all the others that lived before modern copyright was developed. Lastly, enormous areas of creativity like fashion, cooking, comedy, and even magic tricks operate without copyright protection. Closer to home, the entire academic publishing system functions without authors retaining copyright for their works, instead exchanging their monopoly for the opportunity to publish. Copyright can certainly provide a motivation for entrepreneurs to create, but in light of these examples, The Crimson’s statement that the absence of IP laws would eliminate innovation seems unjustifiable.

The second overbroad claim in the editorial pertains to a concept called “moral rights.” “Intellectual property rights are important,” according to the Crimson, “because each person has a fundamental right to enjoy the fruits of his or her mental labor.” The fact is that that justification is not uncommon in parts of the world, but has no basis in American law. The Constitutional “copyright clause,” in fact, is the only right enumerated in the Constitution with an explicit purpose, and that purpose is incentivization: Congress may secure monopolies for creators in order “to promote the progress of science and the useful arts.” No less than Thomas Jefferson was uncomfortable with the “embarrassment” of monopolies, but conceded that as an incentive, they might be worthwhile. As a fundamental moral right? He never even considered it.

Finally, the editorial talks about the concept of “balance,” and then gets into a discussion of business models, debating whether the ones that exist today are convenient enough to remove the justification for piracy. This discussion is an interesting one, and has a place elsewhere, but let’s not confuse an economic argument with an ideological one. In the world’s premiere institution of higher learning—and truly, in any institution of higher learning—the balance isn’t a question of business models. Should Harvard University, at the urging of a media industry that presumes the students to be criminals, reduce the flow of information available to them?

The MPAA and similar organizations are comfortable to disregard the educational benefits that technology has brought us and to see the Harvard student body as a group of potential criminal freeloaders. One can sympathize with members of the movie industry which, in spite of consistently breaking annual box office records, purports to be having a hard time. And it’s certainly reasonable for a university to discuss what the legal and technical guidelines of its network ought to be. But it’s wrong to kowtow to the demands of a media industry at the cost of Harvard students’ technological autonomy.

Numerous stakeholders, watchdogs, and industry analysts have already commented on yesterday’s public disagreement between Comcast and Level 3 Communications. It’s a fascinating dispute regarding the bizarre world of “peering” agreements.

On the ride to school today, I was disappointed to hear Marketplace cover the story without even mentioning “net neutrality” or the “open internet”.

Below is the letter to the editor I sent this afternoon. Please feel free to comment, cannibalize, or re-send as your own. We need news organizations to do a better job accurately covering issues of internet freedom.

Dear Marketplace,

You missed an opportunity to cover the bigger implications of Level 3′s public complaint against Comcast this morning. Beyond immediate concerns over streaming video, the outcome of this dispute may fundamentally change the open nature of the internet. Users depend on peering agreements among countless intermediary ISPs when they access web services. We may never know the extent to which Level 3 traffic is overwhelming Comcast’s network but their unavoidable conflict of interest demonstrates a profound inability to self-regulate.

Members of Students for Free Culture include tomorrow’s internet users, developers, thinkers, and entrepreneurs. We depend on Marketplace for its critical coverage of the tech industry. Rather than focus on fees for Netflix subscribers, this story sorely needed discussion of the FCC’s struggle with “net neutrality” and Comcast’s pending acquisition of NBC/Universal.

Looking forward to further coverage as the negotiations develop!

Sincerely,

Kevin Driscoll
Students for Free Culture
University of Southern California

Want further reading? Here are some tabs:

• Level 3 press release regarding new fees from Comcast
• Comcast responds on its blog, customers sound off in the comments
• GigaOM Comcast/Level 3 timeline
• Save the Internet lists 7 recent examples of Comcast’s bad behavior
• Public Knowledge calls this a “third strike” against Comcast
• Stop Big Media describes this as Comcast being “caught red-handed”

One of the English language’s most recognized and performed songs is Happy Birthday to You (HBTY), which likely first appeared between 1893 and 1912 as new age-grading standards in American schools increased the need for a common celebratory song. Historian Elizabeth Pleck’s work shows birthday parties as a common practice had only come into vogue around the 1830s, while confection-lovers would wait another 20 years before the modern birthday cake emerged in the 1850s. HBTY is a derivative work combing generally-assumed-to-be-folk lyrics with the tune of Good Morning to All (GMTA) a melody written by and copyright to Mildred J. Hill in 1893. The original GMTA lyrics were penned by her sister, Patty Smith Hill.

Good Morning to All sheet music

Today, after a series of mergers and acquisitions the Warner Music Group claims copyright on HBTY, and current law states it will remain rightful owner in the U.S. Until 2030. This assertion is contested in detail by Professor Robert Brauneis in his paper Copyright and the World’s Most Popular Song. In spite of common belief that it remains under copyright, Braunies’ archival research indicates that HBTY may actual be a public domain work. By recapping his arguments (after the jump), I hope to help other artists understand the importance of documentation and proper registration of works should they seek to obtain copyright protection – as well as to consider problems that can arise from the continued extension of copyright term limits and in turn, the estate-based control of past works. Lastly, I’d like readers to become more aware of the general contributions made by Patty and Mildred Hill to the respective fields of education and musicology.

Read the rest of this entry »

Mark your calendars! The next Students for Free Culture conference will be held on February 19-20, 2011, in New York City! Start thinking about travel plans and funding now!

To get involved with planning the conference, join the conf11 listserv. (Need help subscribing? See the FAQ.)

The hashtag for the conference is #sfcnyc. Feel free to start tracking it and using it on twitter / identica.

Also, our current t-shirts are fantastic (see above), but we all kinda want to make some new ones, too. This is a call for t-shirt designs. Have a cool idea? Design away and send your idea to board-at-freeculture.org so we can look into getting them printed up!

I would like to start a discussion regarding something I’m myself guilty of. I feel there’s no communication between chapters. Sure, we meet every two years at our conference, some are very active in the discussion mailing list, but this is definitely not enough. Chapters are at the battlefront of the issues we are fighting, like closed universities, net neutrality, and copyright law reform.

Currently I feel we are working independently. I think this is not the best approach. Chapters should be collaborating with each other. Sharing ideas and planning activities together. Telling everyone else what they are doing, and how they are doing it.

This is very helpful for many reasons. First, for already established chapters, it’s a way to organize new activities. We can copy and remix what others have done. For new chapters, it is invaluable information. It shows them what we are doing, what they can do too. We have already prepared a chapter kick starter, Year One, but more information is always better.

I also believe this speeds up the planning of activities. For example, if I plan a FOSS Gaming Night for FC@UPRM, I need to prepare a flier to post in the bulletin boards around campus. But, if a chapter decides to host a gaming night as well, or something very similar, they shouldn’t need to make a whole new flier. They should be able to use the same flier/art a chapter already used. It’s only a matter of changing some text and, perhaps, a little bit of remixing. It’s the model we support and sponsor, a bottom-up way of making things. Like Newton once said “If I have seen a little further it is by standing on the shoulders of Giants.”

This is not a new idea. I know there are a couple fliers somewhere in the wiki, but I have no idea where they are, and that’s a problem. There should be a centralized place for all this, and something that is chapter friendly. The wiki can be a good place, but it’s currently more like a labyrinth. Perhaps a couple people from various chapters can join the webteam and do something together. I recently joined the webteam and I’m ready to work on this. Who’s with me?

• The creation of a new mailing list for chapters. Think of it like chapter news. We tell each other what we are doing. It might be short and sweet. Something like “We are talking about ACTA next Thursday.”  Or better yet, attached to the message is some art for the activity.
  • UPDATE: Well, this mailing list exists. I had no idea about it. I don’t know if I’m the only one that didn’t know about it, but, let use that. It already exists here.
• A centralized place for fliers. Something that’s organized and usable.
• Meeting in IRC. I miss the days when chapters would have meetings in IRC. These were planned meetings, not just “Hey Sparragus, what’s up? How’s FC@UPRM doing?” It would also be awesome if the board attended the meetings, too.
• Blogging more! We should be blogging more. In the SFC website, under chapter news, I always see a couple posts every other month. This is great. However, I would love to see more, and specially from more chapters. Blog once for every activity you have. And this is not necessarily blogging for SFC, but blogging for our members, our university, and for the world. We need to make sure the name of Students for Free Culture stands up high, and so does our chapters. Blogging is the easiest and quickest solution for this. Once again, it’s a great way to know what others are doing.

Let’s start conversing with each other! I would love to hear your thoughts on this. What should we do and how should we do it?

See ya all around!

Whether through ignorance or hubris, Facebook has angered many of its users over the last couple of years. No doubt readers of this blog are among them. In a wonderfully reflective blog post, Parker Higgins outlines six principles guiding his reluctant return to Facebook:

• Remember that Facebook is not your friend
• Keep on top of Facebook’s changes
• Manage all your data
• Diversify your services
• Fight for changes
• Support alternatives

Have you been thinking about ending or altering the terms of your relationship to Facebook? What would you add to his list? What challenges have you faced?

Don’t miss Parker’s full blog post here: Using Facebook responsibly.

People might remember Nina Paley Nina Paley from her Creative Commons-Licensed animated film Sita Sings the Blues. This particular animation was created to playfully illustrate some of the reasons that the Electronic Frontiers Foundation exists. (Original video page with description on the EFF website)