My Grandfather, who was the US Attorney for west Memphis, once explained that prosecuting the law was messy. It was messy because there was rarely a case which hinged on exactly one part of the law or that had circumstances that nicely isolated the principle at stake. He was talking about pornography, and the difficulty of a general consensus that pornography was "bad" and should be outlawed, with the challenge of defining exactly what it was and the actual "bad" part of it.
I see a lot of parallels between his struggle to enforce pornography laws with the current struggle to enforce copyright laws. These situations seem to arise when there is a fundamental disconnect between what "the people" think and what "the system" thinks. "The system" is represented by a codified set of strictures that are put in place by a variety of people representing what they assert are the best interests of "the people." Whereas the people themselves, act in what they consider a rational way given their understanding of or perhaps agreement to, the laws of the land. Finally our system of laws are a combination of written text, and argued cases, and the sum of those is an emergent thing thought of as public policy. When the rational acting people don't consent to the public policy, there is a rash of disobedience, and whether it is alcohol, porn, or copyright, the process of emerging to a consensus is challenging at best.
One possible explanation for the zeal in which this case was pursued may be the lack of confounding factors with respect to copyright infringement, as codified by law. I don't know of course so this is just speculation. Having a clear, published, decision on the legitimacy or illegitimacy of what Aaron was doing might have been seen as a way to clear up a confusing pile of statutes and other decisions. An unambiguous marker between fair use and infringement, or perhaps a litmus test for intent. We'll probably never know.
Sure, but I don't know if it would move the copyright reform question along. Copyright is very broken in a number of ways but there is broad consensus in people I've talked to that it is especially broken with regards to public records and science research. In the best of all possible worlds Aaron would have been acquitted with a landmark decision that said "this use of copyright in rent seeking behavior on documents of public discourse is unconstitutional."[1] Aaron was doing perhaps more than he knew to push this conversation along, had I known he was in such dire straits in his defense fund I would have helped in any way I could have. Clearly others would as well.
If you look at Carmen's career you will find that she has actually done a lot of good, in getting bad folks put behind bars. She, or her staff, blew it on this one. I wish I knew why. I doubt we'll get the actual story there.
So to what end would ending her career advance Aaron's goal of getting copyright on public records overturned? Making people "afraid" to prosecute it is the wrong answer, making it "not a crime" is the answer. There are only two ways to do that, one is to repeal the statute that makes it a crime in the first place, the second is to litigate the statute and find that the statute is invalid.
Firing Carmen doesn't help, although I completely understand the emotional appeal of doing so.
[1] I know that would not have happened it is illustrative.
All the good she's done doesn't matter, because when you're a prosecutor, all it takes is one mistake and you've could have blood on your hands. Firing her would send a message to other prosecutors that mistakes will not be tolerated.
Sufficiently advanced incompetence is indistinguishable from malice.
If you get drunk, hop in your car, and accidentally kill some people, then guess what? It doesn't matter if it was an accident. If your "accident" is big enough, it becomes indistinguishable from malice and you get held accountable.
And yet, even given DUI laws of varying (arguably insufficient) harshness people still drive drunk. 20 years from now or so, when self-driving cars are the norm, DUI will thankfully be a relic of the past, and many lives will be saved.
I severely disagree with this, and find it one of the most destructive mentalities persistent in society.
I have a good friend whose father was abusive, and a perfectionist. My friend, as a consequence, holds everyone to an impossible standard - most of all herself - and it's sad to watch, especially given that she's one of the most brilliant, passionate, hard-working people I know. When you expect and demand perfection from people, you will only be let down.
I believe people are well intentioned, but fallible, and demanding retribution for every failing is just a pretty crappy way to go through life. I am very willing to forgive, and only hope that, in my life, others will forgive me when I don't do right (and I'm under no illusions that I always do the right thing)
If it is an accident, exactly what purpose would punishing them serve?
If it was due to negligence, then there is the issue of to what extent it has a preventative effect.
I'm Norwegian. One of the aspects of the Norwegian legal systems is short prison sentences. The legal maximum sentence is 21 years with a recent modification that allows for extensions (this must be included in the conviction, and is restricted to particularly severe crimes) if the prisoner is considered to still be a risk to society. On top of this, a prisoner is usually let out after 2/3 is served, assuming good behaviour, and will get time limited parole even before that (such as weekends with their family).
So a few months ago, for example, a major newspaper published an interview with a woman convicted of a double murder a decade or so ago, carried out at a cafe while she was out of prison for the day on one of her first parole days. In this case still accompanied by a police officer.
And you know what? I'm happy about that, because we also have one of the lowest re-offending rates.
Vengeance is not a good basis for a legal system.
And if what you want is to minimize harm to the public (and that includes those you put in prison, before someone gets the bright idea that lifetime confinement is a solution), punishment simply doesn't work very well.
This isn't like like murder or robbery, where the criminal can more or less reoffend at will. You can't prosecute unless you are an official, government-recognized prosecutor. If she is removed from her job, she won't be able to prosecute anyone ever again.
Consider this allegory as a way to recontextualize the question.
Let's say that you have a software project, and one of the engineers on the project is fixing bugs. His bug fixes generally fix the bug but often are found to have performance impacts, or later when another problem is found his bug fixes require complex refactoring.
This person is doing their job, day in and day out. Will firing them make your system any better? No, it won't.
This is a management problem, the manager talks to this guy and sets guidelines and standards for his bug fixes, the manager creates policies around how bug fixes are evaluated and the way in which engineers are evaluated that fix them. And then if this engineer can't do the job, as the manager needs it done, then you let them go because you really need a better engineer in that slot.
Its always the manager's fault if someone is let go for just doing their job. If how they did it is an issue, the manager should fix it, and if they are incapable of fixing it then you let go the manager and replace them.
Now, let's say that his "bug fixes" actually result in someone's death, and that his definition of "doing his job" consists of working obsessively on trivial matters while ignoring more serious ones, and that his entire motivation appears to be to get his name in the papers rather than actually solving problems.
Ortiz IS the manager in this situation, by the way.
Better than just paying for mistakes is learning to prevent them the next time. If every major mistake anyone made was accompanied by an impartial failure analysis instead of finger pointing and scapegoating, society would advance much more quickly.
People make mistakes. Prosecutors who make mistakes ruin the lives of innocent people. If you ruin the life of an innocent person, then you're part of that broken system.
Just remember this: this is a Prosecutor who went after Aaron Swartz, even though the alleged victim didn't want to press any charges and had dealt with the matter outside of the court system, in a way that was satisfactory to both parties (Swatz and JSTOR).
My god, what a blatant appeal to emotion. You people complain about politicians pandering and the like, and then you say something as stupid as that. If you actually want a decent debate, it helps if you don't try frame your opponent as a sociopath.
The last sentence, while an appeal to emotion in the way it was phrased, actually made a reasonable point. The prosecution of Aaron Swatz should never have been treated like a test case to see exactly how far the prosecution could get away with.
The law should not be made by prosecuting someone to see where the boundaries of legislation lie.
Except it is, and always has been. Legislation is written by elected representatives, and then interpreted by judges when it is "tested in court". At least in the UK, we have had well meaning legislation that was universally condemned, simply because the way it was written allowed it to be interpreted in a large number of ways, some of which were very different to the original intention of the legislation. In the US, if we look at one of the most famous civil rights activists, Rosa Parks, she was seen as so successful because she was the perfect person to be used for a test of the city's segregation laws.
That said, I personally don't believe that was the case here. It seems that in many ways this prosecution was just a standard prosecution; prosecutors often ask for crazy sentences (and don't get them-, and I don't honestly believe that there was a particularly unprecedented amount of malice on the part of the prosecution.
The original party asked the Dept of Justice to drop the case. That sounds like a large amount of malice to me - they wanted to squeeze 35 years of the guy's life, even though the original "victim" decided not to go ahead with a complaint.
I thought it was only JSTOR that said that, and that MIT had not made that clear? Anyway, that wasn't really my main point. Prosecutions sometimes do define the law, that's the power of precedence.
Devil's advocate here. If Carmen actually agreed that Aaron's actions were not a crime, but wanted most of all to set a precedent, could that not explain her actions without malice? Maybe she was ideologically on Aaron's side, but recognized that a weak or cancelled prosecution would not yield a useful precedent. If she demonstrated a strong case and lost, it would send a message that Americans don't agree with strict enforcement of copyright in that way.
Of course this would be little solace to Aaron, as he probably would not be made aware until afterward, if ever.
I suspect that having a lost prosecution on her record would be more harmful to her own goals than helpful to the goals of any causes, so this explanation seems unlikely to me.
That falls to Occam's Razor. Prosecution is the way to conviction, so just publicly choosing not to prosecute would be a strong message.=, ad much lower cost.
Also, federal cases usually get settled in pleas, so there's less actual precedent. Going all the way to court would have been painful for him AND would have increased the odds of conviction.
You do realize, that you are suggesting we do "eye for an eye" right? She decided to drive a tack with a sledge hammer, and you are calling for us to do the same? I do think she is wrong, but attempting to do the same to her makes us no better than them.
"These situations seem to arise when there is a fundamental disconnect between what "the people" think and what "the system" thinks"
The system serves the people; the system's thinking should be subordinate to what the people think. Anything less is a sign that the system is broken and is immediate and desperate need of an overhaul (but that is pretty obvious at this point).
I see a lot of parallels between his struggle to enforce pornography laws with the current struggle to enforce copyright laws. These situations seem to arise when there is a fundamental disconnect between what "the people" think and what "the system" thinks. "The system" is represented by a codified set of strictures that are put in place by a variety of people representing what they assert are the best interests of "the people." Whereas the people themselves, act in what they consider a rational way given their understanding of or perhaps agreement to, the laws of the land. Finally our system of laws are a combination of written text, and argued cases, and the sum of those is an emergent thing thought of as public policy. When the rational acting people don't consent to the public policy, there is a rash of disobedience, and whether it is alcohol, porn, or copyright, the process of emerging to a consensus is challenging at best.
One possible explanation for the zeal in which this case was pursued may be the lack of confounding factors with respect to copyright infringement, as codified by law. I don't know of course so this is just speculation. Having a clear, published, decision on the legitimacy or illegitimacy of what Aaron was doing might have been seen as a way to clear up a confusing pile of statutes and other decisions. An unambiguous marker between fair use and infringement, or perhaps a litmus test for intent. We'll probably never know.