{"id":5688,"date":"2013-02-19T18:52:46","date_gmt":"2013-02-19T23:52:46","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=5688"},"modified":"2016-11-16T19:54:24","modified_gmt":"2016-11-17T00:54:24","slug":"a-summary-of-laurence-lessigs-chair-lecture-at-harvard-law-school","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/a-summary-of-laurence-lessigs-chair-lecture-at-harvard-law-school\/","title":{"rendered":"A summary of Lawrence Lessig\u2019s Chair Lecture at Harvard Law School"},"content":{"rendered":"

\"\"<\/a><\/p>\n

\u201cAaron\u2019s Laws: Law and Justice in a Digital Age\u201d<\/p>\n

Feb. 19, 2013<\/p>\n

 <\/p>\n

Watch the lecture here: http:\/\/www.youtube.com\/watch?v=9HAw1i4gOU4&feature=youtu.be.<\/p>\n

 <\/p>\n

PLEASE WATCH IT<\/p>\n

 <\/p>\n

Professor Larry Lessig, the most famous legal scholar of the internet gave his chair lecture today in Harvard Law\u2019s Ames Courtroom, which was packed with students, professors, and community members. \u00a0Lessig was a close personal friend and mentor to Aaron Swartz, the brilliant young cyber-thinker who committed suicide last month in the midst of what most have considered the overly aggressive prosecution of him by the U.S. Attorney for the District of Massachusetts, Carmen Ortiz. The tragedy has sparked widespread calls for reform of the Computer Fraud and Abuse Act (CFAA), under which Swartz was being prosecuted, and limits on prosecutorial discretion in general.\u00a0 Some on the left have expressed dismay that the suicide of a wealthy white academic has prompted such outrage when aggressive prosecution is a daily occurrence in minority communities.\u00a0 Others have jumped into the fray, seeing a rare opportunity to push for reform.\u00a0 For just one look into the response to his death the New York Times has a good article here: http:\/\/www.nytimes.com\/2013\/01\/14\/technology\/aaron-swartz-a-data-crusader-and-now-a-cause.html?pagewanted=all<\/a><\/p>\n

 <\/p>\n

Lessig started out saying that he had planed to speak on corruption, but that Swartz\u2019s suicide left him with no option but to change the topic to Aaron\u2019s law, which he says is beyond his expertise and which he can address not as an academic, but only as a citizen.\u00a0 Lessig had known him for 12 years, explaining that his experience mentoring Aaron was \u201chis first experience being a father.\u201d\u00a0 Showing excerpts from the blog Swartz kept during his one year (or so) at Stanford, Lessig showed him as a sweet child, free thinker, and an idealist who touched and inspired many people when he founded about 10 non-profits devoted to free information and social justice.<\/p>\n

 <\/p>\n

\u201cAt the center of [Aaron\u2019s] struggle is and was copyright.\u00a0 In the debate between people who are pro and anti copyright, Aaron was on neither side.\u201d\u00a0 Rather, he opposed \u201cdumb copyright.\u201d\u00a0 A perfect example was Swartz\u2019s efforts to liberate data from PACER the database of public court records, which charged 8 cents a page.\u00a0 He was not violating copyright, technical restraints, terms of service or any other prohibitions.\u00a0 He had found a loophole.\u00a0 \u201cA loophole for public good\u201d as opposed to the loopholes used for private gain by lobbyists and tax lawyers.\u00a0 Swartz did the same thing with the government\u2019s database of issued copyrights.\u00a0 The PACER project got Aaron FBI surveillance; the copyright project, on the other hand, was met with approval by the Copyright Office.\u00a0 Using all this as proof Lessig continued to emphasize that Aaron was a hacker.\u00a0 He defines \u201chacker\u201d as one who uses technical knowledge to make a better world.<\/p>\n

 <\/p>\n

According to Lessig, Aaron was his mentor, not the other way around.\u00a0 The two worked together, upon Aaron\u2019s insistence, on anti-corruption campaign for a while before they split again: while Aaron wanted to turn Barrack Obama into Elizabeth Warren, Lessig wanted Obama to pick up the fight with corruption he had promised in 2008.\u00a0 Without that fight, the defenders of the status quo would defeat real change.<\/p>\n

 <\/p>\n

However, in the saga of the two crusaders, the COICA (Combat Online Infringements and Counterfeits Act) drew them back into fights about copyright, a la Al Pacino<\/a> and George Costanza.\u00a0 And Aaron\u2019s Demand Progress, with massive help from Wikipedia, Craigslist, Reddit and more killed SOPA and PIPA.\u00a0 What Aaron saw in that win was not just a victory for copyright law, but a victory for grassroots political activism against the money of Hollywood.<\/p>\n

Then the talk moved to arrest and prosecution.<\/p>\n

 <\/p>\n

Aaron had \u201cbroken into a restricted computer wiring closet,\u201d by turning the door knob; \u201caccessed MIT\u2019s [famously open] server without authorization;\u201d he accessed \u201cJSTOR\u2019s archive of digitized digital articles,\u201d which as a fellow at Harvard he had the right to do; he concealed his identity, by covering his face with a bike helmet; he \u201cdownloaded a large portion of JSTOR\u2019s archive.\u201d\u00a0 The story behind his motivation is available here: http:\/\/www.newrepublic.com\/article\/112418\/aaron-swartz-suicide-why-he-broke-jstor-and-mit#<\/a> Aaron was, in short, horrified by the restriction of free academic articles to the \u201cknowledge elite\u201d at US universities and started Guerrilla Open Access Manifesto<\/em>.\u00a0 He started a campaign urging people to obtain electronic copies of articles and publish them online.\u00a0 He would publish online anything sent to him and advocated \u201csome shell-scripting and breaking a couple rules\u201d to free information.\u00a0 It was, to him, civil disobedience.\u00a0 In order to protect Lessig, who though he agreed with the goal, but disagreed with his tactic of civil disobedience (or at least had misgivings about it), Aaron set is MIT project at MIT rather than at Harvard.<\/p>\n

 <\/p>\n

Aaron was charged with 13 felonies, which could carry up to 35 years in jail.\u00a0 What he did was not obviously not a crime.\u00a0 But it was not obviously a crime either.\u00a0 Now, the law.<\/p>\n

 <\/p>\n

Was this about copyright?\u00a0 It triggered copyright.\u00a0 But neither the indictment nor the superseding indictment mentioned copyright infringement.\u00a0 This is because JSTOR would not cooperate with a copyright prosecution.<\/p>\n

 <\/p>\n

So we\u2019re left with the CFAA.\u00a0 The key point of contention in the CFAA, in this case, is \u201cexceeds authorized access.\u201d Does that phrase apply to hackers, or to people who misuse information to which they have access to.\u00a0 With the first, you break technical, coded restrictions to get to information.\u00a0 For the later, you\u2019re breaching contract, the terms of service, to get to the information.\u00a0 These are felonies.\u00a0 Can it really be that under the CFAA a breach of contract is a felony violation of the criminal laws of the United States of America?\u00a0 Judge Kozinski says no: http:\/\/cdn.ca9.uscourts.gov\/datastore\/opinions\/2012\/04\/10\/10-10038.pdf<\/a>\u00a0\u00a0 According to Kozinski, violating code, hacking around technical restraints is a felony but violating terms of service, breaching a contract, is not.\u00a0 But in either case, you\u2019re simply disobeying some words.\u00a0 Why should the coders\u2019 words be taken more seriously than the lawyers\u2019?\u00a0 In reality there were several computer tricks back and forth between Aaron and JSTOR, changing and blocking IP and Mac addresses.\u00a0 In the end, among other things, MIT had all of its access to JSTOR blocked briefly.\u00a0 And its not clear how his access would have been unauthorized or exceeding authorization.<\/p>\n

 <\/p>\n

However, regardless of whether or not Aaron\u2019s access was unauthorized, and harm he caused was very ambiguous.\u00a0\u00a0 Sharing the articles on file-sharing networks would not have caused any financial harm for JSTOR.\u00a0 Which is why they settled.\u00a0 While Ortiz said that \u201cstealing is stealing whether you use a computer command or a crowbar.\u201d\u00a0 That\u2019s not true.\u00a0 Crowbars always cause harm.\u00a0 Computer code does not.\u00a0 Lessig says that we need prosecutors who can tell the difference between crowbar like hacking and hacking that does not cause harm, or may not cause harm.\u00a0 The government \u201cassure[d]\u201d Kozinski that it would not use the CFAA to violate minor violators.\u00a0 We need prosecutors who stick to that promise.<\/p>\n

 <\/p>\n

Lessig\u2019s key point, regarding the \u201ccrime\u201d itself is: Whether or not we agree with Aaron, whether or not we thing what he did was right or wrong, we know that what the prosecutor did was wrong.\u00a0 The prosecutor was wrong to bully Aaron, to play example justice with him, to try to teach him a lesson.<\/p>\n

 <\/p>\n

Aaron\u2019s law is great.\u00a0 But it\u2019s incomplete.\u00a0 He cannot be boiled down to a hacker, an internet activist or even a political activist.\u00a0 Rather he was a citizen who acted on a view of what he thought was right.\u00a0 According to Lessig, we need to make Aaron\u2019s ideas laws.\u00a0 Aaron\u2019s Laws not Aaron\u2019s Law.<\/p>\n

 <\/p>\n

First: Aaron\u2019s Law is great.<\/p>\n

 <\/p>\n

Second: we must destroy dumb copy right.\u00a0 Including overturning the Sonny Bono Copyright Term Extension Act and defeating the Research Works Act, which would forbid the US Government from supporting open access research.<\/p>\n

 <\/p>\n

Third: End corruption; end money in politics; give the power back to the people.<\/p>\n

 <\/p>\n

Fourth: \u201cFix the obliviousness that we live our daily life with.\u201d\u00a0\u00a0 We have an obligation as citizens to pull back the government when it overreaches.<\/p>\n

 <\/p>\n

As Kozinski, the Romanian immigrant said in Nosal<\/em>, \u201cwe should not have to live at the mercy of our local prosecutor.\u201d\u00a0\u00a0 While the U.S. is not the U.S.S.R., we must ask whether or not it\u2019s still America.\u00a0 We must fight for the right to think differently in America.<\/p>\n

 <\/p>\n

In the question and answer session, Lessig says that when JSTOR dropped out of the case he thought the case would be over.\u00a0 While MIT, against everything that everyone expected of him, pressed the case, it is now taking it very seriously.\u00a0 They have appointed Hal Abelson (http:\/\/www.csail.mit.edu\/user\/1535<\/a>) to run an internal investigation, who Lessig says is the best man for the job and who he has complete trust in to come to the right answers.<\/p>\n

 <\/p>\n

In response to a question about prosecutorial discretion Lessig said that while he will defer to experts on the subject, like Charles Ogletree, on the topic in general.\u00a0 But he said that we can look at computer laws separately because in the realm of computers to be practice civil disobedience in cyberspace is to step off a cliff: rather than a slap on the wrist, that<\/p>\n

 <\/p>\n

The law and lawyers have an enormous potential to do good.\u00a0 However, it takes a sort of courage that is too often driven out of us.\u00a0 We must tell stories about, and encourage, and protect those lawyers who do good.\u00a0 We must decide who we are going to be.\u00a0 While must we pick our fights, for if we do too much right we might retire too early, we must pick some fights.<\/p>\n

 <\/p>\n

As I said, please watch the video.\u00a0 It is inspiring, moving, emotion and brilliant.<\/p>\n","protected":false},"excerpt":{"rendered":"

\u201cAaron\u2019s Laws: Law and Justice in a Digital Age\u201d Feb. 19, 2013   Watch the lecture here: http:\/\/www.youtube.com\/watch?v=9HAw1i4gOU4&feature=youtu.be.   PLEASE […]<\/p>\n","protected":false},"author":64,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":true,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,45],"tags":[],"coauthors":[],"class_list":["post-5688","post","type-post","status-publish","format-standard","hentry","category-amicus","category-criminal-justice"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZrWS-1tK","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/5688","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/users\/64"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/comments?post=5688"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/posts\/5688\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/media?parent=5688"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/categories?post=5688"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/tags?post=5688"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/crcl\/wp-json\/wp\/v2\/coauthors?post=5688"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}