Intellectual Property, Jewish Ethics, and Aaron Swartz

Last night, I participated in a panel discussion sponsored by the Jewish Study Center and the National Museum of Jewish Military History. Inspired by Aaron Swartz’s death, the panel was to discuss intellectual property in Jewish Law and Jewish Ethics.

 

I’m copying my speech below. I have elaborated a bit in this version for those not familiar with Jewish traditional sources. In particular, I need to emphasize that Jewish tradition does not regard “the sin of Sodom” as relating to sexual immorality. The “sin of Sodom” and therefore “the way of Sodom” disparaged by the Rabbis, refers to excessive love of wealth that causes cruelty and oppression (see this summary piece here). As Netaneal and Nimmer note in this article, the prohibition against behavior considered “the way of Sodom” acts to limit excessive copyright enforcement even for those who regard copyright as creating a form of property right in Jewish law. In my remarks reproduced below, I focused on the moral and ethical dimension of the prohibition on “the way of Sodom” rather than any practical application in Jewish copyright law.

 

Text below . . . .

Presentation On Intellectual Property Law and Jewish Ethics

Tuesday, November 19, 2013

 

Good evening and thank you for inviting me here today. I did not know Aaron Swartz personally, although it was impossible to work in the intersection of tech policy and intellectual property and not feel the influence of his work. When I think of Aaron, and of his tragic suicide, I find myself considering the question of over-enforcement of intellectual property and what it says about our society and its priorities.

 

 

Pirkei Avot, the collection of mishniyot referred to in English as Ethics of Our Fathers, contains the following discussion of attitudes on property:

 

 

“Arbah Midot Ba’olam. Ha-amar ‘sheli sheli v’shelcha shelcah’ zo midat beinonit, v’yaish omrim zo midat s’dom. Ha-amar, ‘sheli shelcha v’shelcha sheli,’ am ha-aretz. ‘Sheli shelcha v’hashelcha shelcha,’ chassid. ‘Sheli sheli vhashelcha sheli,’ rashah.”

[Pirkei Avot 5:13]

 

Translation: “There are four types of moral character. One who says: ‘what is mine is mine and what is yours is yours.’ This is an average person. Some say it is the Way of Sodom.  The one who says: ‘what is mine is yours and what is yours is mine,’ is ignorant of the world. ‘What is mine is yours and what is yours is yours’ is the righteous. ‘What is mine is mine and what is yours is mine’ is the wicked.”

 

As I shall explain, many people think that the debate around intellectual property and public policy involves a conflict between the first type – hasheli sheli v’shelcha shelcha (what’s mine is mine, what’s yours is yours) – and the second type “sheli shelch v’shelcha sheli” (what’s mine is yours, what’s yours is mine). The media (which come down firmly on the side of their owners for expanding copyright) frame the debate as the well-meaning but foolish ‘Information wants to be free’ v. the more intuitively appealing respect for ‘intellectual property.’ Unworldly academics and idealistic young hackers, we are constantly told, simply don’t understand that without a way to control and make money from things like copyright, patent and trademark we would have no publishing industry, no movie industry, no medicines and technology and other inventions.

 

 

In reality, however, the modern debate over intellectual property policy in the last 30 years actually takes place solely in the context of the first sentence of the Mishna. The question is not whether we should have copyright or patent or trademark in an abstract sense. In light of our constant creation of new rights of enforcement and burdens placed on others for non-infringing uses, such as the Digital Millennium Copyright Act and its “anti-circumvention provision,” and our efforts to force these ever expanding policies on other countries through trade agreements negotiated in secret, such as the recently reported Trans Pacific Partnership Agreement (TPP), the question is whether we have departed from ethical laws and increasingly come to resemble the injustice and cruelty of Sodom.

 

 

For those not familiar with the traditional Jewish view of the “sin of Sodom,” I must clarify that traditional Judaism does not follow the common Christian view that God destroyed Sodom over sexual immorality. Rather, our sages tell us that God destroyed Sodom because of their excessive cruelty to one another.

 

 

Still, it seems extreme to say that one who says “what is mine is mine and what is yours is yours” is like Sodom – the city that stood out even amidst the abominations of the Canaanites as ‘exceedingly wicked and sinful before the Lord?’ (Gen 13:13) The Torah deals with personal wealth and private property in an approving way. Personal wealth and private property are often cited as gifts from God. Theft is prohibited, and respect for other people’s property is encouraged by our law. Even if we regard “what’s mine is mine and what’s yours is yours” as a being of a lesser degree than the more generous “what’s mine is yours and what’s yours is yours,” how can this attitude also be emblematic of the nature of Sodom?

 

 

When Obsession With Ownership Outlaws Sharing, It Is The Way of Sodom.

 

 

The Talmud in Meschet Sanhedrin Daf Kuf Tet (109) explains. The people of Sodom took the love of wealth to an outrageous extreme. Despite the fact that God gave them a prosperous land, “richly watered” (Gen: 13:10) in the midst of the desert, the people of Sodom horded their wealth so much that the Talmud explains that the people of Sodom outlawed travelling, and prohibited anyone who came to Sodom from leaving. Why? Because they said: ‘food grows from the ground, and gold and sliver come from the ground. If someone leaves the city, they will carry away our dust and we will be poorer.’

 

 

Worse, the love of wealth corrupted their law and their morality. The Talmud explains that the people of Sodom outlawed any form of sharing or charity while making a mockery of the forms of charity. Thus, as the Talmud describes, people would give a visitor coins as charity with a special mark on it, so that every merchant would know not to take the coin. When the poor person starved to death, everyone would retrieve his coin. If anyone gave food to a stranger, the law required the people to gather and strip the person who gave a stranger food of all wealth and possession, even to the clothes the person was wearing. Thus, even those who might give charity feared to do so.

 

Why? Because the people of Sodom became so obsessed with controlling their wealth it that the absolute control of wealth became the foundation of their morality. Anything that challenged the fundamental idea of “what’s mine is mine and what’s yours is yours” became repugnant in their eyes. They viewed the individual who chose to share as not merely deviant and immoral, but a threat to the very fabric of society.

 

Or, as we might say in modern parlance, sharing challenged the ‘business model’ of Sodom. So much so that the people of Sodom not only wanted to mae sure they controlled their own wealth, they wanted to prevent anyone else from demonstrating the value of a rival business model.

 

 

Unfortunately, as Professor Jazi can relate in more detail, the obsession of the movie industry, the publishing industry, the pharmaceutical industry and others has created similar warping of our modern law.  At the behest of the most wealthy companies in the country – indeed the world – we have laws that punish illegal copying more harshly than we punish swindlers who rob the poor of their pensions. We criminalize technologies that enable sharing because they might be used to violate copyright. We have dedicated units of our law enforcement to patrol for copyright violators instead of focusing those resources on crimes such as human trafficking – and we demand that other countries adopt even more extreme versions of our laws as a precondition of establishing trade agreements. We allow patent holders to sue businesses for businesses for using legally purchased off the shelf technologies in good faith.

 

And it is never enough. At every opportunity, these businesses lobby for still more enforcement, more expansive laws, and harsher punishments.

 

 

Most recently, the Motion Picture Association of America fought against ratification of a treaty that would have recognized an international exception to copyright to make books available in audio format to the blind. Why did the MPAA fight so hard against this treaty when not only do we have such an exception already in American law, it didn’t even involve movies? Because the MPAA said: ‘We must not allow any exceptions to copyright to be acknowledged by international treaty, lest someday someone might find a reason to apply such a limitation on copyright to us and we might lose some sales.’

 

 

This is not “beinoni,” the normal way of the world. This is ‘derech Sodom’ the morality and teaching of Sodom that elevates ownership of wealth above all else and brooks no rival philosophy.

 

 

Aaron Swartz Against The Way of Sodom.

 

 

But in particular, the prosecution and suicide of Aaron Schwarz reminds me of perhaps the most famous midrash of Sodom that we learn in day school. It is told in both Meschet Sanhedrin and the Midrash Rabbah. A woman took pity on a starving beggar by a well. She hid some bread in her pitcher and gave it to the starving man. The people of Sodom discovered this and brought her before a judge of the land. They sentenced her to be tied to the wall of the city and have honey rubbed in her hair as an example to others. The bees came and stung her to death. As her cries reached the Heavens, the Lord said: “Now is the Cry of Sodom great, and their sin is exceedingly heavy.” (Gen 18:20)

 

 

Aaron Swartz could not bear the injustice of our current code of laws. He chose to protest them by demonstrating the foolishness of the law by downloading journals of science and making them available more broadly. Swartz had legal access to the online archive as a research fellow at Harvard, which also gave him the legal right to physically access the MIT Campus where the downloading took place. The only question was whether his violation of the “terms of service” for his access to the JSTOR archive, or his plugging his laptop directly into MIT’s high-speed network rather than going through an approved terminal that would have limited his ability to make the copies, violated the law. Many legal scholars and practitioners interviewed in the press expected the charges to be dismissed to pleaded to probation. As the NY Times explained: “”a respected Harvard researcher who also is an Internet folk hero has been arrested in Boston on charges related to computer hacking, which are based on allegations that he downloaded articles that he was entitled to get free.”

 

 

But U.S. Attorney Oritz and Assistant U.S. Attorney Stephen Heyman decided to “make an example” of Swartz to “send a message” that “stealing is stealing” even when it does not involve actual stealing. Swartz was indicted for 11 violations of the Computer Fraud and Abuse Act, carrying a maximum penalty of 35 years in prison and $1 million in “restitution,” although no one was deprived of anything or lost any sales. In two years of prosecution as a prelude to trial, the prosecution forced hounded Aaron’s family, friends and colleagues. They made it impossible for him to work, while forcing him to spend his entire personal fortune on defense attorneys. The idea was to so drain Aaron’s resources and ruin his life to the point where Aaron would accept a “plea bargain” that included an admission of wrongdoing and a jail term.

 

 

Why? As prosecutors explained at a Congressional hearing, they prosecuted  Aaron Swartz in this manner and demanded a felony conviction precisely because he encouraged other people to question, to question, the current state of law and practice that locks knowledge away. They held up Aaron’s writings arguing the case for open access to knowledge as proof that Aaron promoted “dangerous ideas” that encouraged others to think that sharing was good and locking away knowledge was wrong. That was why it was so vitally important to them to get Aaron Swartz to recant and admit guilt of some kind – any kind – and do some form of minimal jail time. Because above all else, they wanted anyone who dared to suggest that sharing might ever be the ethical thing to do be branded a criminal and a threat to society.

 

How is it possible that prosecutors could compare Aaron Swartz’s conduct to rape? How is possible for the Department of Justice to regard Aaron Swartz’s act of protest — an act which many legal scholars argued did not even constitute a crime — as deserving the same punishment as the terrorists who planned the 2008 Mumbai massacre?

 

How is this not derech Sodom? To the contrary, it is the very definition of the way of Sodom.

 

Bankrupted by the ongoing cost of his defense, isolated from friends and family because anyone in contact with him was promptly subpoenaed by government prosecutors, Aaron Swartz committed suicide last January. While not literally tied to the wall of the city and stung to death, the two year prosecution that left him broke and alone accomplished the same end. And for the same purpose. To make an example of anyone who dares to challenge the morality of our current policy that exalts the principle of “sheli sheli v’shelcah shelcha” beyond what is needed to support society – the level of the beinoni – to a level that makes a perversion of morality and justice.

 

 

The cry of Aaron Scwartz is great. It is not the cry of “information wants to be free,” the foolish cry of the idealistic hacker or unworldly academic who thinks “sheli shelcha v’shelcha sheli.” It is the cry against a world of lobbyists from the wealthiest industries in the world that long ago departed from the normal path and push us ever further down the way of Sodom. If we are to remain true to our moral and ethical tradition, it is a cry we must heed, and call us back to our proper path.