Aaron Swartz was a Harvard Research Fellow who was involved in the Creative Commons organization and a partner in the online news provider Reddit. He founded the online group “Demand Progress,” which campaigned against the American Stop Online Piracy Act, a bill intended, among other things, to stop copyright infringement. Proponents of the bill were mainly producers and distributors of copyrighted material and their representatives. They included the Motion Picture Association of America, Viacom, the Screen Actors Guild, the AFL-CIO and the US Chamber of Commerce. Opponents included organizations which disseminated copyrighted material online such as Google, YouTube and Wikipedia as well as human rights groups such as Reporters Without Borders, the American Civil Liberties Union and Human Rights Watch. Also objecting was the American Library Association. Aaron Swartz was an activist who fought against restriction on the Internet. He was well known for his activities.
In the course of his work, Swartz downloaded a number of articles from JSTOR, a digital depository of scholarly journals. Like many of us, his employers provided him with a JSTOR account. He did so using a laptop connected to a “controlled access wiring closet” at the nearby Massachusetts Institute of Technology. On January 6, 2011, Swartz was arrested by MIT campus police and US Secret Service agents. In July, 2011, he was indicted by a Federal Grand Jury on charges of wire fraud, computer fraud, obtaining information from a protected computer and recklessly damaging a protected computer. In November, 2011, he was indicted by a local Grand Jury on charges of breaking and entering with intent, grand larceny and unauthorized access to a computer network. In December, 2011, the state charges were dropped in deference to the federal prosecution. In September, 2012, federal authorities added nine more felony counts. If convicted, Swartz faced a $1,000,000 fine and fifty years in prison.
Having made their point, the authorities offered a plea bargain. If Aaron Swartz would plead “guilty” to some of the lesser charges, he would spend just six months in prison. Swartz declined the offer and made a counter-offer, which the authorities promptly rejected. Two days later, on January 11, 2013, Swartz hanged himself. Meanwhile, Swartz’s alleged victims, JSTOR and MIT, declined to seek compensation in civil court. In August, 2013, Aaron Swartz was inducted into the Internet Hall of Fame. Soon after his funeral, the Fair Access to Science and Technology Research Act was introduced in the US Congress. To the best of my knowledge it is currently languishing in committee.
Copyright law is plainly serious business. The arrival of the photocopier, the audiotape recorder and the disc burner have complicated matters immensely. The Internet has made it a global issue. As the case of Aaron Swartz demonstrates, it can have consequences more deadly than the failure to pay royalties and the competing principle of “open access.”
Murray and Trosow’s book is properly subtitled a “Citizen’s Guide” for, although it does an admirable job of explaining some of the finer points of the law and providing genuinely helpful advice to educators who have vested interests in copyright as both creators and disseminators of information, it also puts the matter in context or, rather, several contexts.
One such context is the tension between “ownership” and “fair use.” As Jay Rahn reminded me in a very positive review of the first edition of this volume, the United Nations Universal Declaration of Human Rights (1948) affirmed what quickly can become contradictory principles. On the one hand, it declares that “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the owner.” That means that, for example, authors deserve to be paid when someone copies and distributes their writing. On the other hand, it asserts that “everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.”
These principles are at the core of an emerging field called “intellectual property” in which lawyers battle on behalf of clients who feel that they are owed for the use of their words, music, film or other form of expression or on behalf of other clients who believe that they should have access to such material for a variety of purposes including research and educational study. Underlying such disputes are the adversarial interests of the private desire to make money from the rental or sale of the fruits of creative work versus the public good to be realized by allowing teachers, students and others to learn from what such creators have produced. At issue are notions of “copyright infringement” which creators (and the corporations that regularly control them) hold dear and “users’ rights” which are articulated by people who wish to do anything from photocopying or, more likely, posting articles or book chapters for students to those who want to “download” music and videos without paying a fee.
Murray and Trosow do an excellent job of taking the sometimes arcane and almost always abstract language of the law and bringing it down to earth. The fact that Rahn, a well respected professor of music theory and musicology currently cross-appointed to the Faculty of Fine Arts and the Faculty of Liberal and Professional Studies at York University, argued that Canadian Copyright: A Citizen’s Guide would be suitable reading for undergraduates in a variety of courses and that “the whole book should be read by all Canadian academics,” testifies to its accessibility and the importance of its content.
The authors, like any critical commentators on controversial issues, do ruffle some feathers. I think that Peter D. James, Intellectual Property and Copyright Librarian at the University of British Columbia, rather overstated Murray and Trosow’s position when he said that “the authors mince no words in stating their own position on copyright law: it is, for the most part, a corporate conspiracy aimed at limiting the ownership rights of creators and the rights of consumers.” He quotes them saying: “Throughout history, it is the larger books trade―today the ‘cultural industries’ or ‘tech sector’―that has demanded expansion of copyright, often using the rhetoric of the author’s right to do so” (James, 2008). In my view, however, this is nothing but a plain statement of fact—no “conspiracy” needed. Indeed, Murray and Trosow take pains to sketch out the historical and philosophical origins of copyright, especially in the early case law that reflects the natural rights doctrines of John Locke and the later musings of the Utilitarians. Their account, brief as it is, is persuasive.
Also compelling is their mainly subtle message that, in my words, rarely has such a false slogan been offered than that which tells us (at least in modern Common Law traditions) that “the law is the law.” In fact, the law is not the law in any sense that would be congenial to philosophical idealists in the Platonic mode who imagine transcendental, eternal forms or archetypes that define the law, justice, or any other essentially contested concept in the clouds (where Aristophanes unceremoniously located Socrates) not only way above the Earth but also well above the “ivory towers” where scholars and aspirant intellectuals are sometimes thought to dwell. Nor, as political scientist Bob Cahill (2004) put it is it appropriate to think in simplistic terms and construe “the law as a kind of material or anthropomorphic object— stick to be ‘broken,’ a weight to be ‘upheld,’ a ‘ruler’ which, in the place of men, ‘rules,’ ans so forth.”
Rather, the law is socially constructed. It is mainly a product of its times and of the incessant patterns and shifts of social, economic and political power. Sometimes it may seem to lead public opinion and set down (or set aside) rules in ways that are just slightly ahead of their times (and, in so doing, elicit howls of complaint about “activist courts”). More often, it will appear to lag just slightly behind evolving social mores. In any case, it will reflect social life more-or-less as it is and it will especially act in general accordance with the preferences of those individuals and institutions that dominate what is commonly called the political economy.
Quite apart from any consideration of ontology, however, Murray and Trosow illustrate precisely how the law is not static, written on stone tablets and rendered immune from change. They show how the law is forever changing. It is a dynamic response to social evolution and, though adherence to the principle of stare decisis remains an important element in judicial reasoning, no one can doubt that the legislative and judicial branches of government have altered the substance of the law in extraordinary ways merely within the past few decades and especially since Canada adopted its Charter of Rights and Freedoms and gave “judicial review” a vastly wider scope than in earlier times. Nowhere is this dynamism more evident than in the emergence of intellectual property and its relationship to copyright.
As a result, ‘the law’ is not readily discernible, even to judges and attorneys. We may be able to read the “symbolic law,” consisting of statutes, judicial opinions, written constitutions and so forth. We may be able to hear the opinions of lawyers and others about who might be expected to prevail in ongoing or even future disputes. And, of course, we can witness the history of the law, defined by Cahill as “what courts do in terms of meting out or choosing not to mete out punishments in the name of the law.” These are all different kinds of phenomena and even people with intimate and detailed knowledge are occasionally surprised and sometimes mystified by emerging jurisprudence. Contrary to cynical opinion, the law is not an ass, but it can be stubborn as a mule or quite the opposite.
In the domain of copyright law, surprises are plentiful, the material interests of selected groups are in constant opposition and, frankly, the legislative process in Canada seems to lurch about trying to accommodate conflicting interests without great success. The current government, for example, has tried to mimic the corporate-friendly laws in the United States but, whether because of domestic resistance or sheer incompetence, it has failed to do so … so far. In this politically charged atmosphere, Murray and Trusow have plainly sided more with some groups (with a populist tilt) rather than the others (with a corporatist slant). James says that the authors espouse a “radical alternative to corporate demands,” whereas I see them merely striking a better balance among interests that, again in my view, have been pretty much controlled by dominant economic institutions. That, however, is as may be and probably reflects nothing more than our respective political opinions and the differing perceptions arising therefrom.
Where I do agree with James is when he says that Canadian Copyright Law: A Citizen’s Guide might not be a first choice for people seeking “a book of instruction or information for beginners or novices” on the technical aspects of copyright law. It is not a “User’s Manual,” a sort of “Copyright for Dummies.” It is, however, invaluable as the most comprehensive introduction to a complex and swiftly emerging field. It may not give all the answers in detail because, of course, there are few definitive and detailed answers to be given about all but the most obvious issues (e.g., no, you cannot generally make photocopies of the most recent edition of an entire popular textbook and distribute them free-of-charge to your students); nonetheless, Murray and Trusow will certainly help readers to gain an appreciation for the nature and process of copyright law and it will assist in formulating the proper and practical questions whenever a specific problem arises. Moreover, the book has developed and improved since the first edition and, I presume, we may expect a third when the Government of Canada passes newer and (we may only hope) better and clearer laws in this expanding field.
In the meantime, I believe that it would do no permanent harm to encourage college librarians and faculty members to undertake some serious discussion of the issues at stake. There should be no shortage of opportunities to engage in open, public discussion of impending copyright reform ... it’s coming! And, assuming that these discussions rise above the level of ill-informed gab sessions and take a more explicitly political form than the mere dissemination of fact sheets and fliers, then this second edition of Murray and Trusow should be required reading.
Incidentally, a few decades ago, a library technician at a local college read an internal document claiming that the entire collection of “videotapes” which contained hundreds of documentary films (mainly from the Canadian Broadcasting Corporation and the National Film Board) had been created in violation of Canadian copyright law and should no longer be provided to teachers seeking to use them in class. The young man, who was nothing if not eager to please his supervisors, methodical in his work habits, and proactive in his approach to his job, spent the next two days dutifully erasing the archive. As it turned out, the document had been premature and processes were already in place to deal with the alleged copyright violations. This news was of no avail to the technician in question, for he had assiduously eliminated the entire basis for his employment and was soon terminated with the same finality as he had wiped out hundreds of hours of valuable resource material.
Cahill, R. (2004). On how knowingly to condone an illegal act. College Quarterly 7(3). Retrieved November 26, 2014 from http://www.collegequarterly.ca/2004-vol07-num03-summer/cahill.html
James, P. (2008). Review of Laura J. Murray and Samuel E. Trosow Canadian Copyright: A Citizen’s Guide. Partnership: The Canadian Journal of Library and Information Practice and Research 3(1). Retrieved November 10, 2008 from https://journal.lib.uoguelph.ca/index.php/perj
Rahn, J. (2008). Comprehensive look at how copyright laws affect Canadians. CAUT Bulletin 55(5). Retrieved November 12, 2014 from www.cautbulletin.ca/en_article.asp?articleid=2159
Howard A. Doughty teaches Cultural Anthropology and Political Economy at Seneca College in Toronto. He can be reached at firstname.lastname@example.org