I would argue, though, that procuring a resource and placing it at the ready, to be drawn on if needed, constitutes “use.”
But I agree that reasonable minds can differ on the point.
I would further argue, though, that when you said, “There is no indication whatsoever that he used any of GS’s proprietary code anywhere,” there’s at least an implication that GS proprietary code was not involved in the incident, as opposed to simply not being used in the sense you now describe.
To the extent that this implication exists, I think it’s valuable to clarify that GS proprietary code was copied and made available for use…even if not “used.”
First of all, it was 8MB not 32MB. He transferred the same 8MB of code, four times.
And - 8MB of code is not “massive”. I am half way through working on a project right now. The code is 24MB so far. And that’s just the project code - standard libraries are not included. It will definitely surpass 32MB in the end.
“Use the code” has a very definite meaning for programmers. Having it sit on your hard disk, not included in any of your programs does not in any way constitute “use”.
The article works hard to try to add complexity to what seems like a rather straightforward story of someone taking something valuable that was not his to take, but it did not convince me that that complexity was relevant to the legal issues raised. I get that Lewis accepts Aleynikov’s account of his motivations, but I can also understand how a jury might take a different view.
That was the offer that was made if he would have pleaded guilty. Since he rejected that offer, if he is convicted on the new charges, he may again be sentenced to a prison term. In that circumstance, I suppose that it is possible that the state court could count his previous prison term toward time served, although there may be some obscure legal obstacles to doing so.
So you’re saying that the man’s innocence hangs on the minutiae that constitutes differences in possible definitions of a one syllable word, because context and precise meaning matter when the word “use” is applied to this very specific set of circumstances? Do I have that right?
Sure, sure. But since many who read these words are not programmers, I think it’s a great idea to clarify the meaning of “use,” and thus casual non-programmer reader are not left with an inaccurate impression. Right?
I realize the point of you starting this thread was to make the case that the justice system hasn’t caught up to modern business practices, but instead you’re doing a pretty good job of convincing me that it is routine for programmers to steal and break the law.
Why is the opinion of a casual non-programmer user on what “use the code” means relevant? Do you also think that a casual non-medical person should decide what “calculus” means in a medical case? Or “abduction”?
The appeals judge disagrees. Aleynikov was released and his sentence overturned because the judge said that the code that he took did not constitute a “stolen good”, and because (as I pointed out) the code was not “related to or included in a product that is produced for or placed in interstate or foreign commerce".
So now you’re saying that the definition of the word “use” does not come into play when deciding whether or not Mr. Aleynikov broke the law? That the standard definition can apply? Because earlier you seemed to be arguing that a different, perhaps more obscure, meaning should be considered.
Here was the language of post #3, in response to Tom Tildrum’s demur on the point raised in the thread title that Aleynikov was jailed “for nothing, really.”
This post purports to describe, for the readership of the thread, the actual facts of what happened. A parochial meaning of “use,” peculiar to the world of programming, does not convey clearly what happened. You don’t dispute that he copied proprietary code, and leveraged the existence of that code and his possession of it as a guarantee that he could deliver to his new employer a working system in six months. You mean to communicate only that, according to you, he never “used” the code in the sense of deploying it to a working test or production server.
So the point of my clarification is to inform the thread’s readership of what happened – to make clear that “use” means deploy as working code, as opposed to copy, possess, and rest assurances on.
The appeals judge already ruled that Mr. Aleynikov neither stole any goods nor used the code in any way that broke the law.
The definition I use is the standard definition. Claiming that source code that sits in some corner of hard disk and is not included in any program is being “used” is ridiculous.
It is not “peculiar to the world of programming”. It is common sense. Source code that is not included in any program you write is not “used”.
I definitely dispute the “leveraged” part.
There is no proof and no indication that he ever “used” the GS proprietary code in the sense of including it in any program he wrote after he left GS. No “deployment”.
No. “Use” means include it in your own code. Whether it is deployed or not. Can you show that that is what happened? Prosecution certainly didn’t.
[QUOTE=NYT]
Federal prosecutors depicted Mr. Aleynikov as a brazen crook who was “meticulous, deliberate and clever” in filching thousands of files and hundreds of thousands of lines of code from Goldman. He sought to use that code, prosecutors argued, as the building blocks to create a hedge fund trading platform at Teza.
The government’s strategy was to play to the jury’s basic sense of right and wrong.
“This is a case about theft and greed,” said Joseph Facciponti, the lead prosecutor, in his opening statement.
The government made much of Mr. Aleynikov’s deleting and encrypting various files after he took them from Goldman’s servers.
“Like a good thief, he covered his tracks, brushing aside his digital footprint,” Rebecca Rohr, a prosecutor, said in her closing remarks.
[/QUOTE]
They included details that, to a layperson, sound nefarious, but to a programmer seem completely typical. Uploading your code to an online repository is not “encrypting it and sending it to Germany to evade detection.” I’m working on an app right now that I just encrypted and sent overseas, call the cops!
In any case, the fact that the convictions were overturned says a lot about the government’s case. So here are the state charges.
Bolding mine. The first charge I think they can make stick, albeit in misdemeanor form. If they want a felony conviction out of this they need the second charge to stick, and to do that they need to show intent to use stolen code. And that’s what the Vanity Fair article is all about. You can call it “adding complexity,” but in this case, clarifying his motivations to counter the picture painted by the prosecution seems important.
My comments in this thread is that what Aleynikov did is standard practice among programmers. And, as the appeals judge agreed, it does not constitute a crime. GS’s prosecution of Aleynikov was purely malicious, with willing assistance from the feds.
A remaining question, though, is whether Aleynikov intentionally and wrongfully appropriated from GS code valued at over $2500. If he did, then his action violated NYPL § 156.30.
So you’re right – nothing Aleynikov did seems to be a federal crime. (Or, more to the point, it was not a federal crime at the time). But it does appear to violate New York’s state law.
Frankly, I don’t see what it matters whether or not something was used. It’s still theft.
And the appeals court ruling didn’t say that Mr. Aleynikov didn’t steal anything, just that his actions did not fall under the law that he was convicted of violating.
And I find your parsing of the one syllable word’s definition hilarious; that’s why I keep asking you to clarify your position on the matter.