How Can You Steal a Byte?

Sergey Aleynikov was a programmer for Goldman Sacks, one of the largest investment firms in the world. Aleynikov worked in the world of flash trading, the practice of making money on price differences that exist for portions of a second. Aleynikov was well compensated for his work but, like a lot of talented programmers, could leverage that talent to make even more money someplace else. The primary means of increasing your salary in this day and age seems to be to switch companies. Aleynikov, again, like most programmers, tried to take some of his work with him when he left. This is where things stopped being like other programmers. Aleynikov was arrested, convicted of theft in federal court, had the conviction thrown out, and was then partially convicted of illegal downloading in state court. This has obviously drawn a lot of attention within the tech fields with most people asking why this was a criminal case.

Several years ago I worked for a firm that hired top executives from one of its competitors to improve in an area that said competitor was eating our lunch in. Unfortunately, said executives’ plan to help was apparently to simply copy what they did for the competitor and slap a new label on it. During the resulting lawsuit, rumor had it that they found several boxes worth of the competitor’s material in the executives’ offices. The rest of us noted with cynical amusement when official correspondence on the matter went from “we stand behind our valued employees” to “valued employees? what valued employees? those crooks are on their own”. There was no real discussion of criminal charges, however, and there were none filed that I have been able to discover. This was a dispute between companies and those are largely treated as civil matters.

That appears to be the prevailing thought about this case: why was a civil matter brought before a prosecutor? And that is a perfectly reasonable position to have. This was an argument about breach of contract, at its heart, and you could certainly argue that even if some companies need the extra protection that a criminal prosecution provides, Goldman Sachs is not among those companies. (To steal from Eddie Izzard, that’s one saved Queen) However, there also seems to be a notion that because this was a computer program, that there should have been no question that a criminal charge was out of line. Code, goes the argument, is not “tangible”.

I am not convinced that is the case. Or, rather, I am not convinced that code is materially different than the boxes of materials hauled out of my once upon a time colleagues’ offices. Code is tangible in the sense that it represents some capture of work. if it si source code, it is analagous to a blueprint. If it is complied code, it is analgous to a working machine. In either case, it represents something more than just a collection of electrons; it is human thought made manifest. Aleynikov could ceetinaly have reproduced the code that he did for Goldman Sachs at his new employer without the aid of downloading either the source or the working programs. But it owuld have tken him time, mental effort and may not have been exactly the same as the code he originally wrote for Goldman Sachs. The code he took, then, isn’t that different forma blueprint or a marketing plan or a sales presentation. It may not be able to be tasted, in the words of the defense lawyer, but it has a presence. More importantly, it represents the conversion of mental effort into a reusable artifact. Surely, that represents some level of “tangible”?

Code has value. Code represents the work it took to convert the mental idea of a solved problem into a reusable item that actually solves the problem. Pretending that such things do not have inherent, intrinsic value because they live in memory or are easily copyable without damaging the original is a blind spot in modern technology fields. The prosecution of Aleynikov was wrong because it involved a case with no extraordinary circumstances that would require the power of the government to ensure the smooth working of the markets. But the idea that code has intrinsic value in and of itself is not.