The ensuing furor has split along largely, but not completely, predictable lines: Open access (OA) activists at the militant end of the spectrum have hailed and even emulated Swartz, while more moderate OA supporters have expressed serious reservations about his actions. Peter Suber, a famously dedicated OA advocate, had already expressed grave concern over Swartz’s Guerrilla Open Access Manifesto of 2008, which lays out the principles on which he is alleged to have acted in this case. In an article in the Chronicle of Higher Education, Stuart Schieber, the director of Harvard’s Office of Scholarly Communication (and no fan of commercial scholarly publishing), characterized Swartz’s alleged behavior as “illegal, immoral, and ineffective.”
Let’s suppose, for the sake of argument, that the allegations against Swartz are proved and that he’s convicted. What would his case mean?
It seems to me that it raises a number of questions that have received insufficient attention up until now. These include:
Are the legal penalties provided for copyright infractions proportional to the actual damage caused by such infractions? U.S. attorney Carmen Ortiz, in announcing the indictments, said that “stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.” But stealing electronic documents by copying them is in fact very different from stealing physical objects. JSTOR’s security was breached, but JSTOR and its customers were not left with any less data or any fewer documents than they had before Swartz’s alleged act of piracy. When copyright is systemically breached, documents are copied, not stolen. What is taken away from the “owner” is not the content itself, but rather the exclusivity of control over content that makes selling access to it possible. Should the penalties for such actions be the same as those for actual larceny?
To what degree does it make sense to give network security itself the force of legal protection? This question was a matter of hot debate a few years ago, in the wake of passage of the Digital Millenium Copyright Act. To what degree should computer networks be treated like houses, and trespassers in them be indictable for the electronic equivalent of breaking and entering, regardless of what they do once inside? Many of the documents that Swartz is alleged to have illegally downloaded are actually in the public domain, and thus not subject to copyright. Should that make a difference, given that the charges against Swartz are not in fact charges of copyright infringement? Should it be illegal to defeat a lawfully-instituted security system in order to make lawful use of content once past the security system?
Does the current system of scholarly publishing currently exist to provide access to content, or to restrict it? Or, to put the question a bit differently, does it provide a net benefit to the world of scholarship by organizing, adding value to, and making possible the wide dissemination of scholarly work that would otherwise remain either obscure or unrecognized? Or does it create a net loss to scholarship by turning it into an economic commodity—and often a prohibitively expensive one at that? If the former, then it would seem that copyright, as traditionally defined, should be defended by those with an interest in scholarship. If the latter, then there is a case to be made that scholars should rise up en masse and cease participating in the current copyright-based, commercial system, and instead try to create a new one that does provide a net benefit. (Of course, creating and then maintaining such a system would almost certainly turn out to be more expensive and difficult than anticipated.)
Should the very concept of intellectual property be rethought—at least in the realm of academic scholarship? Most universities (at least in the U.S.) underwrite the creation of knowledge products that, functionally speaking, then remain the private property of the universities’ employees. There are some very good reasons for this arrangement, but it’s still something of a curious system, especially when the funds underwriting the creation of those knowledge products come (either wholly or in part) ultimately from public coffers. Personal copyright in the products is what allows scholars to transfer control to journal publishers in return for publication and the prestige that it brings. Of course, it’s true that publishers add significant value when they turn manuscripts into published articles—but is the value added proportionate to the cost imposed? And suppose it is; if the cost imposed is unsustainable, does it matter in practical terms whether the value proposition is a good one? (As I find myself regularly telling vendors and publishers regularly: $50,000 may be a bargain price for a Bentley, but if one doesn’t have $50,000 it doesn’t matter that it’s a bargain price.)
By posing these questions and suggesting that they need addressing, I may be giving the impression that I know what the right answers are. In some cases, I think I might. But I’m not confident enough in my own answers to assert them with any real boldness. Swartz’s alleged actions had no real practical impact; no one has been left with any more or less access to scholarship than they had before he made his raid on JSTOR, if he did. But in political terms, his case has hopefully softened the ground for a rigorous and fruitful national (and hopefully international) debate about the nature and role of intellectual property in the economy of scholarly communication.
(This post was originally published in slightly different form as a guest editorial in issue #254 of Serials-eNews, 16 September 2011. Adapted with permission.)