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The general narrative is, by now, pretty well known: in July of this year, Aaron Swartz, a renowned Internet activist and former Safra Fellow at Harvard, was arrested on charges that he had broken into a secured network closet at the Massachusetts Institute of Technology (MIT), hooked up a laptop computer to the institution’s wiring, and downloaded roughly 4.8 million documents from the JSTOR journal database in massive contravention of both MIT’s network-access rules and JSTOR’s terms of use. Although JSTOR settled the matter with Swartz to its satisfaction, federal prosecutors elected to pursue an indictment on charges of wire fraud, computer fraud, and unlawfully obtaining information from a protected computer. Swartz has also reportedly been charged with felony breaking and entering. He’s now free on $100,000 bail, awaiting trial and facing up to 35 years in prison.

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.)

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Rick Anderson

Rick Anderson

Rick Anderson is University Librarian at Brigham Young University. He has worked previously as a bibliographer for YBP, Inc., as Head Acquisitions Librarian for the University of North Carolina, Greensboro, as Director of Resource Acquisition at the University of Nevada, Reno, and as Associate Dean for Collections & Scholarly Communication at the University of Utah.


14 Thoughts on "The Aaron Swartz Case: What Does It Mean?"

Does the current system of beef production currently exist to provide access to beef, or to restrict it? It does both. It provides access if you can afford it, otherwise not. Costs have to be paid. On the other hand, and as you point out, my writing is not beef. A thousand people can read the same article, but they cannot eat the same steak. But the costs still have to be paid and scholarly publishing costs billions of dollars a year. It is easy to ask questions when no answers are included. If people have an alternative to the present system let them enter the market. But theft is not an alternative.

David, nowhere in my posting did I defend, nor would I ever defend, the theft of intellectual property. (And if you’ve read my previous SK postings, particularly this one: http://bit.ly/qC9ONl, then you’ll know that I agree with you about the reality of publishing costs and the fact that they must be covered one way or another.)

That said, you’re right that it’s easy to pose questions without offering answers. I was kind of thinking the same thing as I submitted the piece, but I was sensitive to the risk of posting something so lengthy that no one would want to read it. I’m thinking that maybe my next post will be a discussion of what I think the right answers are to these questions. This case seems to me a very important one, and I think it deserves lots of public discussion.

Thanks Rick. Let me make clear that I am not criticizing you, merely trying to frame the debate you raise. I am criticizing those who want free change. This case is indeed important, because it is not simple theft, far from it. But like most protest actions, it provides no remedy.

I think the answer to your last question is that the very concept of intellectual property is in fact being rethought. It is a strange system, and I think you make this clear. I just gave IEEE the copyright for a paper, for which I got nothing back except a presence in their publication. On the other hand, in many venues I would have to pay for this publicity.

I agree with Dr. Wojick — theft is not an alternative. But I think it’s time for our institutions of higher education to wake up to the new world. Scholarly publishing does not have to cost billions of dollars a year and access to intellectual property does not need to be restricted simply for the purpose of recouping costs. The bulk of publishing can be taken to the web with open access provided. Sadly, too many institutions, and the departments and units within those institutions, want to grab a dollar at every opportunity.

First of all, the “institutions” make no money here. More importantly, the journals are doing far more than putting stuff up. That is the fundamental fallacy. If that is ll they did they would have been knocked off long ago. You need to understand what is being paid for.

Beth, I’d love to know how much you think it should cost, what scholarly publishers should trim in order to reduce expenses by billions, and how to recoup what you deem as acceptable costs.

Rick, I love your articles, there is always so much to chew on. Your articles are the chateaubriand of the Scholarly Kitchen.

I find the OA vs. for-profit debate so sterile I get cross-eyed just reading the titles of articles on the subject. In simple economic terms, the value of scholarly work is worth precisely what the market will pay for it – no more no less. That is simple Economics 101. Whatever the economic model used to distribute scholarly works, this axiom will never change.

The tiresome debate between the for-profit publishers and OA advocates about price and cost is counter-productive. In a capitalist system, the cost of a product or service bears no relationship to its price. The price is set by the market, the costs are determined by the unique circumstances of the provider or manufacturer. The difference between the two is profit and or loss.

In the case of scholarly publishing, the difference between price and cost is larger than it would be because the state grants a legal barrier; copyright. The OA movement is a natural (and beneficial – in my view) reaction to the higher prices which are a consequence of that protection. There is no debate to be won or lost here. The OA movement should be judged on one criteria and one alone. Has the movement (at the very least) slowed the annual rate of inflation in scholarly publishing? If it has, it is a success. If it has not, then alternatives need to be found and perhaps one of those alternatives is a revision of the copyright laws which would allow less protection for the owners of copyright. If owners were granted fewer protections you could rest assured that price (and costs) would come down.

As for the answers to the questions listed above:

In America, we are all presumed innocent until proven guilty. Even though I agree that Schwartz allegedly broke the law and stole private property – as Rick and David both pointed out, this is not beef and the owner (at no time) lost possession of the property in question. However, a crime is not defined by the mere act of possession. Schwartz committed a crime because he allegedly violated a valid statute passed by the American Congress and signed into law by the President. If he in fact did break a valid law he should be judged by a jury of his peers. If I were sitting on that jury (after hearing all the evidence) I would pass judgment according to the facts. If found guilty, our system requires that Schwartz pay a price for violating the law.

If I were the judge, I would use my good judgment in offering a light sentence – for this appears to be a stupid act of youthful exuberance and as you say Rick, possession of the property never left the hands of the owner. It is in no one’s interest, including JSTOR, that Schwartz suffer a stiff and very public sentence. A stiff sentence may call into question the very fairness of copyright law. In the end, maybe that was the point of Schwartz’ alleged activity.

Loved the Bentley analogy, by the way, so true, so true…

The documents may be in the public domain and may be available elsewhere, but JSTOR is under no legal or moral obligation to provide at no charge all of the PD documents they have collected. If collecting the documents was easy wouldn’t Aaron have done that instead of taking the risks and going through the effort he did to get them by fraud? It’s not easy, certainly not as easy as heading down to your nearest open campus and using a script to slurp them all up. That’s why the collection has value and why research institutions are willing to pay money to get access to the collection.

The institution pays JSTOR so it’s researchers don’t waste their time searching for the papers they need. Aaron’s actions led to MIT being cut off from JSTOR for several days while they tried to stop the attacks. People couldn’t get access to the documents the legitimately needed. People at JSTOR and MIT had take steps to stop Aaron’s attacks and protect the access of their legit users. That’s real damage he caused.

Finally, with all of his talent, Aaron could have taken productive steps to achieve his goals of open access to research. A better plan would have been to build a site and culture that lets researchers share their research freely and fix what he perceives as a broken system. He took what he saw as an easy way out and is going to learn his lesson the hard way.

Lorne, you might want to read my follow-up posting (http://goo.gl/fb/RG06w), in which I propose some answers to the questions I posed above. I think you’ll find that I largely agree with you.

Unless he published the copies of the documents or used them maliciously in some other way, I can’t see that he has infringed copyright laws. Accessing them shouldn’t be a crime. They are not missing so how are they stolen? The originals still exist. The dollar value of a copy is nothing unless it is used in some way and generated a value.

As noted in the article, he has not been charged with copyright infringement, rather wire fraud, computer fraud, and unlawfully obtaining information from a protected computer.

You’re right that in this specific case, copyright is only partly at issue — as I mention in my follow-up posting, copyright infringement isn’t even part of the indictment. But copyright clearly looms over the issues that _are_ central to this case. It’s all about control over content: who should have that control, which rights should be reserved exclusively to which parties, and (most importantly in this case, from my point of view) what are the appropriate penalties for those who breach the rights of others.

As far as copyright goes: if (by his alleged actions) Swartz intended only to create personal copies to keep for himself, he might have a fair-use defense against a pure copyright claim. But that defense would be weakened by the wholesale and systematic manner in which he copied. And if he intended to redistribute the works to others (which seems highly likely if the allegations are true) then the fair-use defense falls apart completely. And of course, this is all separate from the actual charges against him, which are more along the lines of breaking and entering, both physical and virtual.

As Rick suggests in passing, the solution lies within the powers of universities now–with no change in copyright law–to implement, viz., by treating publications of faculty prepared in connection with their academic work as “work made for hire,” thus owned legally by the universities as employers. If they chose to exercise this control, they could then leverage their centralized power to negotiate licenses with commercial publishers en masse, which would result in better deals and lower prices. Or they could ramp up their own publishing infrastructure of university presses to take over the job that commercial publishers are now doing and save the profit margin of 30% that is reported for some of the largest STM publishers. They would also thereby keep all costs and benefits internalized within the system of higher education and not be paying premiums to outside shareholders of for=profit companies, which drains vast sums of money away from the system. When will university administrators step up to the plate and meet this challenge head on? They seem to be eager to negotiate deals with commercial companies in the arena of intercollegiate athletics; there are probably even bigger financial benefits to be realized from regaining control of the scholarly publishing system.

As for Swartz, he strikes me as being another rebel like LaMacchia, who famously uploaded software to his bulletin board so that others could freely download it–an act that at the time was not illegal because LaMacchia did not personally profit from the activity. Congress later passed the No Electronic Theft Act (1997) to make this kind of activity illegal: http://en.wikipedia.org/wiki/NET_Act. The difference, of course, is that in this case Swartz did evidently break some laws already on the books regarding trespass and the like.

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