View 758 Sunday, January 13, 2013
AARON SWARTZ, RIP
Aaron Swartz was a Harvard University student who used his computer skills to collect a large number of scientific journal articles from JSTOR, the institution which controls the publication and release of most academic journals and which is also trying to achieve control of many historical publications. Many of those publications were scanned in the Google activity which is now stalled in litigation; I have seen no criminal charges brought by the Obama Department of Justice against the operatives who did the Google scans.
Swartz was arrested by the Department of Justice in July, 2011 and charged with wire fraud, computer fraud, malicious computer damage, and a number of other federal felonies, and sought to fine him $1 million and send him to federal prison for 35 years.
Swartz had downloaded some 5 million academic journal articles. His contention was that JSTOR collected money for access to academic journal content, but did not pay the authors or copyright holders, and made it prohibitively expensive for millions of potential readers to access results of publicly financed research. JSTOR is a non-profit corporation.
The government contends that Swartz intended to release the documents in some kind of pirate activity, although he had not done so at the time of his arrest. Since he was a fellow at Harvard/MIT he had legal access to all the documents, so his ‘criminal intent’ in downloading them seems to be the essence of the charges against him.
After Swartz’s arrest the JSTOR corporation dropped all civil charges against Swartz (possibly in reaction to the indignation of a great number of Internet users). The Obama administration continued prosecutorial activities, widely publishing its intention to make an example of Schwarz, and emphasizing that he could be jailed for 35 years. “Stealing is stealing” said one US Attorney.
On Friday, January 11, 2013 Aaron Swartz was hanged in his Brooklyn. NY apartment. It was quickly pronounced suicide. Swartz reportedly had been depressed by the possibility of a near lifetime in Federal prison for downloading but not releasing the academic journals.
Swartz’s death will undoubtedly spark new debates on intellectual property and the purpose of copyright. In particular, aggressive copyright protection of articles describing and reporting scientific activities largely funded by public or tax exempt sources, may not serve the constitutional purpose of copyright law:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
JSTOR has a complicated membership and access fee structure. It is not cheap, although members of institutions often get free access (apparently Swartz was one of those). JSTOR states emphatically that it is not a publisher, but it is often the only means of access for a number of academic journals and historical works. It pays no royalties to authors or copyright holders of the material it makes available for money (but which, it insists, it does not publish).
After Swartz’s arrest JSTOR testified that Swartz had returned all the documents, had published none of them, and there was no reason for prosecution. http://www.wired.com/threatlevel/2011/07/swartz-arrest/
JSTOR is not a cheap operation, but a great deal of the content JSTOR charges for access to are papers reporting publicly supported research.
Making scientific, engineering, historical, and general academic research results, most funded by publicly supported institutions and often by public grants, is an important means of promoting the Progress of Science and the useful Arts; and the authors of most of those works benefit from the publication and promulgation of their work in academic journals. Of course they are entitled to publish their works through university presses and or private publishers, and such works are protected by copyright in the usual manner; but academic publications to be cited in other scientific studies need to be available to those who want to verify the work. Research repetition and verification is an important part of the scientific method. Restricting access to the publications cuts deeply into criticism, a perhaps unintended but still unfortunate result.
Swartz contended that JSTOR, having acquired a monopoly on electronic distribution of much of academia’s publication, made it expensive to obtain access to much publicly funded research, and of course it paid nothing to the authors or copyright holders although charging the users high prices.
Academic journals have always been expensive. They were traditionally printed by letter press, and the publication and mailing costs were enormous. When electronic publication became possible through the publicly financed original Internet backbone which connected academic institutions, costs of journal publications were not noticeably reduced. CDROM and electronic publishing programs took over from typewriters and letter presses and made the actual production costs of journals a great deal smaller, but subscription fees generally did not drop accordingly. Some went up.
It is not at all clear that JSTOR has passed those cost reductions down to the public that uses them, nor has there been any great incentive to do so. The government continues to inject money (through grants, but more by making loans that make students debtors for life) and academia absorbs all that money and raises prices. Some University systems have taken advantage of the computer revolution to reduce publication and distribution costs, but in many cases this is not reflected in the access costs to those outside the system, even though much of the funding for academic research comes from public money.
Aaron Swartz challenged all this. He may well have been wrong to do so in the way he chose; but he faced criminal charges and penalties greater than he would have faced had he taken physical copies of the journals, or for that matter, had he been charged with rape.
For more on this see the EFF memorial https://www.eff.org/deeplinks/2013/01/farewell-aaron-swartz and the law blog published at the time of the arrest and updated today. http://www.litigationandtrial.com/2011/07/articles/series/special-comment/aaron-swartz-computer-fraud-indictment/
Most of my readers will know that I am no opponent of the legitimate copyright ownership of intellectual property. I make my living off sales or donations for access to my intellectual property. Authors, artists, composers, inventors, and other intellectual property creators have moral and ethical rights to their creations, and it is in the interest of society to protect that interest. This was considered worth its own clause in the Constitution of 1787. On the other hand, taxpayers and others who support public institutions and research have some rights too: particularly when the actual creator of the intellectual property are not being compensated, and in fact are often losing deserved esteem from citation of their works and general promulgation of their papers. Writers write to be read. Samuel Johnson observed that no man but a blockhead ever wrote for anything except money, but that isn’t quite true. Some do write to be read, and in the case of scientific research, widespread promulgation is essential to the scientific process.
It is not at all clear that the JSTOR monopoly is the best way to achieve the distribution of scientific and other academic research efforts. Perhaps it is, but I have not seen the case made. At the very least they might publish the salaries and perks of the executives and directors of JSTOR and ITHAKA. Indeed, one wonders why they do not, since they are quite proud of being non-profit corporations.
There might also be some explanation of why Swartz was considered such a threat to the nation that the Department of Justice threatened him with 35 years’ imprisonment. He wasn’t Bernie Madoff. He wasn’t Nidal Hasan, or Bradley Manning. But the Administration considered him an enemy of the people and used a great number of public resources (40% of which were paid for with borrowed money) to hound him even though the ‘victim’ (JSTOR) declined to press any charges.
It’s all very curious. Perhaps now we will learn more. Aaron Swartz, RIP
A sad day for the exchange of knowledge
From a NYTimes obituary:
In an online broadside directed at prosecutors, Mr. Lessig denounced what he called the federal “bullying,” and wrote, “this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.”
Of the indictment, he said, “The fact that the U.S. legal apparatus decided he belonged behind bars for downloading scholarly articles without permission is as neat an indictment of our age — and validation of his struggle — as you could ask for.”