Aaron Swartz indicted

by Henry on July 19, 2011

The NYT story is here.

Aaron Swartz, a 24-year-old programmer and online political activist, was indicted Tuesday in Boston on charges that he stole over four million documents from the Massachusetts Institute of Technology and JSTOR, an archive of scientific journals and academic papers. (Read the full indictment.) The charges were filed by the United States Attorney for the District of Massachusetts, Carmen M. Ortiz, and could result in up to 35 years in prison and a $1 million fine. In a press release, Ms. Ortiz’s office said that Mr. Swartz broke into a restricted area of M.I.T. and entered a computer wiring closet. Mr. Swartz apparently then accessed the M.I.T. computer network and stole millions of documents from JSTOR.

The indictment is here – a petition supporting Aaron can be found here. I can’t pretend to be at all impartial about the prospect that Aaron could serve serious jail time for this – he is a good friend, as well as an active member of the CT community. It looks as though he has some support from the library community – the petition page has a statement from James Jacobs, the Government Documents Librarian at Stanford University. Furthermore, it claims that the “alleged victim has settled any claims against Aaron, explained they’ve suffered no loss or damage, and asked the government not to prosecute.”

{ 242 comments }

1

nick s 07.19.11 at 6:43 pm

Let’s assume that the idiots of LulzSec will turn their attention to JSTOR; if you have any journal articles that need fetching, do it now.

At least the US Attorney didn’t state a monetary value for those articles, because it would be funnier to academics than the estimates given for drugs hauls.

2

PHB 07.19.11 at 6:54 pm

I wonder just how long the academic journal model can continue in its current form.

All the value is supplied by the authors and editors for free. The result is then published in the form that is least accessible to the intended community and at great cost to them.

The underlying problem is that the journals are no longer the mechanism for exchanging information within the field, they are merely a mechanism for determining academic advancement.

3

Henry 07.19.11 at 7:03 pm

bq. I wonder just how long the academic journal model can continue in its current form.

There is a lot of messy debate here that is ready to explode. I wouldn’t be surprised if one of the reasons that JSTOR didn’t want to go ahead with this was precisely because it feared having a cause celebre, with an articulate, intellectually attractive and selfless defendant, explode out of it. And I confidently predict that there is going to be one very unhappy prosecutor who has no idea of the major political shitstorm that she is kicking up by doing this. Aaron is very rightly beloved by a whole lot of people – he’s spent the last several years providing unpaid help for a variety of good causes.

4

imajoebob 07.19.11 at 7:12 pm

I find Demand Progress’ post more than a little disingenuous. “As best as we can tell, he is being charged with allegedly downloading too many journal articles from the Web.” That’s complete bullshit, and for a group that’s (supposed to be) dedicated to exposing the truth, it’s pathetic.

Swarz is (allegedly) a thief. Nothing more. He broke into a wiring closet. He modified a computer network he didn’t own or have permission to change. He downloaded copyrighted material with the intent to redistribute it without the permission of the author. Worst of all, he interfered with the ability of other academics to complete their work. He took down MITs access to JSTOR. Anyone who was trying to finish their work by the end of the term lost days, possibly weeks, of research time. I think MIT should ask their students if Swarz has “settled” any damage he may have caused them.

If Mr Swarz is such a believer in his cause then he must also be willing to suffer the consequences for his actions. If he wants to be a “martyr” for his cause, good luck to him. I could get all dramatic (much like the Demand Progress petition) and ask if his tampering may have interfered with someone working on a cure for Leukemia, and that the 4 or 5 days delay may result in the deaths of an additional 300 children. Instead, I’ll just take the selfish route and say if he screwed up my ability to finish my thesis in time for a December graduation, I’d punch him in the nose. And then demand 20 grand to pay for the extra semester.

5

Matt 07.19.11 at 7:19 pm

JSTOR’s customers are academic librarians and their institutions. They’re not going to substitute JSTOR_2010_FULL.rar from Rapidshare for real subscriptions. The people who do collect such things are data packrats and students from lower-income countries who can’t easily get articles through their institutions. People in those groups never paid $25 for an article or thousands for a journal subscription anyway. The connection between copyright violations and lost sales is not completely straightforward for digital music, and here it’s nonexistent.

The main damage here seems to be indirect. Articles were downloaded at top speed over a fast network, so that JSTOR’s servers were bogged down and MIT users were temporarily cut off as part of JSTOR’s defense. I don’t know exactly how much staff time was occupied at JSTOR and MIT dealing with the consequences. Had he downloaded articles at 1/100 the speed, and used a network tunnel instead of hand-carried drives to get the data off the MIT campus, he apparently could have completed the archival process without alarming JSTOR or repeatedly sneaking into a closet.

6

nick s 07.19.11 at 7:23 pm

I could get all dramatic (much like the Demand Progress petition) and ask if his tampering may have interfered with someone working on a cure for Leukemia, and that the 4 or 5 days delay may result in the deaths of an additional 300 children.

No, you wouldn’t get all dramatic. But let us find you some smelling salts now that you’re sprawled on the fainting couch.

Based on the indictment, Swartz was an idiot, but no more idiotic than the JSTOR model of academic community-gating; I agree with Henry that those gatekeepers really don’t want to have to deal with a case that involves potentially deep disclosure into where those fees go.

7

Cian 07.19.11 at 7:30 pm

This is quite good:
http://www.wired.com/threatlevel/2011/07/swartz-arrest/

Any ideas as to what he was going to do with these articles? I couldn’t care less if he released them in the public domain, but he does normally think bigger than that.

8

Cian 07.19.11 at 7:32 pm

The people who do collect such things are data packrats and students from lower-income countries who can’t easily get articles through their institutions.

And people from outside the academic community who don’t want to pay whatever the outrageous going rate is per article.

9

Matt 07.19.11 at 7:46 pm

And people from outside the academic community who don’t want to pay whatever the outrageous going rate is per article.

In that case (and I speak as someone outside the academic community) you can generally ask an acquaintance with academic access to email you a copy of the article. Someone who wants one article is unlikely to download a multi-gigabyte journal collection to get it. It is true, though, that it costs less to download and store 10 gigabytes of data than to buy a single copy of a 10 page article from JSTOR.

10

imajoebob 07.19.11 at 7:53 pm

Hy nck s (#6),
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nd rjctd tht (brly) plsbl cndmntn f Swrz fr my wn slfsh n (thgh f my kd hd Lkm, wld pnch hm n th ns, jst n prncpl) . f y’v vr lvd n th nvrsty lbrry fr cpl mnths wrkng t fnsh yr thss, y knw th nclclbl vl JSTR (nd systms lk t) prvd cdmcs. Hvng t g fr dys wtht bng bl t cmplt rsrch s crpplng (nd f wr th lbrrn, ‘d pnch Swrz n th ns). nd Swrz bvsly dsn’t gv <>n sht bt hs “fllw” cdmcs. H’s (llgdly, f crs) slfsh, slf-ggrndzng lttl bstrd.

11

Cian 07.19.11 at 7:55 pm

You can, apparently, download individual volumes and issues from various places on the web.

12

elm 07.19.11 at 8:01 pm

Swarz is (allegedly) a thief. Nothing more.

A thief? Does JSTOR no longer have those articles since Swartz took them?

He is (alleged) to be a data pirate, but data piracy is not theft: Theft takes the original. Data piracy makes a copy.

13

Phil 07.19.11 at 8:10 pm

There may be a case for what Aaron did, but some of the defences I’m seeing make my hackles rise. What he did wasn’t simply “looking up too many articles” and it wasn’t intrinsically harmless: it had the potential to destroy JSTOR’s business model, or (to put it another way) to destroy JSTOR. Anyone who wants to justify *that* – who’s confident that Aaron’s plan would have led to the journal access provided by JSTOR being reliably replaced by something better, and that the ecology of academic publication would have been unharmed (or replaced by something better) – can go ahead. But saying that Aaron’s a good guy and he didn’t do any harm – although these are probably both true statements – doesn’t really close the case for me.

14

Cian 07.19.11 at 8:13 pm

Phil, it does rather depend upon what his plan was. There’s no evidence, and given his history no reason to assume, that he was simply going to put a giant rar on rapidshare.

15

ben w 07.19.11 at 8:29 pm

given his history no reason to assume, that he was simply going to put a giant rar on rapidshare.

Yeah, he seems more like a bittorrent guy.

16

nick s 07.19.11 at 9:05 pm

In that case (and I speak as someone outside the academic community) you can generally ask an acquaintance with academic access to email you a copy of the article.

Thief! Thief! (Count me among those outside the academy who has, let’s say, borrowed a JSTOR login from time to time.)

Anyone who wants to justify that – who’s confident that Aaron’s plan

Whoa, Nelly. The indictment doesn’t talk of any wider plan, and I think it’s an inference too far to suggest Swartz was actively engaged in a Data Liberation Front raid on JSTOR, as opposed to the creation of a personal mirror in a nerdishly antisocial fashion.

17

Peter 07.19.11 at 9:19 pm

On the topic of conflating theft and piracy, one detail that I find particularly annoying is the way all the media accounts refer to JSTOR having “gotten back” the articles from Swartz. They never lost the articles in the first place! And in any case, what does it even mean to “give back” a digital file?

18

Walt 07.19.11 at 9:26 pm

imajoebob’s first comment may be the most hysteria-inflected thing I’ve read on the Internet this month. And this is the all-hysteria-all-the-time Internet we’re talking about.

19

Matt 07.19.11 at 9:29 pm

I didn’t realize until I read the Wired article that this is the same person who brilliantly liberated millions of pages from PACER a few years ago.

In 2008, the federal court system decided to try out allowing free public access to its court record search system PACER at 17 libraries across the country. Swartz went to the 7th U.S. Circuit Court of Appeals library in Chicago and installed a small PERL script he had written. The code cycled sequentially through case numbers, requesting a new document from PACER every three seconds. In this manner, Swartz got nearly 20 million pages of court documents, which his script uploaded to Amazon’s EC2 cloud computing service.

While the documents are in the public record and free to share, PACER normally charges eight cents a page.

The courts reported him to the FBI, which investigated whether the public records were “exfiltrated.” After in-depth background searches, a luckless stakeout and futile attempts to get Swartz to talk, the FBI dropped the case.

If neither MIT nor JSTOR were out for blood, is it possible that this prosecution is taking place because of lingering resentment over PACER?

20

nick s 07.19.11 at 9:30 pm

I’ll correct myself: the indictment alleges that ‘Swartz intended to distribute a significant portion of JSTOR’s archive of digitized journal articles through one or more file-sharing sites’ (para 33) but doesn’t include anything beyond that, unlike the description of jacking into the network, which is covered in great detail. Proof of intent presumably waits until trial, but in context, it feels like a tack-on.

21

andthenyoufall 07.19.11 at 9:37 pm

@17 – Here’s an example of how you do it.

http://www.27bslash6.com/overdue.html

22

matth 07.19.11 at 9:41 pm

“The indictment doesn’t talk of any wider plan, and I think it’s an inference too far to suggest Swartz was actively engaged in a Data Liberation Front raid on JSTOR, as opposed to the creation of a personal mirror in a nerdishly antisocial fashion.”

See the bottom of page 3 (the last sentence in item #11) — the indictment definitely alleges that Swartz planned to redistribute the data. I’m not sure what you meant by “wider plan,” but I assume it’s this re-distribution that Phil meant could threaten JSTOR’s business model.

I respect Swartz quite a bit. His PACER gambit was spectacular. But he indisputably committed a crime, here—and his behavior went well beyond violating the TOS of a website.

In a sane world, access to academic journals would be free or close to it. Even in a sane world, though, what Swartz did would be a serious crime. He physically broke into someone else’s property (the MIT computer equipment rooms), repeatedly, for the purpose of gaining unauthorized access to their network, and he caused substantial harm to others by interfering with JSTOR’s service.

23

matth 07.19.11 at 9:43 pm

Sorry — the “indisputably” above (along with the rest of the comment) assumes that the facts alleged in the indictment are true, which we obviously have no way of evaluating.

24

Guest 07.19.11 at 9:45 pm

I find it amusing that this guy who has railed against the (“unfair”) influence of corporate insiders on the political process and public institutions will now no doubt benefit from–and, indeed, probably primarily rely on–the influence of well connected lefty Harvard and Stanford academics to try to get out of this.

Of course, we hate “corrupt” influence on public institutions, until we need some influence for our cause celebre. Let’s get a trial by jury and judgment on the merits.

25

Phil 07.19.11 at 10:06 pm

I hadn’t heard about the PACER exploit – and ‘exploit’ is the word – but I genuinely don’t know whether to cheer or boo.

Killer quote!
While the documents are in the public record and free to share, PACER normally charges eight cents a page.

Killer quote, take 2:
the federal court system decided to try out allowing free public access to its court record search system PACER at 17 libraries across the country

PACER normally charges eight cents a page

Did abusing the system in the name of free access make it more or less likely that PACER would be rolled out more widely?

26

Cian 07.19.11 at 10:17 pm

What he did wasn’t simply “looking up too many articles” and it wasn’t intrinsically harmless: it had the potential to destroy JSTOR’s business model, or (to put it another way) to destroy JSTOR.

Having given this a little thought, this doesn’t fly. JSTOR’s business model is based entirely on institutional access (unless things have changed, they don’t allow individuals to subscribe). Institutions are not going to use pirated material, so it really isn’t going to materially affect that. And I really doubt that JSTOR make any money on individual downloads of articles; in fact I’d love to see figures on how many they sell that way.

Now whether this justifies whatever Aaron was doing is a different question. I think stating that it would have destroyed JSTOR’s business model is a bit hysterical.

Also, I’m not sure why anyone’s assuming he was planning to re-distribute articles. I’ve certainly considered writing something similar myself in the past (with a slower download speed, for obvious reasons), for archives I have legal access to. Not for piracy reasons, but just because I got fed up with the slow speed of the access systems.

27

Cian 07.19.11 at 10:21 pm

the indictment definitely alleges that Swartz planned to redistribute the data.

Well yeah, but it would wouldn’t it. I imagine they’ll have a tough time proving it.

28

Tangurena 07.19.11 at 10:23 pm

I suspect that the reason he’s being prosecuted, even though the alleged victim asks not to, is that our new Solicitor General has been a representative of the RIAA, and that also explains the “file sharing” claim.

The Solicitor General determines the legal position that the United States will take in the Supreme Court. In addition to supervising and conducting cases in which the government is a party, the Solicitor General’s office also files amicus curiae briefs in cases in which the federal government has a significant interest in the legal issue. The Solicitor General’s office argues on behalf of the government in virtually every case in which the United States is a party, and also argues in most of the cases in which the government has filed an amicus brief.

Source

The whole case seems bizaare until you notice the RIAA connection. If the prosecution fails, expect this to be pitched as just another “what were they thinking” case. If the prosecution succeeds, expect this to be used as a precedent for prosecuting file-sharing.

29

roac 07.19.11 at 10:36 pm

No. Or, at any rate, extremely unlikely. For the SG’s office to lobby a US Attorney to prosecute a particular criminal defendant would be way, way outside the normal course of events. The SG hears about cases after there is a judgment in the district court, not before.

30

jen 07.19.11 at 10:37 pm

And all those academics who don’t want their articles locked away in JSTOR: put pre-prints or post-prints in your institutional repositories, in disciplinary repositories, or on your own web page. Stop blaming JSTOR because you are too lazy to put things up or find out about the licenses you signed (in some cases, you still own the copyright and can get access to this material). Please talk to a librarian and find out what you should NOT sign when you publish! And support open access and get your department chairs to support it. This especially means you, scientists.

It would be a lot more interesting if he’d attacked Elsevier!

31

matth 07.19.11 at 10:44 pm

“I imagine they’ll have a tough time proving it.” None of the crimes he’s being accused of require that he have intended to redistribute the data. Of course we have no means of assessing the evidence against him right now.

If he didn’t want to re-distribute, his alleged behavior was really extraordinary. Cian, you mention having contemplated something similar because you were frustrated by slow connections; but would you have been willing to take the risks he’s alleged to have taken — physically breaking into an equipment room, for example?

Frankly, if he shut down MIT’s JSTOR access because he couldn’t be bothered to ask JSTOR for access for some sort of corpus analysis, then he’s a jackass.

32

Guest 07.19.11 at 10:58 pm

So the indictment does allege that he intended to distribute:
“33. Swartz intended to distribute a significant portion of JSTOR’s archive of digitized
journal articles through one or more file-sharing sites.”

But I agree it’s not clear from the indictment (and I’m no criminal law expert) whether intent to distribute is an element of either of the crimes. Some of them include intent to defraud. I’m not sure if distribution is necessary for them to satisfy the defrauding element. Perhaps because he might have a valid claim to possess the files as a student affiliated with JSTOR they need distribution as well?

Why would they allege it if they don’t need it for any of the elements?

Of course, Swartz will probably argue that he just wanted to analyze the articles similar to his Stanford Law Review project a few years back, and that might get him to reasonable doubt. But it seems highly suspect, as JSTOR points out, that he didn’t just ask JSTOR for this information, as they provide the corpus to researchers. He even resumed his activities instead of going to JSTOR after JSTOR shut down the service to the entire MIT campus.

33

Phil 07.19.11 at 11:02 pm

Institutions are not going to use pirated material

Institutions aren’t going to pay for anything that’s freely accessible. They won’t recommend staff use WikiJournalLeaks, they’ll just mention it in a footnote to the memo announcing the withdrawal of JSTOR access.

34

Matt 07.19.11 at 11:22 pm

Institutions aren’t going to pay for anything that’s freely accessible. They won’t recommend staff use WikiJournalLeaks, they’ll just mention it in a footnote to the memo announcing the withdrawal of JSTOR access.

The empirical results are already in: False. Electronic pirate journal collections have been available for years in science and engineering. Where are the memos that academic libraries are (e.g.) dropping access to Angewandte Chemie or Chemical Reviews and hinting that their patrons should instead download from the stickied thread on chemport.ru?

35

Mountain Fighting 07.19.11 at 11:30 pm

The U.S. Govt taxes individuals / businesses then takes those dollars and funnels it into the Universities to pay Academics their salaries, benefits and pensions to perform research and write articles that are secretly published? I say refund the tax payers their tax dollars or make the articles public domain so we can atleast see where our dollars are going. This whole system of we take your money and secretly re-distribute it has to stop. It is not a free market system as advertised.

36

nick s 07.19.11 at 11:56 pm

If he didn’t want to re-distribute, his alleged behavior was really extraordinary.

Swartz’s career in tech, from being a credited co-author of RSS 1.0 at the age of 14 onwards, has been sort of extraordinary.

37

Enda H 07.20.11 at 12:05 am

I don’t know the guy and don’t have an emotional connection to the case, but the magnitude of proceedings here really sounds ridiculous.

If Aaron had kidnapped and raped a few strangers, he’d be looking at something approximating 35 years. Is downloading boring academic output and maybe giving it away for free really considered a crime on that scale?

Stepping outside the details of this particular case, maybe this should be a crime that carries a jail sentence. I can see the argument for that. But anything beyond 6 months or a year seems completely disproportionate.

38

Antti Nannimus 07.20.11 at 12:18 am

Hi,

Information wants to be free, as in beer, but stay the hell outta the wiring closet.

Have a nice day,
Antti

39

Robert 07.20.11 at 12:47 am

I have reasons to be partial to Aaron Swartz.

I started reading the indictment. Am I correct in thinking MIT’s connection to JSTOR was cut for some time because of JSTOR’s reactions, not because Swartz’s downloading effectively had a side-affect as acting as a Denial Of Service attack?

40

x.trapnel 07.20.11 at 2:15 am

re: 28/29 – there’s no reason to think this has anything to do with the SG, but this is nevertheless about pursuing the priorities that have been set from within the Justice Department. And these priorities are deeply fucked up. The Sensible Moderate position is now apparently that the criminal law is a valid tool–just one among others, nothing particularly special about it–for protecting incumbent publishers’ business models against the threat posed by the possibility of free distribution. Even in this thread, we’ve had, what, three people either actively techno-hippie-punching or hemming and hawing on the sidelines (note to Phil, since you seem uncertain about where your sympathies ought to lie in the PACER incident: they ought to lie with the guy harassed and surveilled by the FBI for the terrible crime of making uncopyrighted US caselaw available to those who are legally bound by it).

Again: this is fucked-up. Particularly in the case of academic journals, what we’re seeing is the tail of distribution not just wagging the dog of production but slamming it against a wall repeatedly.

41

vivian 07.20.11 at 2:40 am

There is a grand MIT tradition of “spelunking” or getting into unauthorized places on campus. Usually more physically impressive spaces than a closet – think deep steam tunnels, unlikely roof spaces, etc. but perhaps the cyber equivalent? Police and the various deans are very tolerant (even proud) as long as the perpetrators are non-destructive and not overly reckless. There is another tradition of free access to computers and information. But I can imagine getting frightened by the thought of all those amicus briefs, even if JSTOR is being reasonable.

42

mitgrad 07.20.11 at 4:38 am

I got my doctorate at MIT, and while vivian is right that MIT is more tolerant than the average institution of minor pranks and non-destructive trespassing, what Swartz is alleged to have done goes way over the line. One important factor is that he is not part of the MIT community! He has an affiliation at Harvard, but not at MIT. The tolerance she mentions has never extended to welcoming random strangers to break into MIT property.

If the alleged facts are correct, his actions also went way over the “non-destructive” line, both in terms of making long-term alterations to an MIT router for personal gain, and more so, for causing multiple multi-day outages in JSTOR service to the entire campus. Note that Swartz kept up his activities even after it was clear that they could result in campus-wide JSTOR outages. Even if you believe JSTOR’s policy of doing so was wrong, that doesn’t absolve Swartz from continuing his actions once those stakes were clear. I’d be pretty pissed off at him if I were still at MIT and had my work disrupted by his ‘harmless’ antics.

He could have at least had the decency to inflict the collateral damage on his fellow Harvard community members, instead of using MIT as a convenient staging base.

43

Taghkanic 07.20.11 at 4:58 am

It seems likely that Swartz wanted to analyze these academic papers much in the same way as he did in a prior project on legal ones… For example, to tease out funding relationships. The notion that he was going to just bulk-republish them all doesn’t wash.

44

Eileen 07.20.11 at 5:26 am

As an academic, I can also suggest Open Source Journals as a way to break out of the absurd system we currently have (certainly if you had to make one from scratch now, it would not resemble this gatekeeper system).

As soon as I’m free to publish where I like (read: tenure-track job, or possibly later), I will make it a point to ONLY publish in the OS journal for my field.

45

sciencelibrarian 07.20.11 at 5:40 am

re: I could get all dramatic (much like the Demand Progress petition) and ask if his tampering may have interfered with someone working on a cure for Leukemia, and that the 4 or 5 days delay may result in the deaths of an additional 300 children. Instead, I’ll just take the selfish route and say if he screwed up my ability to finish my thesis in time for a December graduation, I’d punch him in the nose.:

Just so we’re all clear, JSTOR stands for Journal Storage. That means there is not a whole lot of recent content in there, and certainly not a lot of recent science content. So if you were basing your cure for leukemia off of articles in JSTOR you would almost certainly be doing a terrible job, unless maybe it was a historical research project?

Furthermore, JSTOR archives are just that — scans of journals that by and large were widely held — in paper — in university libraries. Many of those backfiles might still be available in storage at MIT itself, or certainly down the road at one of the other dozens of libraries in the area. They might even be in some *other* digital subscription archive that MIT has. My point? While yes, losing access is inconvenient, JSTOR isn’t the only place to get this content. And if you desperately needed an article — to save a life, to finish your thesis — I promise you that if you bothered to ask a reference librarian for help they would get on the phone to their colleagues elsewhere in the country and get you a copy of that article asap.

46

Joel 07.20.11 at 5:56 am

I have to say, this is not a very endearing way to rally support to your cause.

47

Cian O'Connor 07.20.11 at 8:03 am

Until more info comes out, I’m in two minds here. The way he did this seems anti-social and unnecessary. If he was trying to make a point about JSTOR, then this was a strange way of doing so. If he just needed the bulk journals for research; there are easier ways to do it (and I’m not sure why you would; JSTOR stuff is quite old). I’m partial to Aaron for various reasons, so I’m suspending judgement, but its hard given the known facts so far.

On the other hand, the charge and the possible jail time are ludicrous.

48

Cian O'Connor 07.20.11 at 8:06 am

Phil: Institutions aren’t going to pay for anything that’s freely accessible. They won’t recommend staff use WikiJournalLeaks, they’ll just mention it in a footnote to the memo announcing the withdrawal of JSTOR access.

1) Pirated journal collections have been available for many years now, and I haven’t noticed my library recommending that I visit hacked-journals.ru.

2) The library would have to provide a means for their patrons to easily access this stuff, otherwise it would be inaccessible to the vast majority of patrons (a footnote in a memo isn’t going to cut it for JSTOR, or much else). At which point they’re right in the firing line for encouraging copyright infringement (not to mention complaints from academics when new issues aren’t available). Its not going to happen. Especially given that JSTOR access is not very expensive for libraries.

Phil I respect you on a number of issues, but I think you’re out of your depth here.

And incidentally, if he had grabbed everything from Elsevier and planned to redistribute it, I’d be cheering him all the way. I hate those bastards.

49

JustMy2Cents 07.20.11 at 8:21 am

quote from sciencelibrarian:

“Just so we’re all clear, JSTOR stands for Journal Storage. That means there is not a whole lot of recent content in there, and certainly not a lot of recent science content. So if you were basing your cure for leukemia off of articles in JSTOR you would almost certainly be doing a terrible job, unless maybe it was a historical research project?”

Historical data can be used in many ways when doing research. You may want to show trends, for example. You may want to compare the results you have with results that others have had. So, even though the data in JSTOR wasn’t recent it doesn’t mean it’s of no value to a researcher. It can be very valuable.

MIT is a research Institute. Research is its lifeblood. MIT depends on donations from the government and private parties to fund a great part of its research. To to be denied access to these journals was a *big* deal to those scrambling to make their deadlines.

50

Phil 07.20.11 at 10:28 am

OK, here’s where I’m coming from. I’m an academic at an institution with a stronger focus on teaching than on research; the university’s paper journal holdings and the access to electronic journal aggregators it provides are relatively limited, both in scope and in date range. Funding is tight at the moment and growing tighter; in the time I’ve been there, there have been two consultations on junking under-used paper journals and terminating under-used online subscriptions. (My reply to the second of these was that saving money this way was inherently a bad idea – after all, what are you going to do the next time savings are needed?) One of the points made in the consultation on online sources was that the University has subscriptions to sources which can be accessed through the local library system; the document specifically noted that it couldn’t be guaranteed that the local library system would always offer those sources, but recommended withdrawing them anyway.

Aaron Swartz is a bright bloke; if he was planning to free those journals from the stifling embrace of JSTOR, I very much doubt they would have been launched on the world with a URL ending in haxx0rs.ru. If those journals could have been hosted by an open-access server with the credibility of Wikipedia – or even the credibility of WikiLeaks – do you not think that cash-strapped institutional librarians would go for it? I think it would be awfully tempting.

My worry is that that wouldn’t be the end of the story. Some projects like this succeed; others die, get bought out, or get bought out and closed down. I don’t know the story of the PACER hack, but it seems at least arguable that it will have set back access to legislation rather than promoting it.

It’s partly a problem with solo actions – they don’t have the hinterland to ensure the follow-through goes to plan. If Swartz was part of a movement I’d be much more sympathetic.

51

tomslee 07.20.11 at 11:34 am

Like others, I have had some e-contact with Aaron and my prejudices are strongly in his favour.

I suspect his motivations were as Taghkanic @43 says – analyzing large data sets is one of Aaron’s skills – but it would definitely be good to see a clarification of that because discussion of piracy brings all kinds of probably-irrelevant issues into the case.

52

Frowner 07.20.11 at 2:46 pm

(Just a side note on the “JSTOR isn’t really a gatekeeper since you can always email a friend with access to get a copy of an article” argument:

I’m not an academic but I have academic interests. So I have some experience with this precise issue.

1. You have to know that you can email people to get copies for you – if you’re really, truly non-academic but you’re trying to research something on your own, you may not know this. And I do have several friends who are working-class audodidacts for whom this idea was novel and who were perfectly qualified, intellectually, to read the articles they wanted to read.

2. You have to have academic friends. Again, not everyone does. Most of mine are casual connections online. How much can I lean on those folks for any serious volume of article-getting?

This whole thing is a question of cultural capital – if you’re working class and self-taught, research is substantially less accessible to you than it is to middle class people with connections and know-how. This is a small thing, but it’s definitely one of the ways that academia preserves itself as an elite space. (No matter how non-elite an adjunct may feel, you’re still miles above a career nanny or someone who does seasonal labor – two of my self-taught friends in question.)

And I suspect that there’s a perception among academics that working class people don’t need/can’t understand academic research anyway, so it’s a moot point that they don’t have the connections to request a PDF. )

53

Bijan Parsia 07.20.11 at 2:59 pm

(I have a slight acquaintance with Aaron as well, mostly back in the RDF/RSS days, so when he was considerably younger. I’ve not chatted with him in quite some time.)

It just seems weird.

First, I don’t see how he can avoid some legitimate opprobrium, albeit somewhat minor (certainly compared to the charges): He broke into MIT’s network and physical grounds and then effectively performed a DOS attack on JSTORs servers (crashing some of them), which then denied JSTORs service to MIT (survivable, but very very very very annoying). The latter would have been a problem even if he were trying to scrape a public website: poorly written web crawlers are bad. It’s well known how to write them well (and I just cannot believe Aaron didn’t know how, or at least the risk; indeed, if the description of events is accurate, he deliberately didn’t make his crawl friendly).

So, orthogonal to the terms of service/potential copyright violation issue, this was just poor practice. What might make it justified is either 1) there was a civil disobedience/protest point or 2) there was a time urgency (e.g., capturing vital information before it was censored).

It’s hard to see how either situation is the case. Most analyses of JSTOR could have happened by a slow crawl over, say, a year, or could have started in collaboration with JSTOR, or, heck, could have worked with a random sample. So, if a large sample were needed (because of tiny effects), one could wait. If the effect is tiny, it’s hard to see how it would be urgent. It’s hard to see how it’d be urgent in anycase given the nature of JSTOR’s archive.

If it were a protest stunt, well, it sucks as such, afaict. The Demand Progess press release looks rushed (David Segal’s analogy is sheerly laughable) and doesn’t make reference to a stunt (which a planned protest would do).

So, I’m really at a loss to make sense of it. That being said, given the minimal damage caused, I’d hope for leniency.

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Bijan Parsia 07.20.11 at 3:07 pm

@52 Send them (or come) my way. I’m flaky though :)

Lots of universities offer access to locals under certain restrictions (and they should offer with as few restrictions as is feasible). For example, the University of Manchester offers access to the public for a modest annual fee for borrowing privileges (£88), though electronic access is limited to within the library. Alas, even the latter is limited (JSTOR’s not on the list). I’m sure the library staff would be helpful though.

You could bootstrap yourself up to visiting scholar status. Obviously, this requires building relationships with academic staff, but that would be a good thing anyway.

55

Phil 07.20.11 at 3:18 pm

Bijan – you’re working with Matthew Horridge? Say Hi from me. Is Sean still working there? The year I spent working with OWL-DL hasn’t left much trace on my c.v., and has nothing to do with my current position teaching Criminology at another (nearby) university, but it was fun.

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Phil 07.20.11 at 3:24 pm

some legitimate opprobrium, albeit somewhat minor (certainly compared to the charges)

For the avoidance of doubt, I do endorse this. If the initial appeal(s) had been worded along the lines of “we’re not too sure what Aaron thought he was doing, but whatever it was they shouldn’t have thrown the book at him” I’d have agreed – the reaction has been way over the top.

57

Britta 07.20.11 at 3:27 pm

Robert,
It appears JSTOR services were cut to MIT because both at times JSTOR attempted to block his IP address and at times his volume of downloading crashed JSTOR’s servers.

I am in general with the people who have no problem with his larger project but am not terribly enthralled by it execution. Was it so necessary to extract such a large volume of material in such a short amount of time so as to compromise access to JSTOR for MIT’s users?

I also agree with those who point out that in the scheme of things, JSTOR is not really the problem, but rather that lies with academic journal publishers and the prices they charge. JSTOR has nothing to do with setting those prices however, they merely provide a compiling and search service to institutions. Without JSTOR, articles would be just as pricey and if anything even less accessible. Also, yes, one can work around JSTOR, but at best it’s a headache, and at worst, you still won’t have access to a necessary article. It’s not going to cause the death of 300 children, but it can affect grant applications, papers and journal articles (I know of grant apps being rejected because the applicant didn’t cite a single source the reviewer thought pertinent. Not having JSTOR would make it easier for older articles to slip through the cracks in your lit review, for example.)

Finally, why didn’t he do it at Harvard? Did he think he had less chance of getting caught at MIT or did he not want to disrupt his own services?

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mitgrad 07.20.11 at 3:37 pm

Finally, why didn’t he do it at Harvard? Did he think he had less chance of getting caught at MIT or did he not want to disrupt his own services?

This continues to be a real sticking point for me (if a parochial one). If you are going to engage in some sort of principled cyber-activism that could potentially lead to hassles with your ISP or even legal troubles, you do not do so by hacking into your clueless neighbor’s wi-fi!!! Let alone by climbing over the backyard fence and hiding a laptop in their basement. In what universe is that courageous or ethical?

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Cian O'Connor 07.20.11 at 4:18 pm

Aaron Swartz is a bright bloke; if he was planning to free those journals from the stifling embrace of JSTOR, I very much doubt they would have been launched on the world with a URL ending in haxx0rs.ru.

Yeah, but given the copyright isn’t is, it would always be illegal. That means it would have to be hosted somewhere friendly (hard), or involve filesharing/torrents (minimising accessibility). Plus any university in the US whichl linked to it would run fowl of the DMCA. And you bet they’d be checking on university libraries, if the site achieved sufficient visibility. I get what you’re saying, but I simply don’t see how anything like that would be practical, or possible.

I get where you’re coming from on library subscriptions, that this is a larger problem unfortunately. Part of it is simply economics (the pound fell, making foreign subscriptions more expensive), and part of it is because bastards like Elsevier charge a fortune for access to their journals. I forget what is now being charged for stuff like Science, but it is outrageous. (£50K maybe. I remember it being an astonishingly large amount of money).

Currently we have a situation where journals are controlled by rentiers (Maxwell was one of the first to realise this), who are basically maximising rents. Elselvier, Kluwer, etc. On the other hand, I don’t particularly associate JSTOR with this; they just need to open up access a bit, but they are mostly one of the good guys.

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Cian O'Connor 07.20.11 at 4:20 pm

Also, the more I think about this, the more baffled I am by what Aaron thought he was doing. I mean seriously, how hard is it to write a web crawler that downloads an article every 10 seconds. And as an act of civil obedience it makes little sense, and it does seem very anti-social. But then none of this seems to fit his general style. Weird.

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Bijan Parsia 07.20.11 at 4:42 pm

@56, Hi Phil!

Yes, I do work with Matthew. In fact, I’m his co-supervisor for his PhD. His viva is next month :) If you are nearby, you are welcome to come to the post viva party.

Sean’s still here as well.

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Bijan Parsia 07.20.11 at 4:46 pm

@60.

It’s clearly not that he couldn’t write a friendly crawler, but that he deliberately didn’t want too since he threw more hardware at the problem. Which is extra weird.

I suspect he just made an extended bad call, which happens to all of us. Again, some leniency would be the obvious path.

If they try to crucify him, then that’s another story altogether.

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Anderson 07.20.11 at 5:12 pm

The U.S. Govt taxes individuals / businesses then takes those dollars and funnels it into the Universities to pay Academics their salaries, benefits and pensions to perform research and write articles that are secretly published?

Well, the feds and the state governments. But yes, this always stuns me. ANY journal article funded directly or indirectly by the feds should be free online.

Of course, the chump change it would take to have Library of Congress or somesuch set that up would enrage the Bandar-Log who now hold the majority in the House.

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lars technica 07.20.11 at 5:15 pm

I have a strong hunch that the purpose of the massive download was to analyze the statistical connections between corporate sponsorship and research findings. Swartz did this in the past.

Just a little Spidey-Sense…

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Jeremy Fox 07.20.11 at 5:25 pm

Commentary from the generally-thoughtful Kent Anderson at Scholarly Kitchen:

http://scholarlykitchen.sspnet.org/2011/07/20/a-bizarre-approach-to-accessing-jstor-earns-federal-charges-for-an-internet-activist/

As Kent (and some posters here) have noted, several aspects of what Swartz is accused of look odd if his goal was to make an ethical point. If your goal is to make an ethical point, why do you need to download so many files, do so by physically breaking into a university with which you have no affiliation, why would you go to great lengths to avoid getting caught, and why would your organization (DemandProgress.org) make the bizarre claim that what you did is analogous to checking books out of a library? I’m with Kent, if this was supposed to be some kind of civil-disobedience-like protest or public stunt it looks completely bizarre (and so far I haven’t heard any more plausible justifications either)

Kent also notes that some of Swartz’s supporters (such as John Wilbanks) seem confused about the difference between “open access” and “free access”. “Open access” typically is paid for upfront by authors; PLoS ONE (now the world’s largest science journal) is a prominent example. JSTOR’s business model is a mixed one, but much of its content is content which publishers or JSTOR itself paid to digitize, and which JSTOR spends money to maintain and service.

All of this is of course orthogonal to the question of what the appropriate penalty would be if he is in fact guilty as charged, and to the question (which frankly is much more challenging and multifaceted than Swartz seems to think it is) of precisely who ought to pay precisely how much for the aggregation, distribution, and filtering of exactly what information in the online era.

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x.trapnel 07.20.11 at 5:59 pm

I suspect he just made an extended bad call, which happens to all of us. Again, some leniency would be the obvious path. … If they try to crucify him, then that’s another story altogether.

Look: there are complicated discussions to be had about proper judgement in doing the sort of research-cum-activism Swartz pursue, and it looks certain that he made a mistake here. But I’m just baffled at the way people seem to be ignoring the fact that one party–the United States Government–has already acted here, and is declaring its intention to send him to prison. The idea that we should just wait to see if he’s convicted, and only afterwards whine about the sure-to-be-unjust severity of the sentence, ignores the fact that the decision to prosecute already represents the exercise of almost complete discretion. And yes, I do suspect the fact that a separate branch of our security services, the FBI, had already decided he was a troublemaker, played into this.

The idea that, since the law’s on the books, it would be elitist and against the Rule of Law ideal to forego prosecution here, is superficially appealing but entirely ignores the way that the criminal law actually functions in the United States: we massively overcriminalize broad act-descriptions, and then rely on prosecutorial discretion to keep the consequences from getting too absurd. Does it work? Well, no, as our overall incarceration rates show, and this case illustrates.

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roac 07.20.11 at 6:21 pm

we massively overcriminalize broad act-descriptions, and then rely on prosecutorial discretion to keep the consequences from getting too absurd

OK, fine. I look forward to seeing a formulation under which breaking, entering, and physically tampering with someone else’s computer network is not a criminal act. Or do you think that should be prohibited in some case, but not this one? Draw us a line here.

And yes, prosecutorial discretion is problematic in many ways, but do away with it and what you will inevitably get is not fewer prosecutions, but more. Look what happened when we did away with judicial discretion in sentencing.

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MyName 07.20.11 at 6:29 pm

Okay, this is obviously a silly thing for people who are not in MIT or not Swartz to get worked up over. But what I don’t get is this conflation of “JSTOR” with “Academic Publishers”. JSTOR is a non-profit aggregator service that basically keeps digital copies of academic journals so that librarians don’t have to keep their own. JSTOR doesn’t own any of the copyrights and don’t really have a dog in the fight when it comes to the breakdown in the publishing model since, even if these were all open source or public domain, many of the libraries would still want to contract with someone they can rely on to store and organize the data in a useful fashion.

Putting the entire JSTOR archive on bit torrent doesn’t threaten their business model because there’s still no way to guarantee you’ll find what you need or that it’ll even be there if you need it next year.

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x.trapnel 07.20.11 at 6:39 pm

I was unclear on that last comment, I suppose. I didn’t mean to open things up to a broader discussion of whether the US should move to a system less dependent on prosecutorial discretion, though perhaps it should (other countries have less, and less prosecutions; but they’re also different in many other ways).

What I meant was rather: given that discretion plays a central and legitimate role within our system, no, I do not think that what Swartz is alleged to have done ought to result in the indictment we’re seeing. You shouldn’t try to put someone in a cage for that. Thinking you should–that the server downtime, inconvenience to others, and ToS violations justify, whether in a retributive or deterrent sense, depriving a human of their most fundamental liberties–is, to my mind, a sign that we’ve become a truly cruel society, one in which human dignity is just not highly valued.

I don’t want to get too deeply into where exactly one draws lines about putting hackers into prison, but christ, think of all the recent hacking scandals we’ve seen–you know, those that involve private financial or personal information, that sort of stuff. If you just think about it for a minute, it should be clear that “tampering with someone’s network” covers a vast range of things, only some of which involve the kinds of serious harms to others we typically reserve the criminal law and the threat of prison time for. And “overloading servers to get at academic articles” really isn’t in that ballpark.

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Matt 07.20.11 at 6:44 pm

Currently we have a situation where journals are controlled by rentiers (Maxwell was one of the first to realise this), who are basically maximising rents. Elselvier, Kluwer, etc. On the other hand, I don’t particularly associate JSTOR with this; they just need to open up access a bit, but they are mostly one of the good guys.

The commercial publishers like Elsevier are the worst, but scholarly societies and JSTOR still seem to be in the same ballpark of evil. The scholarly societies like the ACS still lobby against open access movements and the prices for single-article access for non-subscribers are within a factor of 2 of the vilest commercial publishers. In the case of JSTOR, who shoulders the blame for an 80 year old article from the American Journal of Mathematics, 10 pages long, priced at $24? That’s what JSTOR offers to non-subscribers.

The outrageous pricing is especially notable for archives. Whatever arguments you can make about all the labor and expense required to publish articles, it was already covered a long time ago for paper back issues. The articles on JSTOR are just scans of paper, and they don’t even have full-text search because the articles lack OCR. There’s no abstracts either. It’s simply scans of paper published a long time ago with a little bibliographic information.

They’re charging $24 for access to 10 pages of material whose authors, reviewers, proofreaders, and typesetters are all long dead — not that those people would get a cut of the $24 even if they were still living. The one-time cost to make the initial scan is about 10 cents per page, assuming that they use American workers like the Internet Archive does. Assuming 100 kilobytes per scanned page in the delivered article, the cost to electronically store and deliver 10 pages is in the neighborhood of 1/100 of a cent. The price is completely disconnected from costs.

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Matt 07.20.11 at 6:49 pm

Addendum: Apparently JSTOR does provide OCR and full text search for at least some of its journals, though this hardly changes the costs. I was basing the “no OCR” claim on their back files of the Transactions of the Philosophical Society, which appeared OCR-free in the PDFs I had access to.

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Bijan Parsia 07.20.11 at 7:06 pm

Look: there are complicated discussions to be had about proper judgement in doing the sort of research-cum-activism Swartz pursue, and it looks certain that he made a mistake here. But I’m just baffled at the way people seem to be ignoring the fact that one party—the United States Government—has already acted here, and is declaring its intention to send him to prison.

Well, several parties have acted…Aaron first, obviously, but also Demand Progress. Pretty strange things have been said in both directions (STEALING TEH GLOBAL MIND!!! vs. ARRESTED FOR CHECKING OUT BOOKS?!?!?). I still am not clear what happened and what he was trying to do. Prima facie, the likely best case scenario is a certain degree of vandalism. The damages alleged are “at least” $5000.

I would hope that in the worst case that the legal proceedings would at worst end with a sentence commensurate to the actual damages. Given Aaron’s character etc. I would further hope that leniency would tailor the actual sentence of something like community service.

But I’ve no idea what’s going to happen. I feel pretty confident that Aaron will have top notch legal representation and political support. So I’m modestly confident that he’s not going to be crucified.

If the situation changes so he does seem likely to be crucified then, as I said, the situation will be different.

I do agree that the hacking/piracy laws are ridiculously awful. Unfortunately, Aaron’s case doesn’t look like a good poster child given the vandalism aspects. (That’s part of the it’s a poor stunt.)

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Phil 07.20.11 at 7:06 pm

Again, “defend Aaron Swartz because the law is being used with malice aforethought to destroy his life” is a call I would sympathise with strongly*. “Defend Aaron Swartz because he’s a great guy and journal subscriptions are ridiculously high and hey, what did he even do that was even wrong?” just gets my back up.

I would love for more people to read my book. I hate the fact that it’s currently priced out of the reach of anyone except institutional buyers. But I would be seriously peeved if somebody scanned & torrented it – not because of the loss of royalties to me (which are not huge) but because of the negative impact on the publisher. Replace the academic publishing system with something better and we’re in business, but until someone does that – and ‘someone’ in that case is not going to be one person – the effects of hacking in the margins will be unpredictable.

Cian @59… mmmyeah, I may have been catastrophising a bit.

*And one which could be generalised. We lock up far too many people for far too long on this side of the Atlantic, never mind what goes on in state & federal institutions over there. I only found out recently that two former members of the Weather Underground are still serving 75-year sentences. (Not much chance of a pardon from this President, either.)

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Sebastian H 07.20.11 at 7:12 pm

I’m pretty sure you can find better examples than the Weather Underground, they are in jail for armed bank robbery and actually completed murder. If you want to highlight unfairly long sentences I’d suggest looking at possession of cocaine or pot in “intent to distribute” amounts.

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Bijan Parsia 07.20.11 at 7:23 pm

What I meant was rather: given that discretion plays a central and legitimate role within our system, no, I do not think that what Swartz is alleged to have done ought to result in the indictment we’re seeing. You shouldn’t try to put someone in a cage for that.

Perhaps I’m just a bit jaded, but I’m still interpreting this as a bit of “adversarial kabuki. Of course, if it turns out to be an FBI vendetta for the earlier stuff, or a “We’ll show them hackers”, then that’s total crap. OTOH, if Lessing plea bargins community service…well, Aaron already does tons of community service voluntarily, so I think that’s appropriate.

Thinking you should—that the server downtime, inconvenience to others, and ToS violations justify, whether in a retributive or deterrent sense, depriving a human of their most fundamental liberties—is, to my mind, a sign that we’ve become a truly cruel society, one in which human dignity is just not highly valued.

Is it the kind of offense or the degree that’s the matter? Suppose, JSTOR or MIT can show “real” damages of $5000…what do you think is appropriate? I certainly think that there’s no scenario where 35 years is anything but utterly risible. And a $1 million fine is way way over the top (unless, as is perhaps likely, it will be covered by donations and judges take that into account…I don’t know). A casual peek around suggests that in many states, physical vandalism (such as graffiti) costing more than $400 (say CA) can cost you a year in jail for your first offense!

Now, proper valuation of the damages is certain a legitimate point of contention. But surely, a DOS attack can cause significant financial problems (see the Amazon fail) thus is in principle in this space.

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x.trapnel 07.20.11 at 7:43 pm

Now, proper valuation of the damages is certain a legitimate point of contention. But surely, a DOS attack can cause significant financial problems (see the Amazon fail) thus is in principle in this space.

Here again, you seem to be arguing that because something in a similar juridical category, but much worse substantively, could deserve real punishment, we shouldn’t be at all concerned that a specialized task force led by the Secret Service is targeting an activist with a history of harassment by the FBI due to something that, we seem to agree, is fundamentally about a few thousands dollars of server downtime inconvenience. I just don’t agree. It’s possible that, due to Swartz’s connections, he’ll be able to fight this and get out of this with little permanent damage. But this is part of a broader trend, visible in many different parts of the US government, to make the protection of incumbent content firms’ business models through law enforcement a federal priority. We can see this in the PROTECT-IP act in Congress, in the ICE domain name seizures, in the insistence by the Library of Congress’ new Register of Copyrights that the fundamental question is effective enforcement–it’s across the board.

This isn’t just about a one-off case of prosecutorial overreach: this is policy.

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Bijan Parsia 07.20.11 at 7:51 pm

Here again, you seem to be arguing that because something in a similar juridical category, but much worse substantively, could deserve real punishment, we shouldn’t be at all concerned that a specialized task force led by the Secret Service is targeting an activist with a history of harassment by the FBI due to something that, we seem to agree, is fundamentally about a few thousands dollars of server downtime inconvenience.

Dude. I’m neither doing that nor seeming too. If you look at the paragraph before that, what I’m doing is crystal clear (note the comparison with comparable cost physical vandalism). I would very much appreciate if you would stop misreading me so horribly.

I’m not sure why trying to understand what he actually did or what the actual goal was is tantamount to throwing Aaron into the oubliette. If you want to argue that the indictment is not mere adversarial kabuki, feel free. I think you can do that without groundlessly accusing me of not caring about Aaron or absurd laws with grotesque sentencing. Thanks!

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rea 07.20.11 at 8:28 pm

People who aren’t lawyers may not grasp that (1) 35 years and a million dollar fine is the potential punishment for the worst possible case of commission of this crime imaginable–it’s not what his guy will get, even if convicted as charged (2) initial charges are where plea bargaining starts–therefore, the prosecution always starts by charging high.

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Henry 07.20.11 at 8:32 pm

bq. Replace the academic publishing system with something better and we’re in business, but until someone does that – and ‘someone’ in that case is not going to be one person – the effects of hacking in the margins will be unpredictable.

Couldn’t much the same criticism be made of many of the Italian lefties who you talk about in the book? I’m asking not to be annoying and trollish, but because I think there might be a plausible connection here.

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x.trapnel 07.20.11 at 9:04 pm

I’m glad Henry asked that, because I was curious about that, too. (Though I haven’t yet read your book, due to the cover price–despite Manchester UP’s own page leading with a blurb urging folks to “Steal this book!”, it has not yet appeared on the pirate repository I’m most familiar with, alas.)

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x.trapnel 07.20.11 at 9:05 pm

(I also think there are interesting connections to be made between this thread and the neoliberalism & left politics thread, but I’m feeling too muddled-headed right now to make them.)

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matth 07.20.11 at 9:54 pm

To follow up on what rea said, I think a plausible guidelines calculation based on the facts alleged in the indictment would come up with under 5 years total. (That’s valuing the loss at a few tens of thousands of dollars; I’m not sure how to value the loss here, and the guidelines calculation depends heavily on that amount.) I believe these counts would all be sentenced concurrently.

I’m not a criminal lawyer, and the guidelines are complicated, so please take my calculation with a grain of salt. Obviously the guidelines are only advisory — though if anything, I would expect that to cut in this defedant’s favor. And for what its worth, I think 5 years would be ridiculously harsh in this case.

My point is just that the guidelines are much more relevant than the 35-year statutory maximums all the news stories are quoting.

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Phil 07.20.11 at 11:51 pm

Henry – I’ve said more than once (including the comment you’re responding to) that the fact that this is one guy acting off his own bat makes this exploit tactically fragile, which in turn makes it strategically unreliable and highly debatable politically.

I don’t see any contradiction with my more positive assessment of the Italian ultra-left. I think what people don’t realise about that scene is just how big it was – much bigger than its counterparts in most other countries (what did we have in Britain – the Angry Brigade?) I’m reading a book at the moment about the (American) George Jackson Brigade: six people. Sure, Weather was bigger than that, the BLA was bigger than that, but not much bigger. If you read about the origins of Italian armed groups you’re routinely reading things like “…subsequently merged with group X, which brought together factory-based collectives in the central Turin area”. Armed groups regularly took plural names – Nuclei/Cells/Collectives. Membership of the Red Brigades (plural!) ran into the hundreds. And all these armed groups – an armed ‘scene’ of a few thousand serious activists – rested on (& indeed relied on) a much bigger galaxy of legal and semi-legal radical activity.

We are far, far short of that level of mobilisation, and I’m deeply suspicious of technical fixes (“sure, it’s only one person, but look how much one person can do!”)

On another point:

better examples than the Weather Underground

No, not really. I think (and it’s not an original thought) that you can tell a lot about the level of civilisation of a state precisely from how it treats the worst, most unforgiveable offenders. I don’t think armed robbery involving the killing of police officers is anything other than a heinous crime, but I find the idea that it merits a whole-life sentence to be grotesque.

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Bijan Parsia 07.21.11 at 12:58 am

No, not really. I think (and it’s not an original thought) that you can tell a lot about the level of civilisation of a state precisely from how it treats the worst, most unforgiveable offenders.

I don’t necessarily disagree, but I’m pretty unclear on why this would be so. I can think of a couple classes of possibility:

Constitutive: Two states which are otherwise exactly the same could be on radically different levels of civilization based solely on how they treat the worst offenders. (Ok, that’s extreme, and it doesn’t differentiate between how many offenders or class of offense, etc.) I don’t think it’s so plausible and to the degree it’s mobilized, I’d suspect hyperbole. Reasonable hyperbole, perhaps.

Empirical: Treating the worst offenders poorly is a reasonable predictive of other problems.

Counterfactual: Even if everything else happens to be ok, the treatment of the worst exposes the “deep structure” or propensities of the civilization. You sometimes see this as a measurement of “depth” of commitment to principles or norms. (Twain’s Hadleyburg springs to mind.) But this seems perhaps to be a mere variant of the empirical with an implicit “This is high risk”.

Just spitballing here. Perhaps it’s not that we downgrade for failing in these case but we valorize ones that can handle the worst justly and graciously?

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Jeremy Fox 07.21.11 at 3:55 am

An academic librarian on why she doesn’t support Swartz in this case:

http://kreschen.wordpress.com/2011/07/20/please-dont-try-this-at-home/

Includes useful background on JSTOR’s financial model, and discussion of the alternatives, in case anyone is still in doubt about whether JSTOR is one of the good guys. In particular, if you think that JSTOR is ripping off end users because its prices are high relative to the costs of scanning and distribution, you don’t fully understand their costs, and are criticizing the wrong target.

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Henry 07.21.11 at 4:07 am

bq. Henry – I’ve said more than once (including the comment you’re responding to) that the fact that this is one guy acting off his own bat makes this exploit tactically fragile, which in turn makes it strategically unreliable and highly debatable politically.

But it’s not one guy on his own. There’s a genuine, if likely small social movement focused on these issues and centered around Swartz, Carl Malamud, and other people sharing their priors. I’ve met some of them – can’t give you a good estimate of numbers, but he is surely not alone here.

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Matt 07.21.11 at 5:25 am

Includes useful background on JSTOR’s financial model, and discussion of the alternatives, in case anyone is still in doubt about whether JSTOR is one of the good guys. In particular, if you think that JSTOR is ripping off end users because its prices are high relative to the costs of scanning and distribution, you don’t fully understand their costs, and are criticizing the wrong target.

I don’t think JSTOR are really good guys, though they are not the worst and much of their badness is imposed by the copyright holders whose content they distribute. By way of comparison, the Internet Archive, Distributed Proofreaders, and HathiTrust are really good guys.

The only alternative suggested to copyright rentiers operating through JSTOR is copyright rentiers operating their own platforms at even more outrageous prices. I suppose this is realistic if one considers that advocates of copyright reform have only compelling arguments for the public good, while copyright rentiers have bought the relevant legislative bodies. But if publishers are unwilling to compromise on copyright and access, they will convince others that uncompromising action from the other pole is justified and necessary: “Since you will relinquish nothing at all, we will release absolutely everything.”

And let’s be clear, in writing the history of this war that copyright holders are losing, they initiated hostilities. Before Bram Cohen was out of diapers, before the electronic book, song, or movie even existed, American copyright holders had obtained their first retroactive copyright extensions and eliminated the renewal requirements that fed the public domain. They have only continued to ratchet forward legislation to protect old rents and develop new ones. It is not real justice that they’re now getting fucked regardless of the law, but real justice hasn’t been on offer for a while; the poetic variety will have to do.

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dsquared 07.21.11 at 6:51 am

We are far, far short of that level of mobilisation, and I’m deeply suspicious of technical fixes (“sure, it’s only one person, but look how much one person can do!”)

Disagree and disagree here;

1) the whole “free information” movement which Swartz (disclosure: also a mate) is part of is much bigger than the Italian ultraleft – the “Pirate Party” even has an MEP in Sweden, and it has to be considered as a global movement because it’s intrinsic to the ideology of the thing that it’s online and international.

2) since the context is computerised information systems, “look how much one person can do!”, and “technical fixes” have a very different calibration when that one person is an extremely talented computer programmer. To liberate 8 million court documents in 1970s Italy would have taken a big gang and three vans, rather than half an hour in a public library on the free version of PACER.

I think (also in part based on Phil’s book) that when you’re looking at a politically-motivated act of vandalism (and pending an official statement from the defence I am not even sure that this is what it had, and certainly wouldn’t take any factual statements from the prosecution at face value), it’s kind of disrespectful to just look at the vandalism and not at the politics. Academic publishing is a racket, and while I hope I understand Phil’s point I don’t really agree with it – I think that actually, it probably ought to be game over for the industry as an economic entity.

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dsquared 07.21.11 at 7:03 am

(also I’d note, tying this in with Henry’s big “theory of politics” debate, that whether one agrees with Aaron on the substantive issue or not, isn’t it refreshing to see someone in liberal politics who is prepared to put their body and career on the line. Obviously Aaron Swartz is young and pretty close to financially independent from the Reddit thing, but even so).

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Phil 07.21.11 at 8:18 am

OK, that’s interesting. Still not entirely convinced, I have to say. If you added up all the Trotskyists around the world you’d get a pretty large number, but it wouldn’t amount to an International Trotskyist Movement outside of hopeful (or hostile) fantasy.

To liberate 8 million court documents

My question is, did they stay liberated? What happened next, and was the end result greater accessibility overall than before? This suggests that 20% of the content of PACER ended up online (but not searchable), while 80% was locked down – the -free- 8c/page trial was withdrawn in response to the hack. (It does sound as if, on that occasion, Aaron tried to get some kind of mass activity going – but too little, too late & I’d argue too voluntaristic. When I say we’re way short of 1970s-Italy levels of activism, I’m talking mainly about strikes, occupations, rent/utility strikes, mass squatting and organised shoplifting – things you do where you live.)

kind of disrespectful to just look at the vandalism and not at the politics

I think that’s a false opposition. The guy who flanned Rupert Murdoch had a political point to make; we don’t criticise him for being nasty to an old man, we criticise him for doing something pointless and predictably counter-productive. Which is also my worry here.

The Eschenfelder piece makes an interesting point, not entirely unlike the one I was making earlier on:

If publishers perceive that JSTOR cannot provide security for their articles, they may pull out from the JSTOR program. Several publishers have threatened to pull out when they realized they could make more money selling their archives (aka “backfiles”) directly. No doubt they would price it higher. Publishers pulling out of JSTOR negatively impacts smaller colleges with smaller budgets that rely on third party platform services like JSTOR (see also Academic Search Elite etc.) to provide their students a wide array of journals to use while minimizing the need to negotiate and contract with hundreds of different publishers. So, Swartz may have harmed JSTOR, but probably did not influence publishers to make their material accessible for more reasonable fees at all.

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Cian 07.21.11 at 8:20 am

But I would be seriously peeved if somebody scanned & torrented it – not because of the loss of royalties to me (which are not huge) but because of the negative impact on the publisher.

But what would the negative impact be? MUP (who I don’t see as a bad guy – university publishers are mostly pretty good) have priced your book so its only going to be bought by institutions. Therefore, anyone downloading a torrented version of your book would probably not have bought it, and is unlikely to have institutional access to it. Its very hard to see any loss as more than theoertical.

And while MUP are fairly good guys, several of the academic publishers are bastards pure and simple. Kluwer, Elselvier, Taylor&Rougledge, etc. They have large margins, in an environment where they essentially have a monopoly and the fixed costs are very low. Its a scam (and one which was first identified by Robert Maxwell). We have a system where libraries costs are shooting up, because publishers are charging outrageous (and ever increasing) amounts of money for content their customers generate, and where publisher’s only contribution is a bit of proof reading (which for journals is not a very high cost), and some editing for books (higher, but still not particularly so) and fairly minimal typesetting. I mean hell, almost nobody reads paper journals anymore, so even that cost has disappeared (not that its very high, either, anymore).

Its an unsustainable system in its present form.

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Cian 07.21.11 at 8:26 am

Incidentally the more and more I think about this, the more I wonder whether Aaron was simply trying to simplify research. A scenario I can imagine:
1) You try the mass API thing they offer. Either its too bureaucratic to get access, or its not very good/too slow/doesn’t provide sufficient granularity. To a particular mindset (one Aaron has, and which I share), this is infuriating, and you immediately think about how you could do it better. To do that you have to…
2) download the documents. Try, get kicked out.
3) Now, with that peculiar tunnel vision that people get sometimes when they’ve chosen a path, figure that you know how to get into the MIT router, and might as well do it from there.

Kaboom. The hacktivism thing – I dunno, maybe.

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x.trapnel 07.21.11 at 9:45 am

Phil– If you want to know more about the PACER thing, I suggest starting here, or checking out the RECAP project, which is something of a crowdsourced version of what Swartz did in one big gulp.

If you look through this, you’ll see that it’s not just some lone hacker, but–as Henry says–a group of activists who are not only directly liberating legal materials previously behind paywalls (but entirely legit to distribute, legally speaking) but are also working to educate the public, contact officials, etc.–basically, exactly what you’d want engaged democratic citizens to do. If you read about what Carl Malamud’s doing at Public.Resource.org and still think it’s an open question whether this stuff is genuinely resulting in more access, then I can’t imagine what could possibly pass your epistemological hurdles.

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dsquared 07.21.11 at 9:45 am

1) You try the mass API thing they offer. Either its too bureaucratic to get access, or its not very good/too slow/doesn’t provide sufficient granularity. To a particular mindset (one Aaron has, and which I share), this is infuriating, and you immediately think about how you could do it better. To do that you have to…
2) download the documents. Try, get kicked out.
3) Now, with that peculiar tunnel vision that people get sometimes when they’ve chosen a path, figure that you know how to get into the MIT router, and might as well do it from there.

Thank you. This is the first sensible scenario that accounts for the details and makes sense that I have seen.

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dsquared 07.21.11 at 9:46 am

And specifically to tie up a detail, I suspect that with respect to 1), the JSTOR search API might not have “Who provided the funding for this paper?” as a field.

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Bruce Baugh 07.21.11 at 10:22 am

It was interesting to read this thread right after catching up on recent reporting about troubles with the FBI’s cases involving the anthrax mailings of some years ago. Apart from x.trapnel, I’m not seeing much discussion here of the very high probability that substantial portions of the charges against Swartz are pure BS, and that it’s just a matter of time until the defense puts out a wide-ranging early rebuttal. I can’t see how any stance but extreme skepticism is justified in response to allegations like these.

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Bijan Parsia 07.21.11 at 12:19 pm

Bruce@96, I’m not sure which parts you’re looking at but most of it seems quite straightforward (network access, campus and closet access, the downloading, the mac and ip spoofing/switching). Intend to redistribute is not an unreasonable hypothesis, given Aaron’s history. Damage assessment is a typical and standard BS place, but it’s not hard to come up with a reasonable estimate well in excess of $1000 (e.g., the shut down alone, but also the time spent by admins to get the servers running/track the problem).

So….what’s the substantial parts that are likely pure BS? I’m not saying that they aren’t BS of course, but they aren’t ridiculous and they are the sort of thing for which you can have a fair bit of direct evidence (e.g., footage, possession of the downloads, etc.)

It other words, it would be entirely unsurprising if the whole of the allegations were true (unless I missed some weird bit).

(Not that it would justify anything like the maximal penalty, or, I would say, any jail time. I don’t see much point to a fine, either. The bail seems very excessive too. Community service seems win win win. Again, assuming the charges are shown.)

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jim t 07.21.11 at 1:05 pm

JSTOR, in my experience, is available through many local, public libraries.

In this event, it seems Swartz broke into restricted areas, physically modified networks for his own gain, and then attempted to download files widely and publicly available in a manner which hurt other’s ability to access them. He did this not as his own institution but another one.

The academic publishing world has serious problems and should undoubtedly be changed. This was the wrong way to go about it. This seems more stunt meant to create a knee-jerk popular response from the internet than to initiate any long term change.

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roac 07.21.11 at 2:52 pm

I am not an academic and know nothing about JSTOR, but I have an observation about the claim that “X service should be free.” It is one that I tend to agree with, but the fact is that for decades the trend at every level of government is that less and less is “free,” meaning paid for out of general tax revenue, and more and more is subject to a user charge. This is a bad thing IMO, but I question whether hacking is a promising way to reverse it.

For example: I for one think it would be an excellent thing if public transit systems were supported 100% out of general revenues and no fares were charged at all. However if some computer genius figured out how to counterfeit the fare cards, printed off a million of them, and started handing them out on street corners, the transit agency would fairly quickly run out of money to pay its employees and suppliers. And what would happen then? It is possible that the legislative body would throw up its hands and raise taxes enough to run a free system. It seems to me at least as likely that in the present climate, they would listen to the folks at Reason and just shut the system down.

Obviously if you are going to impose a user fee, it should be kept at a level that just covers the cost of the system and should not be treated as a profit center. I see differing views here as to which is the case with JSTOR. I have no idea.

As a lawyer I can and will say a little about PACER. First, the article at x. trapnel’s first link does not suggest that the courts re making money off the service. Second, actual judicial opinions ought to be available for free as a matter of principle — and in fact they are, at least to lawyers. Its is filings by the parties for which there is a charge (which is capped at $2.40 for any single document). Third, as with JSTOR, in practice it is quite likely that you can get any particular brief for free; the contact information for the lawyer who filed it is available online and most attorneys would be happy to send you a pdf on request. Finally, the search function on PACER sucks to the point of nonexistence.

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Phil 07.21.11 at 4:49 pm

If you read about what Carl Malamud’s doing at Public.Resource.org and still think it’s an open question whether this stuff is genuinely resulting in more access,

OK, I underestimated the extent to which Aaron had people with him – and I think Recap looks like a Very Good Thing. But this doesn’t answer the specific question of whether crowd-hacking PACER did more good than harm – as I said above, the story I quoted said that the public library pilot was suspended in response to the hack.

Cian – I’m hanging on in the hope of a paperback edition, which would both make my book available to as many people as want it and make money for MUP, supporting future non-commercial publishing. (Sounds like a win/win. Presumably there’s a downside somewhere.) MUP take the view that a book needs to earn back its production costs before it goes into paperback, which essentially means selling 300+ copies at How Much? each. Free copies floating around would make that a lot less likely to happen & push MUP back into the libraries-only niche (and a smaller niche at that). A viable free-copies-floating-around ecosystem would be even better, but I don’t think we’ve got one of those waiting in the wings.

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kidneystones 07.21.11 at 4:56 pm

I subscribe to several academic journals and pay dues to several academic organizations. Accessing J-STOR seems a bit strange. After all, poring through musty academic journals isn’t exactly every ordinary person’s dream. Academics are famously lax in our own reading habits. The case, then, can be made that somebody should be reading these behind the pay-wall articles.

That said, this is a simple case of theft, not very different from stealing a book from a bookstore. Except, that the innocent victim, (or is it the accused?) evidently planned to make all the J-STOR articles available to the entire internet. This makes the crime significantly more serious than simply stealing the book from a bookstore. Stealing a book from a bookstore, of course, is an inexcusable act from any responsible adult. Stealing a book and then printing millions of copies of the book is a rather more significant crime. Once the book is available for free, why would anyone, anywhere, ever pay for it? Of course, the innocent victim, (or accused) isn’t just copying one person’s book. He’s copying entire bookstores full of books.

I’m sure that the individual involved is motivated by some high-minded principle that allows him to justify the theft. We saw David Gilmour’s adopted son in court the other day, another victim of the out of control police state. He’s facing fourteen months in prison for taking a stand against Cameron’s education policies and my guess is he’s pleased and proud to be in cells as a political prisoner fighting for a cause. Like Mandela. I see no reason to deprive the victim/political activist from the full glory of his role. Letting him off without jail time is sort of an insult, isn’t it? How can one possibly pen a prison diary if the judge offers probation and community service. Rather trivializes the political act, does it not? Making it prank, rather than the act of committed advocate of unfettered access to information.

Just like Gandhi making salt. I’m sure he wants to go to jail to draw attention to whatever cause it is that motivated him to hack into the J-STOR system. It’s a magnificent act of provocation.

I’m sure he wants the hammer to fall hard. The more publicity, the better.

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Substance McGravitas 07.21.11 at 4:59 pm

That said, this is a simple case of theft, not very different from stealing a book from a bookstore.

Except that the bookstore still has the books, making it very different from stealing a book from a bookstore.

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ejh 07.21.11 at 5:14 pm

Well yes, but if somebody borrowed a book from my stall, copied it, and then after giving it back, gave the copy to somebody who might very well otherwise have bought that book from me, I’m not entirely sure I’d appreciate the difference.

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Substance McGravitas 07.21.11 at 5:21 pm

Well yes, but if somebody borrowed a book from my stall, copied it, and then after giving it back, gave the copy to somebody who might very well otherwise have bought that book from me, I’m not entirely sure I’d appreciate the difference.

It’s a library, not a stall. People look at the articles, print them and copy them as a matter of course. More prosecutions for that would be interesting in some bloodless technical sense I guess, but it seems like an incredible waste of time.

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ejh 07.21.11 at 5:23 pm

People look at the articles, print them and copy them as a matter of course

Under certain conditions and with certain, but not unlimited, rights.

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Substance McGravitas 07.21.11 at 5:25 pm

Under certain conditions and with certain, but not unlimited, rights.

Not in practice.

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Substance McGravitas 07.21.11 at 5:26 pm

Or, to be less strong about it, “when they think they can get away with it” which, in practice, is a lot of the time.

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ejh 07.21.11 at 5:29 pm

And part of the job of the professional librarian (and although I work as a bookseller, I am a professionally-qualified librarian) is to try and prevent them from doing so.

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kidneystones 07.21.11 at 5:30 pm

Actually, I’d say you’re completely wrong.

Bookstores have books, plural, usually. The few bookstores that still exist, that is. Bookstores have copies of the book. Copies they pay for. One can steal or purchase one copy of the book Other copies are almost always available. Indeed, how the book leaves the bookstore really isn’t an issue, if all we are talking about is the bookstores’ supply of books. The bookstore could be robbed of all its books and still have access to more copies, probably paid for the insurer.

It’s possible I’m missing some deeper meaning your brief response. At this stage, however, I can’t see that you’ve made any substantive point at all. The victim/accused broke into a university system and used the system to illegally copy the contents of a pay-for-view information system. You surely don’t dispute that? He then planned to distribute the entire contents for free on the internet. He deserves all the honor and publicity that prosecution and incarceration will bring. All for a good cause. Right?

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Substance McGravitas 07.21.11 at 5:34 pm

And part of the job of the professional librarian (and although I work as a bookseller, I am a professionally-qualified librarian) is to try and prevent them from doing so.

That’s pretty amusing, given that libraries loan out books, which you’d think they wouldn’t do if preventing copying was such an enormous concern. It isn’t. And in practice, people copy. Adjust.

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Substance McGravitas 07.21.11 at 5:35 pm

Bookstores have books, plural, usually. The few bookstores that still exist, that is. Bookstores have copies of the book. Copies they pay for. One can steal or purchase one copy of the book Other copies are almost always available.

If you want to compare one minus one to one plus one knock yourself out.

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ejh 07.21.11 at 5:37 pm

In fact, in actual practice, there are limitations on copying, and people aren’t able to do so willy-nilly. I say this from knowledge and experience. There are rules, and people who transgress them are often caught.

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ejh 07.21.11 at 5:37 pm

In fact, in actual practice, there are limitations on copying, and people aren’t able to do so willy-nilly. I say this from knowledge and experience. There are rules, and people who transgress them are often caught.

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Substance McGravitas 07.21.11 at 5:42 pm

In fact, in actual practice, there are limitations on copying, and people aren’t able to do so willy-nilly.

Oh, I agree that they aren’t able to do so willy-nilly. Just often enough that prosecuting people for it seems like an egregious waste of time and money. I say this from knowledge and experience. There are rules, and people who transgress them are rarely caught.

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ejh 07.21.11 at 5:46 pm

Oh, I agree that they aren’t able to do so willy-nilly. Just often enough that prosecuting people for it seems like an egregious waste of time and money.

So it is, but excess photocopying isn’t usually on this kind of industrial scale (not least because these days students often have to pay for it directly, which I’m very far from agreeing with). If it were, I think you’d see some prosecutions.

There are rules, and people who transgress them are rarely caught.

Perhaps more often than you know.

(This is not to say that the enforcement of rules isn’t a large problem in university libraries, but that’s perhaps a matter for another thread, another day. I could go on and on about it, and probably I’d better not.)

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Henry 07.21.11 at 5:49 pm

bq. OK, I underestimated the extent to which Aaron had people with him – and I think Recap looks like a Very Good Thing. But this doesn’t answer the specific question of whether crowd-hacking PACER did more good than harm – as I said above, the story I quoted said that the public library pilot was suspended in response to the hack.

But it does answer the question of whether it _predictably_ did more harm than good – which is surely the standard that I think should apply here. If there is (a) a real social movement, and (b) a way in which the actions plausibly feed into the social movement, then that’s the relevant standard for you, right? We can still debate whether or not any specific action is a _mistake_ ex post, but we can’t say that the PACER hack was obviously stupid, _ex ante_ in ways that made it a fundamentally misguided thing to do off the bat. I’m sure that the Itsalian ultraleftists made plenty of tactical errors in their restaurant occupations etc, that were obviously bad ideas _ex post_, but that’s not the point, is it?

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kidneystones 07.21.11 at 5:51 pm

I’m not sure if you’re being rude, or simply being obtuse. You, not I, suggested that the actual numbers of books in the bookstore made some meaningful difference to the question, in your response to my description of the hack as a simple case of theft from the bookstore. I’ll try to make this easier for you. If you steal a pair of jeans from a clothing store, the fact that the store still has jeans to sell has absolutely no bearing on the fact you stole the jeans. The jeans in question could be identical in size, brand, shape, and color. The store might have thousands of pairs of the same jeans. Stealing the jeans would still be theft. You do see that, don’t you?

We could, I suppose, take the jeans analogy a step further and suggest that the victim/slash accused broke into the store and night and stole hundreds of pairs of jeans so that he could give them to poor people to wear. That’s probably a closer analogy. There’s a ‘benefit’ that theoretically might be raised to justify the theft.

In any case, it seems you don’t have anything to add to the discussion, so I’ll wish you the best. I’m sure you personally would never steal anything. Good for you!

I note in your exchange with ejh a shifting set of objections to the prosecution. Perhaps it might be better to pen your own thoughts on the matter before critiquing those of others.

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Substance McGravitas 07.21.11 at 5:57 pm

I could go on and on about it, and probably I’d better not.

If you ever go on and on about it I’d be interested. I understand the rules are there and everyone pays them lip service, and there is an extent to which I am happy to have various libraries pay for access to various things in order to keep those archives viable. I’m just not sure for myself what that extent might be.

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Substance McGravitas 07.21.11 at 5:58 pm

If you steal a pair of jeans from a clothing store, the fact that the store still has jeans to sell has absolutely no bearing on the fact you stole the jeans.

It, in fact, has THE JEANS and did not lose them. It is not theft.

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Lemuel Pitkin 07.21.11 at 6:07 pm

I think people are too confident that unauthorized copying deprives creators of income. Economically, there are two effects of an unauthorized copy: On the one hand, it is a substitute for the an authorized copy. But on the other hand, it raises visibility awareness of the product — the advertising effect. There’s no a priori way to know which of these two effects dominate.

There is some empirical evidence on this, which suggests that in many cases, unauthorized copies can increase rather than decrease sales of authorized copies. Here is a very nice study by Yi Qian of shoe-counterfeiting in China that finds that

counterfeits have both advertising effects for the brand and substitution effects for authentic products. The advertising effect dominates substitution effect for high-end authentic product sales, and the substitution effect outweighs advertising effect for low-end product sales. The positive effect of counterfeits is most pronounced for the high-fashion products (such as women’s high-leg boots) and for the high-end shoes of the brands that were not yet well-known at the time of the entry by counterfeiters.

Yi also wrote this fascinating survey of the economics of counterfeiting, which identifies a remarkably broad range of theoretical and empirical cases where laxer IP protections turn out to benefit sellers. For instance, there’s evidence that academic journals were able to charge higher prices as a result of the widespread availability of photocopiers starting in the 1980s, because the greater value of journals to subscribers who were now able to make copies of articles outweighed the loss of sales to people who read the copies.

Here is a paper quantifying the effect of music file-sharing on concert revenues, and finding that it is strongly positive for less-known performers.

Here is one on a slightly different but related topic, the effect of IP protection on research on the human genome. It finds that

Celera’s IP led to reductions in subsequent scientific research and product development outcomes on the order of 30 percent. Celera’s short-term IP thus appears to have had persistent negative effects on subsequent innovation relative to a counterfactual of Celera genes having always been in the public domain.

Personally, I want to see weaker IP protection because, even if there is a tradeoff between consumer welfare and producer income, it seems clear we are way too far out on the maximizing-producer-income part of the curve. And to the extent that there are alternative mechanisms out there for rewarding producers, we can move the curve outward as well. But if you believe the empirical literature, in a lot of cases the existing curve may not even slope downward — excessive IP protections directly reduce producer income in addition to depriving consumers of their products.

(Ironically, people not on an academic network may not be able to access some of these papers. Read the second linked Yi paper, it’s the best one anyway.)

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Lemuel Pitkin 07.21.11 at 6:12 pm

(I should have said more clearly, there’s another channel by which unauthorized copies raises demand for authorized ones — something that can be copied is worth more to the consumer than something that can’t be. In the journals and photocopiers example, that effect seems to dominate. Similarly, if JSTOR, let’s say adopted a policy like the NYT’s where direct links to an article work for everyone, institutions might well be willing tp pay more for it, since being able to use JSTOR links in documents for general audience would be valuable to academics.)

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matth 07.21.11 at 6:39 pm

I think people want to call this “theft” because Aaron kept the property. If you think of “trespass”, at the most abstract, as just violating the property owner’s right to exclude others, Aaron went a bit further, because he both (allegedly) deprived JSTOR of its right to exclude him, and sought to deprive it of its ongoing right to control its “property.”

We do sometimes describe acts which wrongfully deprive an owner of the right to exclude others from their property and to control their property, but not of the right to use their property in the future, as “theft.” If Bob surreptiously copies private pictures off Amy’s phone, she could talk about Bob’s “theft” of her pictures. I don’t think she’d be misusing the word: Bob didn’t deprive Amy of the use of the pictures, but he did deprive her of the right to exclude others from using them, and to control them. Exclusion and control are traditional property rights, so “theft” seems like an appropriate description.

Again, though, it ultimately doesn’t matter whether we call this “theft” or not. Lots of property crimes aren’t “thefts”; some “thefts” aren’t crimes. What matters is whether Aaron committed a crime, not whether the crime could be described as “theft” in casual conversation.

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Substance McGravitas 07.21.11 at 6:49 pm

If Bob surreptiously copies private pictures off Amy’s phone, she could talk about Bob’s “theft” of her pictures.

That’s a good description of an exclusion right, but if it was Amy’s practice to supply said photos to millions of people she had never met all over the world you might wonder what the deal was when she freaked out over Bob.

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Bruce Baugh 07.21.11 at 6:49 pm

Bijan Parsia@97: I have no basis on which to challenge any specific element of the charges. I’m applying a skepticism based on the prevailing legal environment, from institutionalized local and state malfeasance of the sort that Cory Maye suffered under to the ongoing shifting stories and proven lies with regard to suspects in the anthrax mailings. Both extraordinary cases, like Cpl. Manning’s, and routine cases, like Maye’s, show us prosecutors who don’t much care about getting facts right when there’s a chance for a yummy slam at some handy enemy of the state. I’d be expressing the same skepticism about a whole bunch of other cases, if they came up here, for the same reason – it’s about the context, not the specific case, but the context is so bad that I feel there should always be a lot of skepticism until someone else can back up the facts alleged.

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Cian O'Connor 07.21.11 at 6:57 pm

Justin, a scanner costs £70. How exactly are librarians going to police that? Book scanners are falling rapidly in price as well.

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Cian O'Connor 07.21.11 at 7:14 pm

The victim/accused broke into a university system and used the system to illegally copy the contents of a pay-for-view information system. You surely don’t dispute that? He then planned to distribute the entire contents for free on the internet.

The system is a subscription system, rather than a pay-for-view, one. He had access to it through a different institution. There is no evidence that he planned to distribute it for free, this is merely an allegation made by the prosecution. Given his history, there are perfectly plausible, legal and legitimate research purposes to which he might have been planning to put this archive.

Oh and you got the story about Dave Gilmour’s son completely wrong as well.

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matth 07.21.11 at 7:24 pm

That’s fair enough, and relevant to whether the law should treat Aaron differently than it would treat Bob. The point of the example was just that, whatever defines “theft”, it’s not limited to behavior that deprives the owner of the future use of the property.

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Bijan Parsia 07.21.11 at 7:39 pm

Bruce Baugh@123:
You write:

I have no basis on which to challenge any specific element of the charges. I’m applying a skepticism based on the prevailing legal environment,

That’s not very convincing, certainly not to the point of justifying your “I can’t see how any stance but extreme skepticism is justified in response to allegations like these.”

My non skeptical stance is driven by: 1) The charges are specific and the sort of thing that require fairly direct evidence to be plausible. 2) There were corresponding events (e.g., the denial of service at MIT) with corroboration from various parties (JSTOR’s press release). 3) The proposed sequence of actions is quite consistent with Aaron.

2 seems overwhelming. You think JSTOR is lying? Why would they do that? 1 seems rather strong too: I suppose the bicycle helmet stuff could be a fabrication…but would a grand jury really go for that without a tape? (If there had been a witness, presumably they would have stopped Aaron.)

I’m pretty open to skepticism about charges esp. when there’s a possible political motive, but, as with Assuage, just because it’s politically handy doesn’t mean it isn’t true. In which case, I move on to thinking about how to avoid the politics driving a much worst sentence than would be proper or reasonable.

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ejh 07.21.11 at 7:41 pm

Justin, a scanner costs £70. How exactly are librarians going to police that?

They’re not, but then again they can’t police a photocopier either if you happen to have one at home. The photocopiers and scanners in the library, on the other hand….

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otto 07.21.11 at 7:44 pm

There’s a bit of a theme here where people say there’s good reason to assume that Aaron was *not* planning to make JSTOR’s articles freely available on the web while on the other suggesting that there would be large social benefits if he-or-friends were to do so. The more I hear of the widespread support for the latter sort of thing as a focus for activism, the more the first assumption seems less than rock solid.

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Substance McGravitas 07.21.11 at 7:50 pm

The point of the example was just that, whatever defines “theft”, it’s not limited to behavior that deprives the owner of the future use of the property.

Point taken.

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Cian 07.21.11 at 8:13 pm

There’s a bit of a theme here where people say there’s good reason to assume that Aaron was not planning to make JSTOR’s articles freely available on the web while on the other suggesting that there would be large social benefits if he-or-friends were to do so.

No, people have pointed out that there’s no evidence (so far) to show that he was planning to make these articles freely available on the web, and given the nature of his previous research, there is a plausible and legal explanation for what he was actually going to do with these documents.

The discussion about copyright and academic publishing is a wider one.

The more I hear of the widespread support for the latter sort of thing as a focus for activism, the more the first assumption seems less than rock solid.

And what leads you to the conclusion that would be something that Aaron in particular would do, rather than A.N.Onymous hacker? Can you point to something in history, actions, statements? Anything at all?

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Lemuel Pitkin 07.21.11 at 8:27 pm

(I have a long post stuck in moderation, presenting some empirical evidence that unauthorized copying often raises rather lowers producer incomes. In the meantime- )

On the question of what constitutes theft in the context of digital information, it’s helpful to recall Blodrin and Levine‘s point that IP rights are a bundle that include the normal property rights to use, exclude and alienate, plus the additional right to downstream licensing that other forms of property do not carry. Normally, a sale involves the transfer of the seller’s entire interest in the item sold to the buyer; the buyer gets the full property rights attached to the item, include the right to further dispose of it as he or she likes. By contrast, when I purchase an electronic book, recording, etc., I do not receive the right to alienate it myself. In other words, sellers of IP have more than full property rights, and buyers have less than full property rights.

The precise analogy with the clothing store is if buying a pair of jeans typically involved signing a contract agreeing not to loan, give away or resell them. Clothing store owners could reasonably claim that legalizing second-hand clothing stores would reduce their income. And if buying clothes did generally involve such contracts, then second-hand clothes sales would by definition be a criminal act. For whatever reason, we don’t have such contracts. But if we did, we certainly would not regard violating them via voluntary sale of jeans from one party to another as an act of theft.

The distinction is simple: If A acquires something of value from B, it is theft if A did not consent, and not theft if A does consent. While third parties may have a legitimate interest in the transaction, their failure to consent to it does not make it theft. (Buying liquor underage is illegal, but not the same as stealing it.) Note that in most, but not all, cases of “piracy,” every transaction is voluntary. Amazon voluntarily sells me the recording of a book or movie, and I then voluntarily provide copies of it to people on the internet. No theft. I take a picture from your phone without your permission, and redistribute it. Theft, because I got something of value from you without your permission.

The confusion on this issue comes from the bundling together of property rights with downstream licensing in the hybrid term “IP”.

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Lemuel Pitkin 07.21.11 at 8:29 pm

(oops, A and B are backward. It’s clear what I meant.)

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Random Lurker 07.21.11 at 9:05 pm

@Lemuel Pitkin 133
Wouldn’t a better example be a rent?
For example:
a) I build a house, then I rent to someone, but I bind him not to “sub-rent” it to someone else. The house is still mine though.
b) I write a novel, then I give permission to a guy to read it, but not to give it to other people so that they too can read it. The novel is still mine.
Also, copyright usually vanish after 75yrs after the death of the author, and the author cannot “sell” this right (that is, if I write a novel there is no way that the copyright can end after 75yrs of your death, whatever right I cede to you). In this sense, the actual “property” is never – and can never – be transferred.

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Phil 07.21.11 at 9:55 pm

If there is (a) a real social movement, and (b) a way in which the actions plausibly feed into the social movement, then that’s the relevant standard for you, right?

I don’t want to argue about whether Malamud & Swartz & co represent a ‘real social movement’, although I’m not entirely convinced. But even conceding that point, this still seems a bit idealist/voluntaristic to me. The strategic question is not whether the action ‘feeds into’ the movement – you could take that bet on many kinds of action and many kinds of movement – but whether it fits into the continuing activities of the movement in an achievable and sustainable way. Which is arguable, although the fact that the PACER downloaders garnered 20% of the archive in a year suggests that the scale may have been beyond the group. Perhaps more to the point here is the tactical question, which is just “is this, here, now, as planned, likely to work?”. On this level, I think misguided or unrealistic actions by people you sympathise with absolutely should be criticised as such.

Of course, there’s another way of looking at this, which is to say that solidarity demands a united front in defence of allies who are getting crushed by the state, and I do sympathise with this. But I don’t think it lets those people off the hook of criticism. When it comes to protesting disproportionate punishment, I think the Left (however defined) should show solidarity even with that idiot who threw the fire extinguisher off the roof of Tory HQ, or the Weather people who are still rotting in prison for that matter. That doesn’t mean approving their actions, any more than someone who opposes the death penalty for murderers is expressing approval of murder.

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bianca steele 07.21.11 at 9:56 pm

@Lemuel Pitkin

because the greater value of journals to subscribers who were now able to make copies of articles outweighed the loss of sales to people who read the copies

Presumably this means something like “journals were of more use to libraries when people could photocopy articles and read them on their own time (or have the articles photocopied and mailed to them).” It isn’t entirely clear this was in the public interest, however, given restrictions on access to paper journals and to photocopying.

On an unrelated point, almost since there has been high fashion, copying designer styles has been part of the fashion ecosystem. Making this illegal, changing the culture to fit some eccentric and legalistic interpretation of what IP means and what rights should be public and/or transferred by sale, especially through intrusive means such as are suggested for digital rights management in some cases, would seem plausibly to threaten the industry itself in the long run (and something like deciding we had always really had contracts excluding resale on clothes, we just hadn’t known we did). I’d include within “intrusive” the prohibition of automated retrieval of all kinds, but not unreasonable overuse of unmetered resources, which it seems is the issue here (questions of penalities and whether Swartz really ought to be compared to Prometheus aside).

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otto 07.21.11 at 10:10 pm

And what leads you to the conclusion that would be something that Aaron in particular would do, rather than A.N.Onymous hacker? Can you point to something in history, actions, statements? Anything at all?

I suppose that Aaron has been described as “the same person who brilliantly liberated millions of pages from PACER” would be the obvious part of his history that might ‘at all’ suggest this as a possibility.

And you are correct that there is as yet no evidence one way or the other as to his intentions in this case, but why people are assuming he did not intend some ‘liberation’ in this case, I cannot fathom.

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Lemuel Pitkin 07.21.11 at 10:44 pm

Presumably this means something like “journals were of more use to libraries when people could photocopy articles and read them on their own time (or have the articles photocopied and mailed to them).” It isn’t entirely clear this was in the public interest,

The linked paper presents evidence that the introduction of copiers increased payments to journal publishers, i.e. that free copies of articles crowded in rather than crowded out paid copies. I have to admit, I don’t understand how this could not be in the public interest.

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Lemuel Pitkin 07.21.11 at 10:48 pm

(In other words, just to be crystal clear, the finding is not just that journals “were of more use” to libraries. It’s that libraries bought more of them.)

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Phil 07.21.11 at 10:58 pm

Selective Appeal Dept: anyone who’s interested in my book, & who didn’t pick up a flyer for it in York or Newcastle a few weeks ago, may be interested in the last paragraph here

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mitgrad 07.21.11 at 11:00 pm

Two questions about the positions being taken by posters here:

1) With respect to Mr. Swartz, I see a number of posters who seem to be saying that any and all of the charges against him are illegitimate. Setting aside the question of theft from JSTOR, are people here arguing that the charges of physical trespass at MIT, breaking into the MIT network, and damages at MIT (i.e., staff time working on the problem, loss of productivity due to JSTOR outage) are also illegitimate? Granted those charges are much smaller and by themselves they wouldn’t merit anything like a 35 year federal prison term. I’m not clear why they are illegitimate, though — what’s the argument there?

2) There’s a long discussion above on the difference between copying digital material vs stealing physical goods — i.e., “a store loses a pair of pants, whereas JSTOR still has all its files”. To try to understand where people are coming from, how about this example: I obtain access to Amazon.com’s servers without their permission, and download hundreds of still in copyright ebooks for my Kindle. Has a theft taken place? Has a greater offense taken place if then I break the DRM on them all and post them all on the net?

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Andrew F. 07.21.11 at 11:17 pm

Well, if Swartz was indeed conducting research for a paper, then he’ll still be guilty of criminal conduct, though not of all the charges alleged. He would, if he were conducting research for a paper, have substantial evidence of the fact that he was writing such a paper, including notes, perhaps drafts or correspondence, and research trails. Did the USAO fail to investigate this aspect before asking for the indictment? It’s possible, but I doubt it.

I’m sympathetic to the idea of rendering information more free, and easier to access, but I think his methods are likely to backfire.

Swartz is obviously a very bright and dedicated person, and he has chosen the means in which he is most expert to effect the desire change; however those means are ill-suited to the task, and the analogy that comes to mind is the talented safe-cracker that breaks into a vault in order to effect a more progressive tax code.

There are any number of projects to which Swartz’s talent and skill can be put to great use. Hopefully, this detour will simply be a learning experience that shows the path to new achievements.

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Matt 07.22.11 at 12:37 am

There’s a long discussion above on the difference between copying digital material vs stealing physical goods—i.e., “a store loses a pair of pants, whereas JSTOR still has all its files”. To try to understand where people are coming from, how about this example: I obtain access to Amazon.com’s servers without their permission, and download hundreds of still in copyright ebooks for my Kindle. Has a theft taken place? Has a greater offense taken place if then I break the DRM on them all and post them all on the net?

A theft has not taken place. An unauthorized use of a computer system has taken place, copyright violation has taken place, and if you break the DRM illegal circumvention of access controls (if you are in the United States) has also taken place.

I wouldn’t steal a pair of pants. But if my computer could make free duplicates of pants I wouldn’t feel the least bit guilty about copying my friend’s pants and then passing along more copies to friends and strangers. If someone offers me a Star Trek replicator, my first reaction is joy for the 99% who will experience greater material prosperity, not sadness for the 1% whose formerly great wealth now entitles them to no special social status. And I say this as someone who published articles in commercial journals when I was in academia and as someone who continues to make my livelihood producing copyrighted material.

In the Old Days, roughly speaking before 1976 in the United States, copyright holders could get rich off of copyrights without pauperizing the public domain: they had 14 to 56 years, depending on the era and whether or not they pursued renewal, in which to profit off of a copyrighted work. This was enough to extract 95% of the total realizable value from 95% of all creative works. The public got free access even to perennial favorites after no more than 56 years, and frequently much sooner if sales did not justify renewing the copyright. But 95% of 95% was not enough; copyright holders wanted 100% of 100%. Since 1963 no copyrighted works have aged out into the public domain in the USA, and it looks to get worse: Congress will be lobbied to add 20 years to terms at roughly 20 year intervals, or it can get worse even faster by efforts to “harmonize” copyright law* internationally. It would be horrifying if the laws so bought were actually enforceable.

The silver lining is that this attempted villainy has more than met its match in electronic communications. Publishers of all sort are busy encouraging legislatures to install missile-silo doors on an empty barn. The horses left a decade ago and are breeding wild in the countryside. Their herds are so big they are visible from space. Now even beggars do ride.

*This harmonization process inevitably ratchets copyright terms up, not down. Why does the United States aim to harmonize up toward the European Union rather than down toward Australia, India, or China? Of course this is not an honest question and the answer is corrupt as well.

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bianca steele 07.22.11 at 12:58 am

Lemuel:

Okay, I hadn’t looked at the original paper. Sure, if more copies go to places well placed to make good use of them, that’s in the public interest.

But the photocopying thing is actually not that counterintuitive. It is entirely possible for an entire customer base to violate the licensing agreement, and for the primary use of a product to involve a violation of the license agreement, sometimes a merely technical violation, sometimes a violation that only a zealous lawyer could detect. Then, I’d suppose, all those Paper Chase-type common-law considerations would come in.

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kidneystones 07.22.11 at 1:27 am

I’m frankly astonished at the bafflegab served up to obscure the simple facts of the case. He caused real harm to an enormous number of legitimate J-STOR users and seems to have been fully aware of this fact. He also seems to have been fully aware that his actions violated a number of laws. That’s it. We’re not talking about the Pentagon papers here.

Remarkable.

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Lemuel Pitkin 07.22.11 at 2:06 am

I find comments like kidneystones@146 fascinating.

Speaking from my own experience, I spent quite a few years doing policy work for unions, nonprofits and a small city agency before returning to graduate school. In none of those jobs did I have access to academic articles through JSTOR or a comparable service. But there were very frequently academic articles directly relevant to my work (and even more frequently ones I was just interested in.) I had enough friends in academia that if I really wanted something I could usually get it, but it was a huge inconvenience and waste of my time, not to mention costly to my employers. And of course my situation was far better than someone whose social background makes them unlikely to have friends in PhD programs, not to mention students in poor countries (or at poor schools ion this one) whose institutions can’t afford subscriptions.

Yet for kidneystones, as for quite a few commenters here, the inconvenience for some MIT students having a harder time accessing journal articles for a few hours is an outrage, while the inconvenience of millions of people having no access to them for their whole lives doesn’t register as a moral issue at all. What’s that line? “Tragedy is when I stub my toenail; comedy is when you fall down a sewer and die.”

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mitgrad 07.22.11 at 2:21 am

It’s possible to both think that academic publishers are grossly abusing their monopoly power and in general think things have gone way too far on the side of corporate copyright holders, and, to think that it’s wrong to break into someone else’s physical property and commit acts there that harm the property owner, even if on behalf of a worthy cause. Am I supposed to not mind if on behalf of bringing better access to knowledge to the world’s poor, Swartz had for some reason broken into my house and hidden himself in my basement?

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kidneystones 07.22.11 at 2:59 am

Hi Leonard,

Actually, I don’t find anything “outrageous” about the case itself. Your points about the difficulties you’ve encountered accessing j-STOR, appear to involve only circumventing the demand to pay for view, not actual access. One can make the argument that “all information” should be free, but that still wouldn’t change the facts of the case. Your offensive suggestion that denial of service is mere inconvenience indicates you are utterly unfamiliar with the stresses of deadlines in a high-pressure academic environment. Over the last decade I relied very heavily on the Harvard electronic data delivery system. I am, therefore, slightly grateful that the accused elected to sneak into a closet and screw with the system at MIT. However, as an alumnus and an academic, I find the sleazy sleight of hand and decision to disable the MIT system to be shameful and repugnant. Funding for archives of all kinds in many countries is increasingly difficult to obtain. Imperfect as the current system is, and we agree that it is imperfect, donors need to be assured that part of burden they shoulder will be shared by institutions and individual user fees.

The hack was both illegal and wrong at many levels. If it was an act of political defiance, fine. Let him pay the price. If it was for research purposes, let him also pay the price. Many university libraries, btw, have extremely strict policies that prevent “ordinary” ciizens from entering the collections. Surely, they should be permitted to similarly control access to their digital collections. Perhaps you disagree.

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Lemuel Pitkin 07.22.11 at 3:11 am

Your offensive suggestion that denial of service is mere inconvenience indicates you are utterly unfamiliar with the stresses of deadlines in a high-pressure academic environment.

Yup, I’m a mere peasant at a land grant university. No pressure here. And those yokels outside academia, that they might have deadlines that journals articles might help them to meet? Absurd.

I’ll just doff my hat and step into the gutter as you ride by, milord alumnus.

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Henry 07.22.11 at 3:31 am

Phil – if you get a chance do look into the open access people – I think it is demonstrably a real social movement, with real goals etc. And I think the PACER action did feed into it – it actually did quite a bit as I recall to bring the fact that court records officers (whose professional conference I once addressed in Ohio – still not quite sure why they wanted me) were getting a nice little earner out of restricting access to material that the public owned. As best as I recall (I could be wrong) the libraries program was less a pilot, than an effort to get some of their critics off their back. Anyway, worth looking into.

Lemuel (or should I say Leonard?) – please, please don’t do anything to disrupt the comedy. The harrumphing diction, the big words, the casual namedropping and the ever so slightly dubious grammar – it’s really a quite exquisite performance.

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kidneystones 07.22.11 at 3:53 am

Hi Henry,

Pedantry and derision? Nothing substantive? Your friend evidently committed several crimes. Should he be punished or given a free pass because of his red-brick affiliations? Wrong topic, right? You do have my sympathies, btw. Always tough when a friend’s in a jam.

Cheers!

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Britta 07.22.11 at 4:07 am

Lemuel Pitkin,
I’m not sure that dismissing the denial of a service to people whom had paid for legitimate access (in whatever way through being affiliated with MIT) as “mere inconvenience” helps the cause. I am a Marxist and am in general sympathetic to redistribution of wealth, but not through high-handed individual decisions to break the law. (I also am a Kantian :). If I were to mug you at gunpoint on the street with a justification that I would then ship the contents of your wallet to help those in Haiti, who needed it more than you, we would think that my means were high-handed at best and a petty criminal justification at worst. In many cases the ends do not justify the means, no matter how worthy those ends are. Secondly, on some Maslow’s hierarchy of needs I agree that “first world problems” aren’t as problematic as those faced by those in dire hunger and poverty, but I get a bit tetchy when people decide that they are the arbiters of others’ suffering. It veers a little too close to “dictatorship of the proletariat” type Stalinism for my comfort.

Finally, JSTOR is available at every public library I’ve ever been to. This makes the actions less conscionable. Although dubious, it’s one thing to take a potshot at a service available only to those privileged enough to be affiliated with a top university, it’s another to take aim at one of the few academic search engines widely affordable to public universities and community colleges, etc. In fact, I would say taking a shot at JSTOR is more indicative of an ivory-tower type total disregard for the realities of academic publishing and journal storage.

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John Protevi 07.22.11 at 4:30 am

I get a bit tetchy when people decide that they are the arbiters of others’ suffering. It veers a little too close to “dictatorship of the proletariat” type Stalinism for my comfort.

Really? Just Stalin? Why not you know who?

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Lemuel Pitkin 07.22.11 at 4:34 am

JSTOR is available at every public library I’ve ever been to

So why couldn’t the MIT folks just go there?

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Lemuel Pitkin 07.22.11 at 4:51 am

I mean, seriously, here I am sitting in my little cubicle, trying to get something written on how the proposed changes in the Upper Payment Limit formula are going to affect Medicaid funding for NYC public hospitals so my organization can get a statement in to CMMS before the public comment period closes. And hey, there’s an article in Health Economics that looks like it addresses exactly a question I’ve been struggling with.

And I am legally prohibited from reading it.

Do you have any idea how frustrating that is? No, of course not, because you’ve never been in that situation, and you don’t know anyone who has. “Oh, online journals aren’t for your kind, dear,” says Britta. “They’re for us Marxian-Kantians — you wouldn’t understand all the big words. Or if you really must, just go down to the public library. For us in the university, with our important deadlines, that would be a frightful inconvenience, but surely nothing you’re doing is so important it can’t wait a couple hours?”

And now AndrewF and Phil step up to say, “Oh, well, that does seem a bit unfair. And as soon as you come up with a way to change it that is perfectly legal, causes no inconvenience to anyone, and is 100% guaranteed to work, we’ll be totally in favor of doing something about it.”

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Emma in Sydney 07.22.11 at 5:18 am

Hooray, Lemuel, well-said. Meanwhile, many academics and researchers are actually doing something about it by starting, running and promoting open access journals in places all over the world. With lots of inconvenience, but without any guarantees, just bloody hard work. Because most of the research locked up in subscription journals and repositories is funded with public money, from taxes, paid by those little people who have no right to see it. Ptui!!

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Sebastian H 07.22.11 at 5:31 am

There is something I’m not understanding about this story. He HAD JSTOR access through his job right? Why was he hacking it anyway?

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Britta 07.22.11 at 5:49 am

Um…I guess I don’t get how “the ends don’t justify the means” = dripping condescension? If I didn’t respect your intellect, don’t you think I would avoid throwing around terms like Marxist and Kantian and perhaps just use monosyllables?

Secondly, I don’t see how referencing leftwing politics of ressentiment is out of place when discussing…leftwing politics of ressentiment, which poo pooing MIT students and faculty’s inability to access JSTOR is. (No one is claiming it’s the worst harm ever, but it is a real and legitimate harm.) If these types of stunts were productive, why don’t we then molotov cocktail MIT’s library while we’re at it? Think of all the journal archives we could deny access to MIT students to! We could hit up some Starbucks on the way. My point is, not all laws are fair and just and certainly civil or even criminal disobedience are sometimes necessary, however, holding oneself above the law isn’t something to take lightly, no matter how righteous the cause appears. Also, once the ends justify the means, you might find people whose ends you don’t agree with achieving them with means you agree with even less. In the scheme of things, don’t think what Swartz did is particularly terrible, but I don’t think it’s particularly laudable either. In your comments, Lemuel, I find something distasteful about the vitriol directed against academics. Ivory tower types aren’t exactly pulling the strings of power, but they make great scapegoats. If people are profiting off of academic publishing, it’s not academics either.

Maybe I’m only speaking for myself, but my guess is most of us here who are highly sympathetic to free information and the copy left movement but critical of this particular stunt are critical of 1) the target and 2) the methods. As others have pointed out, JSTOR seems to have been targeted because it’s an easy target, not because it’s really evil. The result of this stunt may be journals pulling out of JSTOR or hiking their fees, which then makes the stuff on JSTOR less affordable and journal articles less accessible/affordable. In the short and medium term (and who knows about the longterm), hobbling JSTOR isn’t going to increase access to information. Secondly, a guy who *already* had legitimate access to JSTOR through Harvard decided to literally physically break into MIT and disrupt their services. If he’s so into doing things with “lots of inconvenience” why the hell not mess up his own JSTOR access? If we wants to make a statement, he did so in a way which minimized inconvenience for him and maximized it for others. That seems kind of self serving rather than selfless.

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Britta 07.22.11 at 5:50 am

In writing my comment, I realize Sebastian H basically said my final point. :)

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kidneystones 07.22.11 at 6:26 am

Lemuel (sorry about getting the name wrong, really)

Several people have suggested alternative methods of accessing j-STOR. If you really can’ t access digital services and you really need the service, many university libraries offer special borrower privileges. There’s normally a fee.

Hope this helps.

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x.trapnel 07.22.11 at 6:40 am

Am I supposed to not mind if on behalf of bringing better access to knowledge to the world’s poor, Swartz had for some reason broken into my house and hidden himself in my basement?

I think we really need to be careful about letting abstractions and metaphors blind us to the concrete phenomena at issue; many of the arguments for both IP maximalism and strict deference to the law rely on precisely this sort of conceptual obfuscation.

For example, there are very real differences between an institutional workplace and a private home, which mean that invasions of the latter threaten personal privacy and bodily and psychological security in a way that the former simply do not. This is one reason why, for example, illegal occupations of factory floors, etc., are in fact morally quite distinct from, e.g., the same workers taking up residence in the factory owner’s household–and attempts to blur these distinctions by appealing to property rights, pure and simple, hide rather than clarify the moral stakes. Student occupations of university buildings in past decades were also illegal, also trespassing, but again: quite different from the occupation of residences, and not appropriately lumped together for the purposes of moral evaluation.

Breaking into an MIT server closet is bad, and none of you should do it. But, no, it’s really not the sort of badness that should get someone put through the madness of a federal prosecution–this goes back to the general point about the USA being far too punitive. And violating the terms of access to a database is typically wrong, but again, we should be clear about what it is and it isn’t. It’s not (likely) that Swartz was breaking a contract he personally and with full consideration signed or a promise he made (which are typical ways we create obligations for ourselves); he was rather accessing it in an unauthorized way that JSTOR does not typically allow. And the wrongness of that is something that really does need to be judged based on what JSTOR is–unauthorized access to a database that contains patients’ medical records would be morally quite different, because there are simply different human interests at play (namely patients’ privacy, etc.). This is why we cannot and should not discuss this prosecution without discussing the absurd academic publishing ecosystem, because it goes to the heart of whether or not the database is one like the hypothetical medical database, unauthorized access to which is inherently wrong.

Now, the disruption his scraping caused the JSTOR servers directly, and the inconvenience to MIT community members as a result of JSTOR’s response to the scraping–these are clear and non-trivial harms. But even here, there’s an important distinction to be made from the direct harm of the former (quite bad! don’t access a useful service in a way likely to disrupt its functioning!) and the mediated-by-JSTOR’s-agency harm of the latter. It’s a reach to put the MIT outage entirely on Swartz, morally speaking, though one would have to know more about how the decisions were made to block the whole domain.

Those who believe in a strong, content-independent obligation to obey the law will be unmoved, and say I’m missing the point; to which I simply reply that the arguments in favor of such an obligation are unsound, though obviously a comment box isn’t the place to refute them.

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x.trapnel 07.22.11 at 6:42 am

(Also, thanks to Lemuel for reminding me of those papers, at least one of which I’d meant to read awhile back but never got around to. And for generally speaking sense.)

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Phil 07.22.11 at 8:00 am

Lemuel:

Do you have any idea how frustrating that is? No, of course not

As I mentioned above, I’m an academic at an institution with very limited journal access – most of JSTOR is off-limits, we haven’t got Hein Online, and so on. So yes, I know how frustrating that is.

And now AndrewF and Phil step up to say, “Oh, well, that does seem a bit unfair. And as soon as you come up with a way to change it that is perfectly legal, causes no inconvenience to anyone, and is 100% guaranteed to work, we’ll be totally in favor of doing something about it.”

I think you’re mistaking terror for complacency. I am keenly aware of just how screwed-up the system currently is, and why. I don’t want anyone to take actions with a high probability of leading to things being screwed up even more – the exception being periods of widespread & sustained mobilisation, i.e. periods when there’s a chance we can win. (OTOH, maybe Swartz & co are Tarrow’s “early risers”* and it’s all going to be great. That would be good.)

x.trapnel:

This is why we cannot and should not discuss this prosecution without discussing the absurd academic publishing ecosystem

I agree with that (and the rest of the comment), but I also think we can’t discuss Swartz’s actions without discussing the likely effect of attacks on the academic publishing ecosystem.

*”A few people who break away from the forms of collective action in unusual circumstances produce intensive mass movements at the peak of protest waves … The early risers open the gates of convention; the latecomers pour through them.”

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dsquared 07.22.11 at 8:07 am

I am in a silly mood this Friday and so I am going to “go there” with an absurdly over-the-top analogy – does anyone consider how much damage the Montgomery bus boycotts did to the public transport system? And who suffers when the bus companies go bust, eh? It’s the poor old workers again! I considered making the point with respect to any old ordinary strike, but nah bollocks, the Civil Rights struggle it is. Just for the avoidance of doubt, the point I want to make is that Aaron Swartz is the exact moral and political equivalent of Dr Martin Luther King, except with better hair and fewer questions about his PhD thesis.

Anyway … I don’t understand what Phil’s so terrified of. That the whole academic publishing industry might go bust? Good. We have websites these days. The journals don’t provide anything beyond credentialling – actually existing physics as it is done makes it look to me very likely that you can organise the pursuit of knowledge based on websites, working papers and word of mouth.

Or is it that Elsevier et al will “go Galt” and just take all the journals offline to see us suffer? I can’t see that working as a strategy for them.

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Bijan Parsia 07.22.11 at 8:41 am

Just for the avoidance of doubt, the point I want to make is that Aaron Swartz is the exact moral and political equivalent of Dr Martin Luther King, except with better hair and fewer questions about his PhD thesis.

This is utterly absurd! You completely neglect the parallel between the Great Downloading and Rosa Parks not giving up her seat. Aaron Swartz unites in his own person both these titans of civil disobedience and civil rights. If he but cheats on his taxes next year and mentors a young hacker, we can throw in Thoreau and Socrates as well!

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dsquared 07.22.11 at 9:12 am

Does anyone have a magnifying glass? I was playing a sad song for the students of MIT who might have been slightly delayed in their access to JSTOR, but I dropped my violin and I cannot find it, because it is so very, very very tiny.

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Cian O'Connor 07.22.11 at 10:12 am

Hmm. The following might make Aaron’s case more difficult:
http://www.earlham.edu/%7Epeters/fos/2008/09/guerilla-oa.html

On the other hand, we may have a interesting defense:

http://arstechnica.com/tech-policy/news/2011/07/swartz-supporter-dumps-18592-jstor-docs-on-the-pirate-bay.ars

If, as he says, these documents are in the public domain. Well maybe that’s what Aaron was doing.

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kidneystones 07.22.11 at 11:15 am

dsquared writes…

The best evidence that there’s real value in the J-STOR journals come from the act of hackery under discussion. I can only assume that dsquared simply doesn’t know the riches in J-STOR, not to mention other academic archives. The system clearly needs improvement. The mere mention of destroying the existing system in a discussion where some are willing to defend the illegal breach of the MIT system is troubling. The hack could just as easily have been malicious.

We need more funding for libraries and digital collections and much improved access to same. I’m not at all clear how this money will be raised, but I don’t see how breaching the system or scrapping journals is going to make anyone want to commit more funds to improving archives and libraries. But that may be the minority view.

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Emma in Sydney 07.22.11 at 11:43 am

“I don’t see how breaching the system or scrapping journals is going to make anyone want to commit more funds to improving archives and libraries.”

I do. If enough academics took the means of academic publishing production back into their own hands and out of the hands of Elsevier and the rest of the crooks, by publishing in open access journals, libraries would have heaps more money which they might use to install and run open journal systems so that more academics could publish their work freely. After all, peer review is only asking your colleagues to do something for nothing, that they already do for profit making publishing companies. Get on the committee of your scholarly association. Persuade it to take its journal away from Elsevier and publish it online with free access. Offer to edit it. Ask your friends to help. Don’t be defeated before you even try.

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dsquared 07.22.11 at 11:53 am

I am pretty sure that the JSTOR journals and all their riches would not actually disappear if the economic basis of JSTOR was undermined. At worst, we could always ask Aaron Swartz for a copy.

Similarly, as the physics community shows, research and scholarship can exist and be published outside the current journal structure. I can see how, particularly in the current Research Assessment Exercise regime, it can often feel like a piece of work literally does not exist unless and until it is published in a top tier journal, but that’s not actually true.

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mitgrad 07.22.11 at 11:54 am

For example, there are very real differences between an institutional workplace and a private home, which mean that invasions of the latter threaten personal privacy and bodily and psychological security in a way that the former simply do not.

There is also a difference between the workers who actually work at a factory engaging in overt labor protests at that factory, and one individual with no connection to that factory surreptitiously entering the factory and picking a lock to enter a room full of expensive equipment for unknown purposes — it’s not crazy for the factory owners and factory workers to both wonder if that unknown person is committing theft, industrial espionage, whatever, and to have them arrested for trespassing if detected.

On the safety point, when I was at MIT there was actually a serious problem with theft of laptops and other portable electronics, which while sometimes were ‘inside jobs’, in many cases was traced to non-MIT individuals entering relatively unsecured office areas.

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engels 07.22.11 at 11:55 am

If I were to mug you at gunpoint on the street with a justification that I would then ship the contents of your wallet to help those in Haiti, who needed it more than you, we would think that my means were high-handed at best and a petty criminal justification at worst.

Given that Swartz’ supporters happily describe him as a ‘digital Robin Hood’ don’t you think you might be begging the question in favour of Kantianism here Britta?

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kidneystones 07.22.11 at 12:01 pm

Emma writes…

You quote from my comment and then proceed with your own suggestions, none of which address my principal concern: the damaging effect hacking systems may have on winning funding for the preservation of archival and digital collections. How exactly does breaching the system increase funding? You claim it will, but then offer only your contention that by bringing down J-STOR, etc, universities will have more cash to spread around. Don’t see it.

As for your second point, we already have unlimited access to publishing venues. This blog is just one them. Peer-reviewed journals require some form of funding. The collections need to be monitored and stored. I have no problem with improving access, but not at the expense of maintaining and adding to the collections.

Please don’t hack into any university systems or disrupt user access for anyone. You wouldn’t think that would need to be said on an academic blog, but evidently it does.

Cheers.

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Phil 07.22.11 at 12:14 pm

Nah bollocks yourself. I refer the learned gentleman to my previous caveat about periods of widespread & sustained mobilisation, i.e. periods when there’s a chance we can win. As a responsible academic writing in public, I’m not going to endorse illegal and destructive tactics, but there’s a big difference between using destructive methods in normal times & using them at a time when (a) things are kicking off already and (b) they help.

That the whole academic publishing industry might go bust? Good.

As I said fifty bajillion comments ago, “Anyone … who’s confident that Aaron’s plan would have led to the journal access provided by JSTOR being reliably replaced by something better, and that the ecology of academic publication would have been unharmed (or replaced by something better) – can go ahead [and justify that]”. Waving your hands and saying “the Web” is a start, I suppose. (Wasn’t your position that I’d misunderstood the situation anyway & there probably wasn’t any hacktivism involved?)

Emma – I still don’t see the connection. How does breaching the system & making it harder for journals to publish or libraries to subscribe to them actually promote open access journals? I think it’s the other way round – a credible OA academic ecosystem would undermine the existing system to the point where raids on copyrighted materials, and attacks on extended copyright periods, could be much more effective.

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dsquared 07.22.11 at 12:17 pm

Peer-reviewed journals require some form of funding

Not anything like the level of funding which might justify the current journal copyright system. Peer review and journal editing are recognised professional obligations of academics who want to get on in their careers. The arxiv actually exists, and works as a storage and monitoring system. Academic journal publishing is a notoriously profitable business, and that profit represents a tax on the system.

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Phil 07.22.11 at 12:21 pm

At worst, we could always ask Aaron Swartz for a copy.

In another comment that seems to have slipped under your radar, I wrote:

If those journals could have been hosted by an open-access server with the credibility of Wikipedia – or even the credibility of WikiLeaks – do you not think that cash-strapped institutional librarians would go for it? I think it would be awfully tempting.

My worry is that that wouldn’t be the end of the story. Some projects like this succeed; others die, get bought out, or get bought out and closed down.

Undermining the old system & replacing it with something better is a great idea, but let’s make sure somebody’s actually doing the spadework.

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dsquared 07.22.11 at 12:30 pm

Waving your hands and saying “the Web” is a start, I suppose

I wasn’t actually waving my hands when I said that, but recall that the World Wide Web was actually invented as a means of sharing research (at CERN). That’s what it’s for. And the Arxiv exists for physics researchers, and it works.

Wasn’t your position that I’d misunderstood the situation anyway & there probably wasn’t any hacktivism involved?

I still think this is the most likely situation, but actually I am increasingly thinking that academic journals delenda est. I don’t see how you can have an equilibrium with both profit and open-access journals, and I don’t see how you can get open-access journals to be the top in their field (ie break down the QWERTY effects) without doing something drastic.

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cantor 07.22.11 at 1:05 pm

a few sobering facts about the information this guy allegedly liberated:

1. 9 out of 10 times i can find whatever paper i’m looking for on scholar.google.com, the author’s website, or some other googlizable location.
2. most public libraries have access to jstor.
3. most articles in jstor are for specialists, i.e. people who work at universities and already have jstor.
4. many fields have already switched over to open access journals like arxiv.

i’m amazed by the “digital robin hood” moniker: it’s a very limited kind of activism to steal arcane journal articles from a not-for-profit company and give them to people who could probably find them in google or at the public library anyway.

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ajay 07.22.11 at 1:38 pm

I don’t see how you can have an equilibrium with both profit and open-access journals, and I don’t see how you can get open-access journals to be the top in their field (ie break down the QWERTY effects) without doing something drastic.

Nationalise them!
Reed Elsevier is only capitalised at £6.8 billion, and it’s more than just STM journals; there’s exhibitions and events, business publishing, Lexis/Nexis, risk analytics and so on. Even within the STM bit there are bits (book publishing) that you could keep as a profit centre. Split out the journals and open up the lot of them to free access, then reprivatise the rump of the company.
I mean, after all, we do nationalise things in this country, like banks.
And the key point here is that the UK government itself is, indirectly one of the main customers of RE – because university libraries and so on have to subscribe – and so that makes the numbers look even better.

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Bijan Parsia 07.22.11 at 1:50 pm

I support (inter)nationalization of journals. It’d be pretty easy and cheap and almost certainly smooth out the process a lot.

I love to see a mass movement of academics just moving their journals to university web sites. Obviously, “ownership” of journals is a tricky thing, but it surely can be done.

I’d happily joint a grass roots effort to republish all copyright free articles in JSTOR. All we need is a pledge to upload one public domain article a day (or week/whatever) to our own website, plus register with a crawler.

This seems legal, fails to inconvenience anyone, and could nicely raise awareness.

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Lemuel Pitkin 07.22.11 at 1:52 pm

I think you’re mistaking terror for complacency. I am keenly aware of just how screwed-up the system currently is, and why. I don’t want anyone to take actions with a high probability of leading to things being screwed up even more

Walking around terrified is no way to live, Phil. It lacks dignity.

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Andrew F. 07.22.11 at 1:52 pm

Lemuel @158: And now AndrewF and Phil step up to say, “Oh, well, that does seem a bit unfair. And as soon as you come up with a way to change it that is perfectly legal, causes no inconvenience to anyone, and is 100% guaranteed to work, we’ll be totally in favor of doing something about it.”

No, I said that actions like this backfire. They are counterproductive. I did not suggest waiting for a perfect solution.

Cracking doesn’t persuade anyone – especially governments or companies – that information can never be secure and so therefore should be free. It persuades them that more must be done to make it secure.

Suppose that Swartz had succeeded, and a huge percentage of JSTOR’s data was released, destroying much of JSTOR’s value. Other online providers of data would increase their investment in security, by attaching new conditions for access, by attempting to push some of the risk on to educational institutions, by restricting what can be downloaded and how articles can be viewed, and so forth.

In addition, the security risk of opening the site to a large new group is now magnified in dollar terms, which makes the companies that much less willing to experiment with the idea. Where once the question of broader access may have been focused primarily on price discrimination and enforcement, the security risk involved now becomes a more substantial part of the equation.

Information has become more, not less, controlled. The exercise has aggravated the problem it was meant to alleviate.

Moreover, perhaps most importantly, the cost to Swartz of this action, and to society from the opportunity-costs incurred by the prosecution and penalization of Swartz, aren’t worth the expected benefits of Swartz’s action.

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Bijan Parsia 07.22.11 at 2:01 pm

Moreover, perhaps most importantly, the cost to Swartz of this action, and to society from the opportunity-costs incurred by the prosecution and penalization of Swartz, aren’t worth the expected benefits of Swartz’s action.

Well, that remains to be seen, eh? I obviously don’t think it was brilliantly planned or executed, but that doesn’t mean that we can’t turn it to our advantage. That’s part of what’s annoying about the somewhat crappy DemandProgess statement about borrowing too many books. But a few false steps doesn’t necessarily lose the race.

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dsquared 07.22.11 at 2:13 pm

Suppose that Swartz had succeeded, and a huge percentage of JSTOR’s data was released, destroying much of JSTOR’s value. Other online providers of data would increase their investment in security, by attaching new conditions for access, by attempting to push some of the risk on to educational institutions, by restricting what can be downloaded and how articles can be viewed, and so forth.

Analogous arguments can be made about basically any act of civil disobedience there has ever been anywhere in the world ever.

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Lemuel Pitkin 07.22.11 at 2:13 pm

Cracking doesn’t persuade anyone – especially governments or companies – that information can never be secure and so therefore should be free. It persuades them that more must be done to make it secure.

Dogmatism. People weigh costs and benefits, big institutions especially. If maintaining fences becomes more expensive and less reliable, open-access models become more attractive. We’re already seeing this, it’s just not happening as fast as one would like.

Suppose that Swartz had succeeded, and a huge percentage of JSTOR’s data was released, destroying much of JSTOR’s value.

If you think that JSTOR’s value comes from its exclusive access to its content, you are very confused. Anything you can get through JSTOR, you can get through other online services as well. Its value comes from convenience. As I noted upthread, there is lots of empirical literature showing that in many cases unauthorized copies increase, rather than decrease the value of authorized copies. The mechanisms here are straightforward. An open-access JSTOR is going to mean lots more links to JSTOR. This (1) increases the value of the search function and any other genuine value-added that JSTOR continues to sell and (2) means more public visibility for JSTOR. Of course, if they are literally nothing but gatekeepers and have nothing else to sell, that won’t help them. But then they are just rent-collecting parasites and good riddance.

Information has become more, not less, controlled.

Maybe on your planet. On mine, when I’m interested in a book these days (even an obscure academic one) there’s a good 50 percent chance it’s available for free on library.nu.

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ajay 07.22.11 at 2:17 pm

Analogous arguments can be made about basically any act of civil disobedience there has ever been anywhere in the world ever.

Which is why civil disobedience is such a terrible way of getting anything done (first they ignore you, then they laugh at you, then they fight you, then they win). Yes, it’s had the occasional success in very favourable circumstances, but really, those are unrepresentative outliers. The best way to get things done is, as always, some combination of money, argument, and armed force.

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belle le triste 07.22.11 at 2:24 pm

How did arXiv get set up? Presumably a bunch of physicists simply decided to do it, and lo! there is was. Is there any reason it would be harder for other disciplines?

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Cian O'Connor 07.22.11 at 2:43 pm

Kidney Stones: the damaging effect hacking systems may have on winning funding for the preservation of archival and digital collections.

And yet we have the Internet Archive.

Are you this concerned about the damaging effect (and this one is measurable, rather than theoretical) that existing copyright laws are having on the preservation of archival and digital collections?

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Cian O'Connor 07.22.11 at 2:48 pm

Cracking doesn’t persuade anyone – especially governments or companies – that information can never be secure and so therefore should be free. It persuades them that more must be done to make it secure.

This is an argument that can be easily proved with a single counter-point.

A counter-point. The cracking of DRM and the sharing of music seems to have forced music companies to release music in a format that customers wanted (unencumbered by DRM) and at a price that seems to be reasonably fair. There also seems to be, despite all the doom/gloom predictions, a reasonable equilibrium between piracy and commerce.

That’s not to say it will always work, but you’re the one talking in absolutes.

One of the reasons that copyright makes me nervous, is that it gives copyright holders a monopoly. Monopolies are usually abused by rent-seekers; and that certainly seems to be the story of copyright over the last 20 years or so. It could be argued that piracy provides competition; ease of access, vs price.

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Phil 07.22.11 at 2:49 pm

So are we saying that Aaron didn’t do what he’s accused of, that he did it but it wouldn’t have done any damage, or that it might have done some damage and it’s a shame it didn’t?

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Cian O'Connor 07.22.11 at 2:53 pm

No, we’re having two separate arguments:
1) Aaron may, or may not, have done what’s he accused of. Wait for the trial before jumping to conclusions.
2) The existing academic publishing system is broken, and needs to be fixed by any means possible.

It would be good if people could keep the two separate, as it doesn’t exactly aid communication.

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Phil 07.22.11 at 2:55 pm

I’d happily joint a grass roots effort to republish all copyright free articles in JSTOR. All we need is a pledge to upload one public domain article a day (or week/whatever) to our own website, plus register with a crawler.

M3 T00 – this sounds like an excellent idea.

Analogous arguments can be made about basically any act of civil disobedience there has ever been anywhere in the world ever.

I keep saying this thing about circumstances making a difference; it seems pretty obvious to me, but maybe it needs saying again. The same action can be crucially effective, useful, futile or counter-productive, depending what kind of movement (if any) it’s embedded in and what level of radical activity supports it.

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Phil 07.22.11 at 2:58 pm

2) The existing academic publishing system is broken, and needs to be fixed by any means possible.

I don’t see anyone arguing that the existing academic publishing system is just fine. I think we’re mostly arguing about

3) What Aaron is accused of, assuming the accusation is accurate, would plausibly have helped fix academic publishing, and would in any case not have made matters any worse.

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Lemuel Pitkin 07.22.11 at 3:00 pm

The same action can be crucially effective, useful, futile or counter-productive, depending what kind of movement (if any) it’s embedded in and what level of radical activity supports it.

Sounds like you better start doing your part, then.

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dsquared 07.22.11 at 3:01 pm

Presumably a bunch of physicists simply decided to do it, and lo! there is was. Is there any reason it would be harder for other disciplines?

Basically physicists’ credential-building works differently from humanities. When you make the conceptual leap to realising that the economic (by which I mean “real”) function of a journal is the provision of credentialing and status to academics (rather than its spandrel function of categorising and collecting useful knowledge), a lot falls into place. It’s like the depth of insight you get when you realise that a university is a place that sells certificates of entry to the middle class, and then spends the money on its expensive hobby of research.

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Lemuel Pitkin 07.22.11 at 3:12 pm

a university is a place that sells certificates of entry to the middle class

OT, but this is an argument I haven’t seen developed properly — that academic credentials really developed as a way for children of middle-class families to inherit their parents’ class position, once it was no longer possible to just pass on the farm or shop. It would really be nice to see someone work through systematically how this works.

ISTR David Noble making a somewhat similar argument in America by Design — that WWI-era political elites supported the development of the professions –Noble is especially interested in engineers, but the same goes for doctors and lawyers — in part to limit class polarization. And you can find something like it in White Collar. But it’s such an obvious yet crucial point, there has to be some more recent definitive statement of it, no?

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Andrew F. 07.22.11 at 3:16 pm

dsquared @186: Analogous arguments can be made about basically any act of civil disobedience there has ever been anywhere in the world ever.

What are the countervailing forces, in this case, that would make this act ultimately productive? All acts of civil disobedience carry the risk of being counterproductive, but if the point of a given act is to change policy, then those risks should be outweighed by the expected value of productive effects. In this case I see a likelihood of counterproductive effects, and I cannot see any likely productive effects. I’m open to persuasion, though.

Lemuel @187: If maintaining fences becomes more expensive and less reliable, open-access models become more attractive. We’re already seeing this, it’s just not happening as fast as one would like.

Open-access models are attractive IF they are profitable. Fences can be expensive, but if your primary means of obtaining value is by controlling access then fences cannot be avoided.

If you think that JSTOR’s value comes from its exclusive access to its content, you are very confused. Anything you can get through JSTOR, you can get through other online services as well. Its value comes from convenience.

No, I said that if JSTOR’s data were released to the public then JSTOR would lose much of its value. There’s a difference between other services distributing the same data you are, for a fee, and that data being broadly available for free.

Of course, if they are literally nothing but gatekeepers and have nothing else to sell, that won’t help them. But then they are just rent-collecting parasites and good riddance.

Somehow I think publishers, and anyone else that spends substantial resources on creating and maintaining a database, will disagree with you. My point here is that their existence depends on the ability to sell access to their database, and if that is threatened then they will simply tighten their control of that access.

In other words, even granting that it would be better for them not to exist, attempts to crack their database and distribute their data will be counterproductive.

Maybe on your planet. On mine, when I’m interested in a book these days (even an obscure academic one) there’s a good 50 percent chance it’s available for free on library.nu.

When I said “[i]nformation has become more controlled, not less” I was referring to the likely effects of a release of much of JSTOR’s data to the public, not to the current state of affairs relative to the past.

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kidneystones 07.22.11 at 3:20 pm

Cian writes….

Good comments and good questions. In reverse order, your claim that we’re having two distinct arguments. Wrong, I’m afraid. The two arguments are separable and can exist independent of the other. However, in the argument about the broken system is being used to justify the hack.

Am I as concerned? No.

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Sebastian H 07.22.11 at 3:37 pm

Again, I know that as a non-JSTOR user I’m at the risk of looking stupid for asking this:

Why did he need to hack MIT for JSTOR when he had JSTOR access at his own university?

I’m sure it seems perfectly obvious to his defenders, and maybe his non-defenders. But I just don’t understand it.

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Cian O'Connor 07.22.11 at 3:54 pm

Am I as concerned? No.

So you’re more concerned about a theoretical loss, which is unquantifiable; than you are by a real and quite serious loss. There is a huge amount of copyrighted material, where the owners are either lost (orphaned works), or have an unrealistic idea about the value of the work (my neighbour re-releases obscure records; he’d release more if the owners of the copyright, distant relatives of the artist, didn’t have unrealistic expectations of the value, making it hopelessly uneconomic). This makes preservation extremely difficult, as one can be sued by the owner from infringement. The result is that copyrighted material is literally rotting.

I realise that this is tangential to JSTOR; but it points to wider issue with copyright. To many of the discussions end up in ‘might bes’, or concerns about the right of the creator. Whereas a more pragmatic approach; how we can best preserve our culture, while reasonably rewarding creators (note creators, not the distant second cousin of a long dead author) is ignored.

To take JSTOR. Most of the stuff in JSTOR has long been paid for. It was paid for when the journals were shipped out to the subscribing libraries. The residual rights after that were virtually nothing. The only reason that the material is now worth something is because of new technology, that these publishers had nothing to do with. The work was done by JSTOR (who do not receive the copyright royalties; which I believe is where most of the subscriptions money goes) in scanning this stuff, and building the interface.

JSTOR absolutely have a right to be paid for that work – but if copyright was abolished, they’d still be paid. Their value is in the easy access they provide, and the search/indexing tools. I’m not sure that the copyright holders deserve their ‘rents’ though.

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mitgrad 07.22.11 at 3:55 pm

dsquared is right on the whole point of traditional journals being vehicles to earn points towards tenure, from my social sciences vantage point at least.

I’m not a fan of the current system but I am honestly curious how things work in physics these days. Is it still important to have articles in traditional, non-open, peer-reviewed journals? Can you get the professional recognition you need for tenure just via new open-access formats like posting things to Arxiv?

I’d like to see a move to more open system, with Elsevier, Thompson-Reuters, SAGE, etc not collecting such monopoly profits. Since journal publication is not just a way to share knowledge though, but is so woven in to the whole system of academic hiring and promotion, it’s tricky to change.

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Cian O'Connor 07.22.11 at 3:57 pm

In reverse order, your claim that we’re having two distinct arguments. Wrong, I’m afraid. The two arguments are separable and can exist independent of the other. However, in the argument about the broken system is being used to justify the hack.

Well obviously they can be used together, but it would be better if people didn’t because we still have no idea what the ‘hack’ was supposed to achieve, if anything. People are making assumptions based upon very little more than the prosecution’s indictment. Sometimes the indictments are accurate, much of the time they are not. That’s what trials are for.

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Britta 07.22.11 at 3:58 pm

I think part of the issue is that there seems to be a gap between the high principles being espoused by Aaron’s supporters and the expediency his actions seemed to demonstrate. Every single one of his actions seemed designed to go after an easy target with maximum inconvenience to others and minimum inconvenience to himself. If he were to have hacked Harvard’s Elsevier account, many of us would be cheering. Instead, he went after *MIT’s* JSTOR, a *sliding-scale fee* NON-profit organization which provides somewhat affordable access to community colleges, high schools, and public libraries.

I agree that if academic publishing were better, perhaps something like JSTOR wouldn’t need to exist, or could offer all its services for free (it’s compilation and search functions make it pretty invaluable), but civil disobedience almost *never* works if your first act is to kick your imperfect closest allies in the shins. If we’re going to make analogies, Nader is a more apt comparison than MLK or Gandhi. (Or an analogy might be if MLK’s civil rights organizations ignored segregation in the south and instead focused on messing with northern white liberals who did serve blacks but still held racist beliefs typical of the time.)

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Cian O'Connor 07.22.11 at 4:00 pm

Since journal publication is not just a way to share knowledge though, but is so woven in to the whole system of academic hiring and promotion, it’s tricky to change.

Well its going to change at some point. Its more a question of whether it will change once its collapsed from the sheer cost, or in a more stable and structured fashion.

206

Cian O'Connor 07.22.11 at 4:03 pm

Okay one last time, as people really don’t seem to get this.

WE DO NOT KNOW WHAT AARON WAS TRYING TO ACHIEVE.

WE DO NOT KNOW THAT HE WAS ATTEMPTING CIVIL OBEDIENCE.

WE DO NOT KNOW WHAT HE WAS GOING TO DO WITH THE JOURNALS.

WE DO NOT KNOW IF HE PLANNED TO DISTRIBUTE COPYRIGHTED MATERIALS

Other possibilities include:
1. He was trying, in a rather anti-social fashion, to get a large number of journals for research purposes (he has done this before – so there is prior for this).
2. He was planning to liberate the OUT OF COPYRIGHT material contained within JSTOR

I mean I like a lynching as much as the next man, but still…

207

Lemuel Pitkin 07.22.11 at 4:13 pm

n analogy might be if MLK’s civil rights organizations ignored segregation in the south and instead focused on messing with northern white liberals

I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to ‘order’ than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: ‘I agree with you in the goal you seek, but I cannot agree with your methods of direct action’… “

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Britta 07.22.11 at 4:14 pm

Cian O’Connor,
Fair enough, except that 1. of your second point still doesn’t make what he did praiseworthy. He could have asked JSTOR for access to a large quantity of archives and received them, except he chose to instead download them illegally in a way which cost MIT its access. That would be like having an ID badge to get into an airplane hangar, and having the ability to ask the airplane hangar staff to open the large doors, upon which they would, but instead just choosing to fly the airplane through the side of the wall. If it’s making a statement, the statement is, “I want to make a statement” not “I’m liberating this airplane” or “I need this airplane.” If his project was about first getting access to the data to then analyze it, why do an unnecessarily illegal and anti-social fashion which would then overshadow his actual project?

If his goal were 2. of your points, that’s great, but why not do it at *Harvard* where he had access?

Sebastian H,
JSTOR provides subscribers with pdfs of articles for individual use. To download one, you have to click on an acceptance form saying your download is for individual use and you promise not to sell it or distribute it to others. My guess is, if someone is downloading at a rate fast enough to crash JSTOR’s servers, JSTOR and MIT became suspicious that this person is not primarily downloading for their research, but rather was systematically harvesting content off JSTOR. If he had downloaded more slowly, maybe he wouldn’t have triggered suspicion so quickly, or maybe he still would have.

209

Britta 07.22.11 at 4:19 pm

Lemuel,
What you quoted from was MLK responding someone questioning his actions in Birmingham, AL, which is in the South. I am arguing that what Aaron did would be akin to MLK *ignoring* the south in order to hold sit-ins at, say, Jewish delis in Brooklyn which served black people.

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Cian O'Connor 07.22.11 at 4:28 pm

Fair enough, except that 1. of your second point still doesn’t make what he did praiseworthy. He could have asked JSTOR for access to a large quantity of archives and received them, except he chose to instead download them illegally in a way which cost MIT its access.

My guess is that if this is what happened, he just got frustrated with the mass API offered by JSTOR. It didn’t do what he wanted, or did it very inefficiently (this seems very likely, to be honest). I’m not praising it, but its understandable (well I can understand doing it in a moment of madness. There but for the grace of God, and so forth). It certainly wouldn’t justify the prosecution, but it would justify sanctions by both MIT and Harvard.

If his project was about first getting access to the data to then analyze it, why do an unnecessarily illegal and anti-social fashion which would then overshadow his actual project?

Its pretty obvious he didn’t intend to get caught. The idea that this was a “statement” seems implausible, to put it mildly.

If his goal were 2. of your points, that’s great, but why not do it at Harvard where he had access?

I would imagine because he knew how to get access at MIT, and he didn’t at Harvard. The point when you decide to hack the system, the question becomes where is it easiest.

211

ajay 07.22.11 at 4:29 pm

an analogy might be if MLK’s civil rights organizations ignored segregation in the south and instead focused on messing with northern white liberals

It’s worth noting at this point that a lot of very effective direct action campaigns take exactly this approach. If you want to drive (say) the French out of your country, whose throats do you cut? Frenchmen’s? No, or rather no, not exclusively. No, you find those of your fellow Algerians who just want everyone to get along; who want a peaceful transition to an autonomous Algeria within the French Union, for example, or who want independence but are willing to take the time to get it gradually through peaceful means; and you kill them. Your most dangerous enemies aren’t the ones opposite you; they’re the ones competing with you for the backing of your natural supporters.

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Cian O'Connor 07.22.11 at 4:30 pm

If he had downloaded more slowly, maybe he wouldn’t have triggered suspicion so quickly, or maybe he still would have.

Or maybe he did that and he got caught, or maybe, or maybe. I think we’ve established there are far too many maybes at this stage to pass judgement. Given we don’t know what he was trying to do, or why; perhaps we can wait a little before lynching him?

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ejh 07.22.11 at 4:37 pm

Surely most acts of civil disobedience have these two things in common, that you understand exactly what they’re doing and you understand – because they say so – exactly why they’re doing it?

What did he mean by that? doesn’t normally apply.

214

Bijan Parsia 07.22.11 at 4:38 pm

Cian (@214, @208), is anyone lynching him or proposing to? At least here?

I think the worst that can be said is that people are making speculative moral and tactical judgements about particular scenarios. If the scenarios are substantively off (e.g., Aaron was framed), I don’t think anyone would want him to nevertheless be prosecuted!

Until there are further details, the situation changes, or there’s a specific call to action, I think the useful thing to do is to think about the scenarios and possible future action.

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Britta 07.22.11 at 4:39 pm

Cian

Where do you see anyone recently defending the sentence? I think it’s a given that legal prosecution against him is ridiculous, and I agree that sanctions from MIT and Harvard would be more appropriate. I see very few people defending that on this thread. I think we are debating the extent to which he comes off as an arrogant jerk through this action vs. a heroic martyr to the cause. I think anyone who decides their research is more important than that of thousands of other people combined, and so their project justifies exclusive accessing of those resources at the expense everyone else, that person, no matter how much I agree with their politics, is an arrogant jerk.

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Cian O'Connor 07.22.11 at 4:43 pm

Britta,
yeah but he’s being attacked based upon assumptions about what his intentions were. And for matter being defended (whatever else this was; it wasn’t civil disobedience. For reasons given by EJH).

217

Cian O'Connor 07.22.11 at 4:48 pm

Bijan,
nobody. Well save possibly mitgrad and kidneystones. I was exaggerating for effect. Given that nobody can agree about what plausible scenarios are, and there’s pretty wide range of possibilities, it has become rather silly. We have people arguing, where one person seems[1] to think it was an attempt at piracy, another an act of civil disobedience and a third an attempt to destroy JSTOR.

[1] I’m aware they might not think that, but its a measure of how confused this discussion has become, that its hard to tell what assumptions people are arguing from.

218

x.trapnel 07.22.11 at 4:57 pm

OTOH, maybe Swartz & co are Tarrow’s “early risers”

Phil, Henry keeps trying to gently correct you on this, and you really just need to take his word on it. There really is an actual copyright reform / “free culture” / anti-monopoly movement out there, best embodied by the Pirate Parties in various European countries and Free Culture campus groups in the US. It’s not just us creating just-so stories, as it might have been around 10 years ago. It’s at the point where, as Lemuel says, it’s time for others to start stepping up and doing their parts (the boring and effortful but necessary work of starting/supporting open journals in one’s chosen field, for example) rather than look for more respectable, or respectably organized, representatives to take the field.

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Britta 07.22.11 at 5:02 pm

Cian,
I don’t care what his intentions were. I care about his methods. I have over and over and over again said that, “no matter how good his intentions were, his methods and target were terrible.” The only way his intentions would factor in to my judgment would be negatively, if his intention were, to, say sabotage MIT to give Harvard a competitive advantage in something. I take it that his intentions were good. What sort of good I don’t know, and neither do you. However, his actions seem to be arrogant and thoughtless. When I say “the ends don’t justify the means” I don’t mean that if the ends were better, the means would be ok, but that the means aren’t really ok.

I think Ajay makes a good point that effective agitation is violent and unsavory generally designed to polarize and create extremism, which is in part why noble causes often end up with very poor results, e.g. independence movements which end up with brutal dictators and/or longstanding warfare, communist revolutions which end in everyone with glasses being murdered, etc. There might be a time in academic publishing when a scorched earth plan designed to eliminate anyone in between Elsevier and the Pirate Bay/Scribed etc. becomes necessary so that people are forced to take a strong stance (and yes, I would chose the Pirate Bay in a heartbeat), I just am not sure 1) that’s the best way to reform (revolutionize?) academic publishing, 2) if we’re quite at that stage yet.

220

x.trapnel 07.22.11 at 5:04 pm

(I mean–no, you don’t need to take his word, but it’s easy enough to look this stuff up and check. Cory Doctorow and Larry Lessig are two of the bigger names here, too.)

221

Andrew F. 07.22.11 at 6:16 pm

ajay @213: If you want to drive (say) the French out of your country, whose throats do you cut? Frenchmen’s? No, or rather no, not exclusively. No, you find those of your fellow Algerians who just want everyone to get along; who want a peaceful transition to an autonomous Algeria within the French Union, for example, or who want independence but are willing to take the time to get it gradually through peaceful means; and you kill them. Your most dangerous enemies aren’t the ones opposite you; they’re the ones competing with you for the backing of your natural supporters.

You are correct about the FLN’s actions but incorrect about the objective. The objective was not to win the backing of the population but to prevent the population from supporting the French. It’s an important distinction if you’re going to use the Algerian War as an analogy for political conflict in stable democratic societies.

In the Algerian War, the FLN could rely on their own brutal intimidation of the populace to ensure cooperation – at least while the French failed to provide security. In a stable democratic society, that’s not really the case. Alienate the moderates and you don’t win the war; you probably lose the vote.

222

mitgrad 07.22.11 at 6:22 pm

I wasn’t defending the huge theft charge vs JSTOR. It does seem reasonable to prosecute him for trespassing against both property and electronic systems at MIT, though by itself that would mean a state, not federal prosecution and some sort of misdemeanor with fine and probation as a sentence. The acts of breaking into a locked room and physically messing with an MIT-owned router are what put it over the edge for me. If all he’d done was to violate MIT’s TOS while connected as a normal guest user, then no, certainly not criminal chargers for the first round (i.e., before he knew beyond a doubt that his actions could cause campus-wide disruptions).

223

Phil 07.22.11 at 7:29 pm

There really is an actual copyright reform / “free culture” / anti-monopoly movement out there, best embodied by the Pirate Parties in various European countries and Free Culture campus groups in the US.

I just don’t think this will do. (And I’m aware of Cory and Larry, God knows.) It comes back to ejh’s point about civil disobedience: the very fact that we don’t know what Aaron Swartz’s hack was meant to achieve, or what agenda it fits into makes it impossible to defend it politically. Invoking the (small and incoherent) ‘Pirate’ movement only raises more questions. But let it be said – again – that if what we’re debating is whether Aaron Swartz should be looking down the barrel of a 35-year prison sentence, the only possible answer is Hell No. In fact, I don’t see anyone arguing the contrary.

If, however, the question is whether Aaron Swartz’s actions assuming them to be as charged by the FBI should be defended, then I think we really have got problems. If that’s the movement Aaron’s actions represent, it’s a small and incoherent movement

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Phil 07.22.11 at 7:30 pm

Readers, please mentally delete the last paragraph – I did.

225

leederick 07.22.11 at 9:25 pm

“How did arXiv get set up? Presumably a bunch of physicists simply decided to do it, and lo! there is was. Is there any reason it would be harder for other disciplines?”

The reason that arXiv took off with physicists is that in fast moving fields it is important to prove you got there first and communicate results fast, hence pre-print archives. They didn’t have a problem with journals’ role in credentialing or their monopoly profits, they had a problem with waiting for peer review and publishing deadlines.

arXiv is great. But it’s sparse, lots of stuff isn’t uploaded there. Lots of final published versions of articles aren’t uploaded. Journals still serve a purpose, if you publish in a journal you know it will be kept in a legal deposit library and people will be able to get a copy of your paper, baring some major catastrophe. Who knows whether arxiv will be around in 20 years time – let alone all the other preprint archives.

There has been a political failure: governments need to mandate uploading of publicly funded research in open archives managed by national libraries and funded by statute. That would solve pretty much all the journal access issues, but you couldn’t end journal publication at the moment without causing real damage to scholarship.

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Britta 07.22.11 at 9:45 pm

Leedrick,
Government funded open archives sounds like a great idea. Unfortunately, in the US (and sounds like the UK too) there’s been a massive government withdrawal from funding for academic research. The US government has slashed Title VI funding (which funds language study (FLAS) and dissertation research in non-Western countries (Fulbright-Hayes DDRA), among other things) and is threatening to cut NSF funding for social and behavioral sciences. As grad students and researchers scramble like crazy as each source of funding rapidly dries up, it looks like privately funded research or funding only for research relevant to the state department is the way of the future. Such acts will also exacerbate inequalities between universities, because in the worst case scenario, wealthy universities with deep pockets will find ways to fund research with internal grants, whereas poorer universities will have face more competition for smaller amounts of funding. Journal access is a good example of an unexpected repercussion of this, because it’s harder to demand that the results of privately funded research be made free to taxpayers, and also hard to fund making that sort of research public.

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Substance McGravitas 07.22.11 at 10:23 pm

Government funded open archives sounds like a great idea.

Obviously, if people can pay JSTOR they can pay someone else, so direct funding is not a necessity. Some sort of library consortium maybe?

228

kidneystones 07.22.11 at 10:53 pm

Cian writes….

Re: loss from copywrite. No, your right. The quantifiable loss from copywrite violations is clearly the greater problem. Re: reverse order. I agree that intent is an imporant factor. The discussion is chaotic, but I see that.as a positive.

Cheers

229

roy belmont 07.23.11 at 12:14 am

I once watched horrified as a large adult male sea elephant attempted congress with a small juvenile male sea elephant, repeatedly, with Junior wailing and scurrying and pitifully trying to get away.
However, the dynamic involved there, well goodness. That would be “Me big, you small.” Easy enough to transcend, ethically. But the reason for “big” is prior existence. “Me here first. So me big.” Hard to view dispassionately, as the immediacy of disgust and outrage, for me, as a card-carrying mammal, was very powerful.
Nothing JSTOR has accomplished, or attempted to accomplish, transcends that dynamic.
There are plenty of folk around, beacoup plenty, who are capable and willing to voluntarily create maintain and etc. everything and anything JSTOR has to offer.
Except that they do have it, and won’t let go of it.
Getting in-between large numbers of people and things they want is a surefire path to prosperity. Pretending to be providing an accessional service while bottlenecking that access and using the thuggish properties of current legal statutes to defend that artificial unnecessary bottleneck would be JSTOR’s, or rather its human command’s, ethical failing.

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x.trapnel 07.23.11 at 12:38 am

Just another reminder that the Swartz thing is part of a broad, and fairly recent, policy shift towards using US criminal law as a standard part of copyright enforcement: US requests British student extradited to face criminal charges for running a TV/movie links website.

231

Fr. 07.23.11 at 10:41 am

I can back up Phil’s point at 225 about European Pirate Parties being small and incoherent, at the probable exception of Sweden. There are strong copyright reform movements in Europe, but they do not take that form, at least not in Britain, France or Germany. FLOSS and A2K activism, as well as more conventional consumer pressure groups, are much more important in that regard.

That said, I have absolutely no idea whether this is directly relevant to the Aaron Swartz story, but I have immense sympathy for him and share virtually everyone’s view about the disproportionate prosecution machine that has fallen upon him. The publishing system is not the only system with a huge problem here. All in all, I think Cian’s cautious position at 47 best represents my own views so far.

232

LFC 07.23.11 at 4:34 pm

I’ve looked through this thread, not read every word of all the comments.

Two things occur to me. First, PHB @2 said journals are simply a mechanism for academic advancement, not for exchanging information. Wrong. (If that were the case, no one would care so much about access to JSTOR in the first place.)

Second, everyone here is exercised, in different ways, about access to electronic information, but there seems to have been little or no discussion of physical access to university libraries. There are still things called books which reside on shelves, and it is utterly ludicrous to suggest that if one had access to JSTOR one would therefore have access to all relevant info on a given topic. Some people seem to think everything worth finding about a subject is available in electronic form. No. There is an enormous amount of information that is not available in electronic form and probably never will be.

On physical access to libraries: AFAIK there is only one university library in the metropolitan area where I live from which I can borrow books (physically take them out), and that is only b/c I have an alum borrowing card, having gone to grad sch. there. At the university where Henry teaches, AFAIK I cannot even walk into the library under its current policies b/c I am not a GW student or alum, let alone take a book out. Would I be justified in staging a sit-in at the Gelman Library of George Washington University, or breaking in and stealing books from it (assuming that were possible) and then copying and returning them, or taking a baseball bat and trying to smash its no-doubt extremely thick windows? If it’s unfair for person X living in the same city as Gelman Library not to have access to its JSTOR account, isn’t it just as unfair for X not to be able to walk into Gelman Library? (Just asking.)

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LFC 07.23.11 at 4:37 pm

Sorry, the italics in above comment are a mistake.

234

LFC 07.23.11 at 4:40 pm

P.s. Gelman access policies I believe also extend to current students at institutions that belong to the Washington Research Library Consortium (or whatever it’s called exactly), but that’s it.

235

Bijan Parsia 07.23.11 at 5:38 pm

Hey, LFC,

FWIW, it seems you can get borrowing privileges if you become a Friend of the Libraries at the sponsor level which costs $250/yr. You can get access alone for $100.

Foggy Bottom/West End residents have free access and summer borrowing privileges are only $5/yr.

I would hope that most universities would be willing to waive or slide the scale.

236

Bijan Parsia 07.23.11 at 5:39 pm

Oops, forgot the link.

237

otto 07.23.11 at 7:06 pm

I’m not too sure what my views are on this question as a whole, but I think that the essential point re. the electronic academic journal databases (and unlike physical libraries etc) is that universal access could be offered to back issues at essentially zero marginal cost (caveat, caveat, blah, blah).

238

LFC 07.23.11 at 9:04 pm

@Bijan Parsia: Thanks.

239

David 07.23.11 at 11:56 pm

(de)merits of the hacking — actual physical hacking, it appears — the Seattle Public Library has no JSTOR access and it is one of the better public library systems. Non-student or faculty access at the UW library is increasingly a pain, if not actually discouraged.

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David 07.23.11 at 11:57 pm

(de)merits of the hacking — actual physical hacking, it appears — aside, the Seattle Public Library has no JSTOR access and it is one of the better public library systems. Non-student or faculty access at the UW library is increasingly a pain, if not actually discouraged.

241

Andrew F. 07.24.11 at 11:06 am

Worth noting:

(1) JSTOR is run by ITHAKA, a not for profit organization. I cannot find any audited financial reports on ITHAKA or JSTOR, and so it is very difficult to tell how much the service costs to provide, or how much publishers demand. I did come across a note in an Andrew W. Mellon Foundation report that the Foundation had paid 875,000USD to ITHAKA in one year for IT services.

(2) Just at a glance, Reed Elsevier has remarkably high profit margins, mostly drawn from its electronic business. The business, in other words, is highly successful. So the largest private owner of private electronic access to journals, at least, can afford to spend more money on fences – a lot more money, in fact.

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jack lecou 07.26.11 at 5:37 pm

Late to the party, but a technical point I hadn’t seen anyone make:

Several people are trying to make hay out of the idea that this was selfish and reckless because it deprived thousands of other researchers and students of access (for a brief period of time). But this only holds up if that was a foreseeable consequence – and I don’t see how it could have been.

For one thing, were I in Aaron’s shoes, I probably would have run some back of the envelope numbers to decide how many requests/megabytes per second I figured the JSTOR servers could at least handle without too much trouble, i.e., without actually crashing – which I obviously wouldn’t want. Assuming they did actually crash, it’s likely he simply overestimated their technical capabilities.

Second, while I might decide to trade off speed for stealth, and thus run it fast enough that I thought I ran a high risk of getting noticed, I would certainly NOT assume that the likely countermeasure in that event would be lost access for ALL OF MIT.

That strikes me as pretty ludicrous. Unless Aaron’s spider was somehow spoofing a range of IP addresses across the whole MIT network, or was the collection point for a distributed worm or something (both of which I doubt), I fail to see how blocking all of MIT was a predictable response. I don’t know the exact topology of the closet his box was in, but in his place, I would probably assume that at most the IP address of the machine I was using, or maybe a nearby router might get blocked. NOT all of MIT.

(And of course, Cian’s point about “tunnel vision” @92 also rings very true. Some of these things may have crossed his mind – especially something like, “how fast can I run it without getting noticed,” but it wasn’t necessarily altogether well thought out.)

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