Aaron Swartz indicted

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.

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.

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.

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.

[aeiou]Hey nick s (#6),
I’m taking your car and driving to Nunavut to give it to an indigenous tribe, because I think everyone should have access to a car. Much like the idea of owning intellectual property, the whole idea of having to register and insure and actually OWN a car to be able to drive it is idiotic.

And I rejected that (barely) plausible condemnation of Swarz for my own selfish one (though if my kid had Leukemia, I would punch him in the nose, just on principal) . If you’ve ever lived in the university library for a couple months working to finish your thesis, you know the incalculable value JSTOR (and systems like it) provide academics. Having to go for days without being able to complete research is crippling (and if I were the librarian, I’d punch Swarz in the nose). And Swarz obviously doesn’t give one shit about his “fellow” academics. He’s (allegedly, of course) a selfish, self-aggrandizing little bastard.

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.

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.

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.

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.

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.

“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.

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.

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.

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.

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!

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.

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?

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.

Hi,

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

Have a nice day,
Antti

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.

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.

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.

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

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.

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.

(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. )

@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.

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.

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?

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.

@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.

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…

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.

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.

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.

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.)

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.

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.

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.

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.)

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

Not in practice.

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.

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.

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.

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.

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.

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.)

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.

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.

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.

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.

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.

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?

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

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.

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.

(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.)

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?

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.

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.

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?

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.

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!

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?

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.”

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

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

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.

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.”

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!

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.

“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.

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.

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.

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.

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.

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.

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.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.)

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…

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.

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.

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?

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.

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).

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.

(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.)

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).

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

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.

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

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.

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.)

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.

Oops, forgot the link.

@Bijan Parsia: Thanks.

(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.

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.)