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TECHNOLOGY AND THE LAW

Swartz “Steals” for Science

Hacking Charges Against Prominent Internet Activist Highlight Academic Information Access Issues

SOURCE: Aaron Swartz (Creative Commons) Aaron Swartz, co-founder of Reddit, internet programmer, and former Harvard Center for Ethics Fellow was indicted on charges of criminal hacking last week for allegedly downloading 4.8 million documents, primarily law and scientific journals many of which were surely copyright-protected, from the academic database JSTOR from a guest account on the MIT network.

Intellectual property rights activist, programmer, and former Harvard Center for Ethics Fellow Aaron Swartz was indicted on hacking charges last week for allegedly downloading 4.8 million documents, primarily law and scientific journals many of which were surely copyright-protected, from the academic database JSTOR from a guest account on the MIT network. The charges carry a maximum 35 years in prison and a $1 million fine.

John Schwartz at the New York Times summarized the case:

“A respected Harvard researcher who also is an Internet folk hero has been arrested in Boston on charges related to computer hacking, which are based on allegations that he downloaded articles that he was entitled to get free.”

While the details according to the indictment sound more dubious–Swartz allegedly covered his face with a bike helmet while breaking into a closet to connect to a hard access point to the MIT network–Schwartz certainly has the gist correct. Guests at MIT are granted access to the network’s JSTOR license so Swartz was using a legitimate pathway to access the information.

Though he is charged with violating the MIT and JSTOR Terms of Service Agreements by using a pseudonym, otherwise evading attempts to limit his access to the network, and using an automated script to download files en mass, he has since settled the matter with both wronged parties. Neither decided to press charges, and JSTOR even went as far as to issue a statement saying they have “no interest in this becoming an ongoing legal matter.” But that didn’t stop the United States Attorney’s Office for the District of Massachusetts from bringing computer intrusion, fraud, and data theft charges hinging on the Terms of Service violations against Swartz on July 19.

This case raises some interesting questions about the nature of intellectual property in the digital world. While the United States Attorney’s Office accuses Swartz of “stealing,” there is no mention of copyright infringement in the indictments, and theft is a difficult term to define in a situation where the wronged parties in fact did not lose any property. JSTOR and MIT did not suddenly lose all those articles from their server when they were downloaded; all that occurred was the copying of information by an individual who had legitimate access to JSTOR’s hosted files.

This isn’t Swartz’s first run-in with the law; in 2009 he was investigated by the FBI for using an automated script to download public records from a library participating in a trial program allowing free access to the Pacer government court record search system. They claimed his automated downloads of 20 percent of the archive was the equivalent of stealing documents worth $1.5 million dollars, but the investigation was later closed without any charges. (Swartz obtained his FBI file from this period via a Freedom of Information Act request and has since posted it on his blog.)

The continued targeting of Swartz by law enforcement certainly serves to highlight the government’s increasingly dated response to the ongoing conflict between the commercialization of public information and the movement to use technology to democratize information access.

If his goal was to make a statement through civil disobedience, then it would seem that Swartz could have done a better job of being noticed. That he allegedly tried to cover up his information liberation campaign rather than doing it publicly and embracing the consequences weakens the credibility of his activism. But charging Swartz with criminal hacking for his conflict with MIT and JSTOR while far more nefarious cybercrimes are being perpetrated seems an odd choice of priorities, especially when his information liberation campaigns have focused primarily on academic or non-copyright protected public documents.

It is unclear if Swartz intended to release the JSTOR documents into the wild or use them for academic research, but it appears that at worst the end result may have been the distribution of the research he downloaded from JSTOR via peer-to-peer networking. Currently, scholarly research is trapped in an academic-commercial publishing complex run by for-profit publishers. Much of the research held there is supported by public funds, but in the academic publishing world neither the authors nor peer-reviewers are generally compensated, with the profits going to the commercial publishers or databases such as JSTOR who act as gate keepers to the wealth of public domain academic knowledge that many would argue should be available to all.

These circumstances have combined to cause hyperinflation of journal subscription costs, threatening institutional access to the resources the academic community has produced and amounting to an acknowledged academic publishing crisis. Many universities, including Harvard, have turned to open access policies that ensure authors and institutions have the ability to share their research freely in response. If Swartz’ goal were to “liberate” the research he downloaded from JSTOR by allowing its free circulation on the Internet, it is hard to argue the authors, the scientific process, and society as a whole would do anything but gain as the result.

The vast majority of responses from the science and technology community have been sympathetic to Swartz. At least one activist responded to the indictment with action: A man identifying himself as “Greg Maxwell” uploaded a 32 GB cache of 18,592 “stolen” articles to well-known file-sharing site, ThePirateBay.org, citing Swartz’ indictment as the direct reason. The articles were all in the public domain, but currently unavailable to the public except through JSTOR with per article prices ranging between $8 and $19.

Maxwell included a statement summing up his stance:

“The liberal dissemination of knowledge is essential to scientific inquiry. More than in any other area, the application of restrictive copyright is inappropriate for academic works… [a]nd unlike ‘mere’ works of entertainment, liberal access to scientific work impacts the well-being of all mankind. Our continued survival may even depend on it.”

This is not an endorsement of Swartz’s alleged actions–he may well be convicted for his law breaking. But at the end of the day, we should take this as an opportunity to evaluate how a perhaps profoundly broken system limits scientific innovation and hinders the public’s access to research it often has already paid for.

Any judge evaluating this case would be well advised to look at last year’s high profile lawsuit against Google, in which the Internet titan was sued for making-public millions of pages of copyright-protected books without permission. But in that case no criminal charges were filed; the suit ended with a settlement in civil court. Let’s hope the judges hearing Swartz’s case take this as a precedent. If Swartz is punished for challenging a legal system in need of reform, and faces it with dignity as a good activist should, he will have given us an opportunity to reflect on what we need to do to bring 20th century intellectual property laws in line with the realities of 21st century information technology.

Andrea Peterson is the Assistant Editor for Online Outreach and Analytics at the Center for American Progress.

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