The Occasional Pamphlet

William G. Bowen, founder of JSTOR

[Update January 13, 2013: See my post following Aaron Swartz’s tragic suicide.]

Aaron Swartz has been indicted for wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. The alleged activities that led to this indictment were his downloading massive numbers of articles from JSTOR by circumventing IP and MAC address limitations and breaking and entering into restricted areas of the MIT campus to obtain direct access to the network, for the presumed intended purpose of distributing the articles through open file-sharing networks. The allegation is in keeping with his previous calls for achieving open access to the scholarly literature by what he called “guerrilla open access” in a 2008 manifesto: “We need to download scientific journals and upload them to file sharing networks.” Because many theorize that Swartz was intending to further the goals of open access by these activities, some people have asked my opinion of his alleged activities.

Before going further, I must present the necessary disclaimers: I am not a lawyer. He is presumed innocent until proven guilty. We don’t know if the allegations in the indictment are true, though I haven’t seen much in the way of denials (as opposed to apologetics). We don’t know what his intentions were or what he planned to do with the millions of articles he downloaded, though none of the potential explanations I’ve heard make much sense even in their own terms other than the guerrilla OA theory implicit in the indictment. So there is a lot we don’t know, which is typical for a pretrial case. But for the purpose of discussion, let’s assume that the allegations in the indictment are true and his intention was to provide guerrilla OA to the articles. (Of course, if the allegations are false, as some seem to believe, then my claims below are vacuous. If the claims in the indictment turn out to be false, or colored by other mitigating facts, I for one would be pleased. But I can only go by what I have read in the papers and the indictment.)

There’s a lot of silliness that has been expressed on both sides of this case. The pro-Swartz faction is quoted as saying “Aaron’s prosecution undermines academic inquiry and democratic principles.” Hunh? Or this one: “It’s incredible that the government would try to lock someone up for allegedly looking up articles at a library.” Swartz could, of course, have looked up any JSTOR article he wanted using his Harvard library privileges, and could even have text-mined the entire collection through JSTOR’s Data for Research program, but that’s not what he did. Or this howler: “It’s like trying to put someone in jail for allegedly checking too many books out of the library.” No, it isn’t, and even a cursory reading of the indictment reveals why. On the anti-Swartz side, the district attorney says things like “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars.” If you can’t see a difference between, say, posting one of your articles on your website and lifting a neighbor’s stereo, well then I don’t know what. There’s lots of hyperbole going on on both sides.

Here’s my view: Insofar as his intentions were to further the goals of proponents of open access (and no one is more of a proponent than I), the techniques he chose to employ were, to quote Dennis Blair, “not moral, legal, or effective.”

If the claims in the indictment are true, his actions certainly were not legal. The simple act of downloading the articles en masse was undoubtedly a gross violation of the JSTOR terms and conditions of use, which would have been incorporated into the agreement Swartz had entered into as a guest user of the MIT network. Then there is the breaking and entering, the denial of service attack on JSTOR shutting down its servers, the closing of MIT access to JSTOR.  The indictment is itself a compendium of the illegalities that Swartz is alleged to have committed.

One could try to make an argument that, though illegal, the acts were justified on moral grounds as an act of civil disobedience, as Swartz says in his manifesto. “There is no justice in following unjust laws. It’s time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture.” If this was his intention, he certainly made an odd choice of target. JSTOR is not itself a publisher “blinded by greed”, or a publisher of any sort. It merely aggregates material published by others. As a nonprofit organization founded by academics and supported by foundations, its mission has been to “vastly improve access to scholarly papers”, by providing online access to articles previously unavailable, and at subscription rates that are extraordinarily economical. It has in fact made good on that mission, for which I and many other OA proponents strongly support it. This is the exemplar of Swartz’s villains, his “[l]arge corporations … blinded by greed”? God knows there’s plenty of greed to go around in large corporations, including large commercial publishing houses running 30% profit margins, but you won’t find it at JSTOR. As a side effect of Swartz’s activities, large portions of the MIT community were denied access to JSTOR for several days as JSTOR blocked the MIT IP address block in an attempt to shut Swartz’s downloads down, and JSTOR users worldwide may have been affected by Swartz’s bringing down several JSTOR servers. In all, his activities reduced access to the very articles he hoped to open, vitiating his moral imperative. And if it is “time to come into the light”, why the concerted active measures to cover his tracks (using the MIT network instead of the access he had through his Harvard library privileges, obscuring his face when entering the networking closet, and the like)?

Finally, and most importantly, this kind of action is ineffective. As Peter Suber predicted in a trenchant post that we can now see as prescient, it merely has the effect of tying the legitimate, sensible, economically rational, and academically preferable approach of open access to memes of copyright violation, illegality, and naiveté. There are already sufficient attempts to inappropriately perform this kind of tying; we needn’t provide further ammunition. Unfortunate but completely predictable statements like “It is disappointing to see advocates of OA treat this person as some kind of hero.” tar those who pursue open access with the immorality and illegality that self-proclaimed guerrillas exhibit. In so doing, guerrilla OA is not only ineffective, but counterproductive.

I believe, as I expect Aaron Swartz does, that we need an editorially sound, economically sustainable, and openly accessible scholarly communication system. We certainly do not have that now. But moving to such a system requires thoughtful efforts, not guerilla stunts.