The tragic loss of Aaron Swartz on January 11, 2013 has given rise to a thoughtful swell across the blogosphere and news media on information rights as well as crime and punishment. His life has been rightly celebrated for his contributions to a more open and free exchange of knowledge, just as the federal prosecutors have been excoriated for the mishandling of the alleged charges against Aaron of illegally downloading over four million scholarly and previously published articles from JSTOR. In the aftermath of this tragedy, what comes to mind, for me, at least, is how the law contributes to the entanglement between scholarship and commerce. Where education and business, broadly speaking, have long played relatively well together, not only in textbook publishing and desk manufacturing, but in tuition charges things have long been askew between the forces of scholarship and commerce, and the law has not helped.
Consider Canadian copyright law. It recognizes the rights of both learning and commerce as distinct, while placing them in a check and counter-check position. “Fair Dealing” in Canada’s Copyright Act (comparable in the U.S. to “Fair Use”), provides its own court of misapprehension between the two. That is, the public value of learning is recognized and protected, by enabling an exception to copyright’s exclusive monopoly when it comes to “the purpose of research, private study, education” (as well as parody or satire, criticism or review, and news reporting). Hence, the check that learning places on commerce is as crucial to the law’s intent of providing an incentive “to promote the Progress of Science and useful Arts” (to draw on the far-more-succinct framing of intellectual property principle in the U.S. Constitution).
Commerce’s counter-check comes with Fair Dealing’s recognition that such counter checks or exceptions hold if such use “does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it” 29.21(d). If you profit from the sale of scholarly work, then anyone engaged in research, private study, or education is always going to be a potential market for your wares. The law does not clarify the relation but codifies the conflict, giving the upper hand to commerce.
The issue seldom surfaced in print, except in egregious photocopying cases that were clearly commerce v. commerce. More typically, university libraries managed commercial demands, without troubling researchers with the details. The digital era has changed all of that. It has placed the research tantalizingly close, a few clicks away on everyone’s screen, while making the scale of pricing and the threat of legal action all too apparent. It appears, in a strange reversal, that commerce has been granted the right to arbitrarily tax (over and above any costs for services) an otherwise public enterprise dedicated to circulating and building knowledge for the public good.
This brings me to U.S. Representative Zoe Lofgren’s proposal for an “Aaron’s Law” that would decriminalize breaches in the terms of service within the Computer Fraud and Abuse Act (which is what Aaron is alleged to have done in downloading too many JSTOR articles that had, one should note, already been published and purchased when they originally circulated in print, before being added to this digital archive named for journal storage).
Rep. Lofgren’s initiative is a focused legal corrective. It raises the question, however, of a far more radical righting of the law. That is, the ultimate version of Aaron’s Law would ensure that publishing scholarly work does not result in exclusive ownership of it for commercial purposes. Publishers would be able to charge for their services in managing peer review and publishing scholarly articles, leading to a free market and fair prices for such services (rather than the huge discrepancies in journal pricing that currently exist with monopoly rights). And such publishing services can be paid for out of funds now dedicated to subscription fees.
This is only to say that the law would do well to end this conflict between research and commerce. It needs to follow Aaron in his efforts to clarify, expose, and honor what intellectual property belongs to whom.