Aaron Swartz and Theft of Scholarship
Aaron Swartz is that rare individual who is prepared to risk imprisonment in order to promote the cause of open access. And we’re not talking about liberating “tunes” or movies or, indeed, anything of much “entertainment value”; Swartz goes for the serious, you might say earnest, stuff. At the moment the young man stands accused of various crimes associated with his downloading of 4.8 million articles from JSTOR. (Many, but by no means all, readers of Slaw will know that JSTOR stands for “Journal Storage” and is a not-for-profit, but paywall-protected, online archive for academic journals.)
There are good accounts of his career and escapades online, so I’ll only hit some of the highlights here. If you’d like a fuller picture, try the New York Times article or the excellent recent piece by Nancy Sims in the College & Research Libraries News.
Of interest to law folk will be the fact that back in 2008 Swartz, then a research fellow at Harvard University’s Safra Center for Ethics, used a program of his to download 20% of the documents made available by PACER (Public Access to Court Electronic Records) — “more than eighteen million pages with an approximate value of $1.5 million,” according to FBI documents — and released them to the public en masse. This brought the project to its knees but resulted in no criminal charges for him.
Click on image to enlarge.
The current spate of downloading, however, has gained him a number of criminal charges of a serious nature, in part because it’s alleged he went into a closet at MIT containing access to the MIT network and hooked up his computer directly. According to the indictment on his arrest warrant (available online along with many other documents relating to the criminal matter), these charges are: wire fraud, computer fraud, theft of information from a computer, recklessly damaging a computer, and aiding and abetting. Click on the image above to see the document and the relevant US Code numbers. It would appear that the trial is about to begin.
A great many issues arise from Swartz’s self-made plight, which is presumably what he intended. For academic institutions such as universities and scholarly databanks, it’s important to consider the implications of their access policies having become the basis for criminal charges. On a broader plane, we need to continue to debate the degree to which it’s appropriate to speak of “theft” of data in such a way that there’s an equivalence, explicit or not, between taking data and taking someone’s car or money, for example. In this respect, you might take a look at “Asked and Answered: Here’s What I Think the Aaron Swartz Case Means,” by Rick Anderson, Associate Dean for Scholarly Resources and Collections at the University of Utah’s Marriott Library (in response to which one commentator believes it is an argument to repeat “stealing is stealing”).
Publishers can bring two kinds of value to a scholar’s work: one is curatorial and editorial, and the other is actually providing access to the work.
On the latter point, where electronic access is concerned, overhead is negligible, and prices should reflect that. There is also an undeniable argument in favour of public access to publicly-funded research data and write-ups.
Regarding curatorial and editorial contributions, any number of innovative structures might provide great improvements over the deeply flawed and inconsistent process of peer review and its associated processes that we currently rely on publishers to facilitate.
If all university research results were available to the public, publishers and others could access the corpus on an equal footing, and do their best to attract paying customers. Those with excellent systems for highlighting the best research would gain ground. I suspect something like this is what Schwartz had in mind, and it is certainly the impulse behind Malamud’s projects for US law materials.