My Kingdom for a Grown-Up

There are strange developments in Boston. I suppose that’s nothing new, but bear with me. The US Attorney’s office has indicted Aaron Swartz, erstwhile Fellow at Harvard University’s Edmond J. Safra Center for Ethics (could I make this up?), for multiple offenses stemming from his downloading of some 4.8 million academic articles from JSTOR, a non-profit clearinghouse which allows libraries and researchers access to digitized copies of over 1000 academic journals.

I should perhaps mention here that JSTOR, a project of the Ithaka organization, provides a wonderful service to academic libraries—the annual fee, though substantial, is far less than the subscription price to all those journals. Moreover, the scholar himself or herself can access the database directly, saving the time of librarians at both ends of an Inter-Library Loan transaction without costing the scholar anything: filling out a form is filling out a form, and I know from personal experience that there’s actually less busy-work involved in downloading an article from JSTOR than there is in executing an ILL request. Furthermore, the articles appear on the researcher’s computer screen in a matter of seconds, not days. Finally, of course, libraries needn’t worry about finding shelf-space for all those journals or hiring people to put the volumes on those shelves: a savings of both time and money.

Anyway, I found out about this case from a professional colleague: a Dean at a reputable west-coast university, and a man not given to fits of temperament. And yet, he posted a link on his Facebook page to a petition site run by Swartz’s organization, Demand Progress, with the comment “This is what we choose to prosecute? If you are not outraged, you haven't been paying attention.” Demand Progress, whose mission is “to win progressive policy changes for ordinary people through organizing, lobbying, and elections in the United States,” is perhaps the principal opponent of Senator Patrick Leahy’s PROTECT IP Act.

That organization provides a handful of juicy comments about the over-reaching government. Here are a few:

James Jacobs, the Government Documents Librarian at Stanford University: "Aaron's prosecution undermines academic inquiry and democratic principles. It's incredible that the government would try to lock someone up for allegedly looking up articles at a library."

John Schwartz of the New York Times: “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.”

Nancy Scola of The American Prospect: “…it's easy to forget that there's something at all controversial or oppositional about accessing information, or that some people really, really want data to be free -- and others don't. Open data has been mainstreamed. Whatever hacker-culture roots the free information movement might have are subsumed by the idea that simply everyone agrees that data is meant to be free, and the struggle is over the mechanics of freeing it. That's never really been true, as Swartz's case makes plain.”

Then, we can throw in the comments of David Segal, who succeeded Swartz as Executive Director of Demand Progress: “This makes no sense. It’s like trying to put someone in jail for allegedly checking too many books out of the library. It’s even more strange because the alleged victim has settled any claims against Aaron, explained they’ve suffered no loss or damage, and asked the government not to prosecute.”

All told, it’s a pretty scathing indictment of the indictment, right? Well, if I might steal a schtik from Johnny Carson: not so fast, bibliography breath. True, what Swartz did doesn’t match up with any commonly-accepted definition of “hacking.” True, he “stole” only items which, taken individually, he had every right to take. True, the threat of a 35-year prison sentence and a $1 million fine is absurd. (The maximum penalty in Massachusetts for Rape of a Child with Force, for example, is 25 ½ years; for larceny of over $50,000, it’s 90 months, or precisely a quarter of what Mr. Swartz faces, not counting the fine.) True, while Mr. Segal’s claim that JSTOR asked the government not to prosecute may be exaggerated, it wasn’t an outright prevarication. JSTOR’s official statement includes this paragraph:

The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office. It was the government’s decision whether to prosecute, not JSTOR’s. As noted previously, our interest was in securing the content. Once this was achieved, we had no interest in this becoming an ongoing legal matter.

Is the DOJ making waaaayyyy too big a deal out of this? Of course. Is Mr. Swartz a grandstanding prick? Yep.

Lost in the bluster of Swartz’s defenders are the facts. He purposefully created a series of dummy accounts to evade identification, purposefully broke into a computer wiring closet and hid a laptop there to avoid detection at MIT, created such a load on the JSTOR servers that they crashed several times, apparently claimed that he was going to disseminate the articles free, etc. It may be true that JSTOR didn’t push for a criminal indictment, but they are hardly the only injured party. Scholars who couldn’t access the site’s inventory were affected on multiple occasions; those at MIT were inconvenienced longer, while JSTOR and university officials sought to deny access to someone they specifically kicked off the site.

More importantly—to me, at least—are some basics that might not be considered by those who aren’t academics. First, JSTOR provides a very valuable service. They can do so by charging libraries for access and then spending that money on distribution rights to the journals in question. The journals, whether they are sponsored by a university or a professional organization, need subscription revenue, however that is achieved, to survive. Allowing Swartz and his ilk to short-circuit the process may seem like a good idea in the short term, but ultimately it disrupts an efficient and largely just system.

The fact is, most legitimate scholars already have access to JSTOR: my university is hardly research-oriented, but our library has a subscription. An independent scholar can usually get guest passes through a local institution or by way of his/her alma mater. More to the point: what JSTOR charges for is, essentially, convenience. If a journal is in the JSTOR inventory, I can get an article published in it quickly and without charge. If not, I can still get that article without charge via Inter-Library Loan: it just takes longer. Like other scholars, I try to leave myself enough lead time to be able to access articles not housed in my university library or on the JSTOR network this way. But there are times when I discover the existence of an article only a couple of days before I need to finish a final draft of, say, a conference paper.

Most significantly, the whole “information wants to be free” argument needs to be exposed for the claptrap it is. The most egregious articulation of this pseudo-argument is buried at the bottom of a post on the Huffington Post site: After the subhead, “Reddit Cofounder, Progressive Activist Arrested for Some Bullshit,” we get this: “JSTOR's the one that should be in prison, man, for locking up knowledge.” Unfreakingbelievable. JSTOR is in the knowledge dissemination business, as anyone a). with a modicum of understanding of the way scholarship works, or b). who bothers to do a little homework, would know. They have no monopoly: you can get that information through other means. It isn’t JSTOR who is pressing charges. In short, it’s the HuffPo blogger’s indignation, not the arrest of Mr. Swartz, that is founded on copious quantities of bovine excrement.

Let’s review: Swartz is a brat who deserves to be spanked and sent to bed without his dinner. The US Attorney’s office needs more bran in its cumulative diet. Most of the commentators have no idea what they’re talking about. MIT’s security system apparently was slightly less effective than the Maginot Line. Meanwhile, the folks at JSTOR issued what amounts to a “cease and desist” order, got what they wanted, and went back to making scholars’ lives a little easier. It’s nice to know there are still a few grown-ups out there, even if they’re in the minority.