[Marxism] Rogue Downloader's Arrest Could Mark Crossroads for Open-Access Movement

Louis Proyect lnp3 at panix.com
Mon Aug 1 07:10:34 MDT 2011

The Chronicle of Higher Education
Monday, August 1, 2011

Rogue Downloader's Arrest Could Mark Crossroads for Open-Access 

By David Glenn
Cambridge, Mass.

This past April in Switzerland, Lawrence Lessig gave an 
impassioned lecture denouncing publishers' paywalls, which charge 
fees to read scholarly research, thus blocking most people from 

It was a familiar theme for Mr. Lessig, a professor at Harvard Law 
School who is one of the world's most outspoken critics of 
intellectual-property laws. But in this speech he gave special 
attention to JSTOR, a not-for-profit journal archive. He cited a 
tweet from a scholar who called JSTOR "morally offensive" for 
charging $20 for a six-page 1932 article from the California 
Historical Society Quarterly.

The JSTOR archive is not usually cast as a leading villain by 
open-access advocates. But Mr. Lessig surely knew in April 
something that his Swiss audience did not: Aaron Swartz—a friend 
and former Harvard colleague of Mr. Lessig's—was under 
investigation for misappropriating more than 4.8 million scholarly 
papers and other files from JSTOR.

On July 19, exactly three months after Mr. Lessig's speech, 
federal prosecutors unsealed an indictment charging that Mr. 
Swartz had abused computer networks at the Massachusetts Institute 
of Technology and disrupted JSTOR's servers. If convicted on all 
counts, Mr. Swartz faces up to 35 years in prison.

The arrest instantly became a new focal point in the long-running 
debate about how to restructure scholarly publishing. But some 
people in Cambridge are also asking questions about whether 
Harvard, which employed Mr. Swartz, and MIT, where his alleged 
misdeeds took place, should have done more to prevent the episode 
from spiraling into a major federal prosecution.

Mr. Swartz's case has become a cause célèbre among hundreds of 
programmers, scholars, and activists who have worked with him 
during the last decade. (Mr. Swartz came to prominence in 2000, 
when, at the age of 13, he helped write an early version of RSS, a 
hugely popular Web-syndication format that feeds content into 
services like Google Reader.) These activists say the 35-year 
sentence looming over Mr. Swartz is a prime example of the 
irrationality and cruelty of the existing copyright regime. If Mr. 
Swartz abused his guest privileges on MIT's network, they say, the 
matter should have been settled as a civil dispute, not handed 
over to federal law enforcement.

"MIT has a duty to get down on its knees and beg that this 
prosecution be dropped," says Richard M. Stallman, a Boston-based 
programmer and prominent "free culture" advocate who attended 
graduate school at MIT in the 1970s.

But others say Mr. Swartz appears to have acted recklessly in this 
episode, putting his liberty and his promising career at risk 
while achieving nothing on behalf of open access.

"If the indictment is accurate, this behavior seems to have been 
illegal, immoral, and ineffective," says Stuart M. Shieber, the 
director of Harvard's Office of Scholarly Communication. Mr. 
Shieber believes the current structure of scholarly publishing is 
unsustainable and does not serve the public well, but he says he 
cannot imagine how Mr. Swartz's exploit could have helped the 
Caught in a Closet

In Cambridge last week, friends and acquaintances of Mr. Swartz 
said they were horrified by the thought that he might spend three 
decades in prison. But they said they had no clear idea what he 
might have been up to at MIT.

"I knew nothing about this until I read about the indictment," 
says John H. Summers, a historian and former Harvard lecturer who 
was recently named editor of The Baffler, an independent journal 
of cultural criticism. Mr. Swartz volunteered to redesign the 
magazine's Web site and has written an essay on "content farming" 
for the forthcoming issue. The two men had met several times over 
the last three months, but Mr. Summers said Mr. Swartz betrayed no 
sign that he was under the shadow of a federal grand jury. "He has 
a very cool temperament," Mr. Summers says.

But Mr. Swartz had known he was in trouble since January 6, when 
he was arrested after being spotted removing a laptop from a 
wiring closet in the basement of MIT's Building 16, where he had 
allegedly tapped directly into the core of MIT's network in order 
to avoid JSTOR's security measures.

That basement, which lies underneath the university's anthropology 
department, is a chilly, cement service corridor that most MIT 
students probably never see.

What exactly was Mr. Swartz doing here last fall? He and his 
lawyer did not reply to requests for interviews, and no one else 
has come forward with direct knowledge of his project. Likewise, 
officials at MIT declined multiple requests for comment about how 
Mr. Swartz's downloading was detected and how the university 
handled the affair. Most discussions of the case now center on two 
documents: the federal indictment and a police report that was 
published last week by Wired.

The purported facts in those documents have not yet been contested 
in court. But if they are broadly accurate, the story seems to 
have gone like this: Last fall, Mr. Swartz began an appointment as 
a research fellow at Harvard's Edmond J. Safra Center for Ethics, 
which Mr. Lessig directs. (The two first crossed paths in 2002, 
when, at the age of 15, Mr. Swartz was hired as a programmer for 
Creative Commons, a project Mr. Lessig started to simplify copyright.)

Mr. Swartz was brought to the Safra Center to study questions of 
open government, but he spent some of his free time on other 
matters. Beginning in late September, according to the indictment, 
Mr. Swartz used automated software to download huge quantities of 
papers from JSTOR, far exceeding the limits imposed by JSTOR's 
terms of service. Though he had access to JSTOR at his Harvard 
office, Mr. Swartz carried on this activity two miles away at MIT, 
where he had no affiliation. He logged onto MIT's guest network 
under the name "Gary Host," which collapses to "ghost" as a username.

Mr. Swartz's downloading was detected by JSTOR within 48 hours, 
and the service began to block an increasing range of IP addresses 
at MIT. The university then tried to obstruct Mr. Swartz's laptop 
specifically, by barring the Media Access Control address, or MAC 
address, that the network had assigned to his computer. But Mr. 
Swartz managed to evade all those measures. On October 9, when he 
was simultaneously using two computers to download JSTOR material, 
the "pace was so fast that it brought down some of JSTOR's 
computer servers," according to the indictment.

For several days thereafter, JSTOR cut off access to MIT's entire 
network. Heidi McGregor, a spokesperson for Ithaka, the nonprofit 
education-technology foundation that merged with JSTOR in 2009, 
says such events have been extremely rare in JSTOR's history. 
Citing the continuing criminal case, she declined to clarify 
exactly how long MIT was suspended or why JSTOR eventually was 
willing to restore the university's access. She also declined to 
explain whether the server failures on October 9 affected 
international access to JSTOR.

Even after the October disruption to the university, Mr. Swartz 
persisted. At some point in November, the indictment charges, he 
plugged his laptop directly into the basement wiring closet at 
MIT. He allegedly used external hard drives to store his JSTOR 
downloads, periodically visiting the wiring closet to pick up his 

On January 4, MIT police officers were notified that a member of 
the university's technical-security staff had discovered a laptop 
in the wiring closet. That morning, a team including a Secret 
Service agent and police officers from Cambridge and Boston 
visited the site and installed a Webcam. The camera caught Mr. 
Swartz visiting the closet that afternoon, concealing his face 
with a bicycle helmet. Two days later, he was spotted again as he 
removed his laptop from the closet, and this time he was arrested 
as he rode his bicycle across campus. (On top of the federal 
charges that were unsealed on July 19, Mr. Swartz faces a state 
charge of felony breaking and entering. Not long after the January 
arrest, he left his fellowship at the Safra Center.)

According to Ms. McGregor, JSTOR believes it has recovered all of 
the millions of files that Mr. Swartz downloaded. The two parties 
signed a settlement in which Mr. Swartz assured them that he had 
not posted the files online or made copies for anyone else.

She adds that JSTOR never contacted any law-enforcement 
authorities about the matter. The decision to pursue criminal 
charges, she says, was not JSTOR's.
Motivations for 'Hacktivism'

Why did Mr. Swartz go to such lengths?

He has a longstanding interest in making large-scale data sets 
available for public analysis. He has pursued that goal through a 
Web site known as theinfo.org, and in a well-publicized 2008 
project, he downloaded an enormous amount of data from the federal 
courts' PACER system. That episode earned him an FBI file, but he 
was not arrested.

What was his goal at MIT? Had he been planning to use the huge 
cache of JSTOR data to analyze corporations' financial support for 
scholarly research? That seems plausible, as he had helped a 
friend do a similar study of academic legal research in 2008. Had 
he planned to create a public database of information about the 
JSTOR papers, as he and his colleagues at the Open Library project 
have done with books? Or had he actually planned to feed the full 
text of the JSTOR library into file-sharing sites? A 2008 
"Guerilla Open Access" manifesto written by Mr. Swartz proclaimed, 
"We need to take information, wherever it is stored, make our 
copies and share them with the world. ... We need to download 
scientific journals and upload them to file sharing networks."

Mr. Shieber, of Harvard, says the wholesale file-sharing scenario 
seems most plausible to him, assuming that the basic facts in the 
indictment are correct. If Mr. Swartz had wanted to look at 
corporate financial support, Mr. Shieber says, he probably would 
have examined a much smaller range of JSTOR data—say, economics 
papers published since 1975.

Mr. Summers, who has spoken extensively with Mr. Swartz since the 
arrest, says he believes his intention was to analyze the 
structure of academic research, not to commit wholesale copyright 
violations. In any case, Mr. Summers says, it is absurd for the 
U.S. attorney to treat Mr. Swartz's actions as analogous to 
stealing cars. "The idea that we should pay no attention to 
context and motive—that's just a dereliction of intellectual 
duty," Mr. Summers says. (The U.S. attorney's office declined to 

At MIT, meanwhile, faculty members are debating whether the 
university was too quick to bring in federal authorities.

"What Aaron Swartz did was a clear violation of the rules and 
protocols of the library and the community," says Christopher 
Capozzola, an associate professor of history and acting associate 
dean of the school of humanities, arts, and social sciences. "But 
the penalties in this case, and the sources of those penalties, 
are really remarkable. These penalties really go against MIT's 
culture of breaking down barriers."

Mr. Stallman, the programmer and MIT alumnus, says he is mystified 
by the police report's suggestion that Secret Service agents were 
brought in just hours after the laptop was discovered. "At best—if 
they didn't know what the laptop was doing—it was an 
overreaction," he says. "Surely MIT people can examine a laptop 
without police help."

Over in Cambridge at Harvard, Mr. Lessig declined multiple 
requests for an interview.

Ms. McGregor, of JSTOR, said her colleagues were dismayed by his 
April lecture in Switzerland. Mr. Lessig did not give enough 
credit to JSTOR's efforts to provide low-cost access to 
universities in developing countries, she said. And the $20 price 
for the California Historical Society paper, she said, was not 
JSTOR's choice. The approximately 800 publishers that participate 
in the JSTOR system decide individually how much they will charge 
for access for people who are not logging in from institutions 
with JSTOR subscriptions.

One such person is Mr. Summers. He has taught at Harvard and at 
Boston College, but he presently has no academic affiliation with 
either institution. Two of his scholarly papers are available at 
JSTOR; if you're logging in from outside an affiliated university, 
it will cost you $38 to buy them.

"What Aaron's case begs us to remember is that universities are 
supposed to be public, not-for-profit institutions," Mr. Summers 
says. "They owe a standing moral debt to the public."

Michael F. McElroy, Zuma Press, Newscom

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