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