{"id":1813,"date":"2011-07-24T23:04:20","date_gmt":"2011-07-25T03:04:20","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/sj\/?p=1813"},"modified":"2021-03-08T10:50:14","modified_gmt":"2021-03-08T14:50:14","slug":"aaron-swartz-v-united-states","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/sj\/2011\/07\/24\/aaron-swartz-v-united-states\/","title":{"rendered":"Aaron Swartz vs. United States"},"content":{"rendered":"

(echoes of a broken system)<\/em><\/p>\n

UPDATE<\/strong>: Aaron committed suicide on January 11, 2013.(!) More on his life here<\/a>.<\/p>\n

Aaron Swartz<\/a>\u00a0is a friend and Cambridge-area\u00a0polymath<\/strong> whose projects focus on\u00a0access to knowledge<\/a>, open government, and an informed civil society. \u00a0He has worked as a software architect,\u00a0digital archivist,\u00a0social analyst, Wikipedia analyst<\/a>, and political organizer. \u00a0Last year he co-founded the Progressive Change Campaign Committee<\/a> and the non-profit political advocacy group\u00a0Demand Progress<\/a>.<\/p>\n

He is also currently charged with computer fraud by the US Attorney’s office, in what appears to be the latest example of “a sweeping expansion of federal criminal jurisdiction<\/a>” based on the broad applicability of wire fraud and computer fraud statutes.\u00a0 An overview:<\/p>\n

 <\/p>\n

Background<\/big><\/strong><\/p>\n

Aaron has studied institutional influence and ways to work with large datasets<\/a><\/strong>. \u00a0In 2008, he founded watchdog.net<\/a>, “the good government site with teeth<\/em>“, \u00a0to aggregate and visualize data about politicians – including where their money comes from. \u00a0That year he also worked with Shireen Barday at Stanford Law School to assess “problems with remunerated research<\/strong>” in law review articles (i.e., articles funded by corporations, sometimes to help them in ongoing legal battles), by downloading and analyzing over 400,000 law review articles to determine the source of their funding. \u00a0 The results were published in the Stanford Law Review<\/a>. \u00a0Most recently, he served\u00a0for 10 months as\u00a0a Fellow at Harvard’s\u00a0Safra Center for Ethics<\/a>, in their Lab on Institutional Corruption.<\/p>\n

\"\"<\/a><\/div>\n

He contributed to the field of digital archiving, designing and implementing the Open Library<\/a>, which serves as a global digital resource today, and as a foundation for any digital libraries in the future.\u00a0\u00a0And he\u00a0collected 2 million<\/a>\u00a0 public-domain court decisions from the US PACER system — a system that nominally makes all such decisions available to the public, but in practice keeps them\u00a0hidden behind a paywall<\/a>\u00a0— to add to Carl Malamud’s collection at\u00a0resource.org<\/a>. \u00a0(That work in turn\u00a0gave rise to the crowdsourced\u00a0RECAP project<\/a>.)<\/p>\n

 <\/p>\n

The Case of the Over-Downloader<\/big><\/strong><\/p>\n

Last week, Aaron was charged by a grand jury with\u00a0computer fraud<\/a>\u00a0[1<\/a>], for allegedly downloading millions of academic articles hosted by the journal archive\u00a0JSTOR<\/a>, and\u00a0exceeding authorization on MIT and JSTOR servers to do so.<\/p>\n

JSTOR claims no interest in pursuing a legal case. \u00a0However they are not part of the prosecution, and Aaron\u00a0faces a possible fine\u00a0and up to\u00a035 years<\/strong> in prison,\u00a0with trial set for September. \u00a0You can support his legal efforts<\/a>\u00a0online<\/a>.<\/p>\n

The Association of College and Research Libraries notes that\u00a0both the prosecution and Swartz\u2019s supporters have characterized the trial with “superficial, and deeply incorrect, messages about libraries and licensed content<\/a>“.<\/p>\n

So how did this come to pass, and what does it mean for the Internet?<\/p>\n

Details of the case and public reactions it inspired,\u00a0after the jump<\/a><\/strong>.<\/p>\n

<\/p>\n

 <\/p>\n

\"\"<\/a><\/div>\n

This past winter, JSTOR observed “systematic downloading” of millions of articles from MIT’s campus – in violation of their terms of service<\/strong>. \u00a0According to the indictment<\/a>, this at one point brought down JSTOR computers, and led to MIT’s campus access to the service being twice blocked for a few days. \u00a0In January, MIT changed their access policy<\/a> for using JSTOR as a result. \u00a0According to JSTOR’s public statement<\/a>, once they\u00a0identified Aaron as the source of the downloading and ‘secured the content’, they had “no interest in this becoming an ongoing legal matter.”<\/p>\n

However, the US Attorney’s Office was already looking into the situation. \u00a0An investigation under Attorney for Massachusetts\u00a0Carmen Ortiz<\/a>\u00a0led to the\u00a0indictment<\/a>, on charges of\u00a0wire fraud<\/a>, computer fraud<\/a>, unlawfully obtaining information from a protected computer<\/a>, and\u00a0damaging a protected computer<\/a>.<\/p>\n

Why was the government moved to react so strongly, if there was no civil case?<\/p>\n

Attorney Max Kennerly points out some legal problems in a detailed\u00a0critique<\/strong>,\u00a0“Examining The Outrageous Aaron Swartz Indictment For Computer Fraud<\/a><\/em>“, and notes the great power\u00a0prosecutors\u00a0have over the lives of defendants.<\/p>\n

Attorney Jerry Cohen, a Boston IP lawyer, suggests this aggressive use of criminal charges rather than civil charges is\u00a0part of a trend in government prosecution<\/a>\u00a0of such cases, like taking “a sledgehammer to drive a thumb tack… It\u2019s intended to terrorize the person who\u2019s indicted and others who might be thinking of the same thing.<\/em>”<\/p>\n

And\u00a0Reeves Wiedeman<\/a>, writing for the New Yorker, offers a good\u00a0summary of the case<\/a>\u00a0and suggests this is part of a broader war on “hacking”. \u00a0Paraphrasing for brevity:<\/p>\n

\n

[Swartz’s actions] sure sound suspicious, but what, exactly, was Swartz\u2019s crime? \u00a0Sneaking into a building at M.I.T. might seem like trespassing, but that\u2019s not a federal crime. He\u2019s charged instead with wire and computer fraud\u2014knowingly accessing a computer with the intent to defraud, and gaining some value from it. (A\u00a0JSTOR\u00a0subscription like M.I.T.\u2019s could go for fifty thousand dollars.) Critics compare the act to breaking and entering, while supporters note a better analogy is that\u00a0JSTOR\u00a0gave Swartz the keys to its house, then got upset when he drank all the milk. \u00a0<\/em><\/p>\n

JSTOR, for its part, says the milk was returned\u2014Swartz gave back the downloaded data\u2014and considered its dealings with Swartz complete. (Can one \u201csteal\u201d and then \u201creturn\u201d data, when the original data remain on\u00a0JSTOR\u2019s servers all along?) But that doesn\u2019t appear to satisfy the government, which has been waging something of\u00a0a war against \u201chacking,\u201d broadly defined.
\n<\/em><\/p><\/blockquote>\n<\/div>\n

 <\/p>\n

Public reaction to the case<\/big><\/strong><\/p>\n

Other archives and journals have been quiet about the affair. \u00a0 JSTOR has said no more than necessary in their public statement, and MIT has remained mum. \u00a0And if the prosecution means to take a hard line to send a message, they have not yet clarified what it is.<\/p>\n

Unlike the awkward institutional statements, the public response<\/strong> on\u00a0the Internet<\/a>\u00a0has been thoughtful and at times inspiring. \u00a0A number of academics and writers have covered the case.<\/p>\n

Glyn Moody responded with an essay on\u00a0the art of liberating knowledge<\/a>, and what that should mean to us.<\/p>\n

Some commentators\u00a0point<\/a>\u00a0out<\/a>\u00a0that the sort of data harvesting at issue here is done by many groups that engage in meta-analysis : search engines, other large web properties, academic researchers, and other analysts. Any of these may have ideas to test on metadata that they can most easily get by spidering and scraping the web — sometimes including sites they have to jump through hoops to access. \u00a0But larger organizations have their reputation and legal teams to protect them from challenges.<\/p>\n

 <\/p>\n

Finally, on Thursday,\u00a0Greg Maxwell<\/a>\u00a0published a\u00a0bittorrent archive<\/a>\u00a0of 18,592\u00a0public domain<\/a>\u00a0papers from the\u00a0Philosophical Transaction<\/em>s\u00a0of the Royal Society<\/em><\/a>\u00a0from\u00a01665 to 1922<\/strong>, which he says he\u00a0has had for some time<\/a>. Like many old journals, the Philosophical Transactions<\/em>\u00a0were digitized for their publisher by JSTOR. \u00a0The text of these works is being cleaned up online on<\/a> Wikisource<\/a><\/strong>.<\/p>\n

 <\/p>\n

Enclosing the public domain<\/big><\/strong><\/p>\n

This highlights one of the grayer areas of IP in modern digital publishing — the use of the public domain by groups that could make it easy for others to share and reuse public domain documents, but chose not to. \u00a0In extreme cases, this involves actual enclosure<\/strong>\u00a0— limiting access to the only<\/em> source of such works, or suggesting to users that they do not have the right to reuse them.<\/p>\n

Maxwell introduces his archive with\u00a0an alternately meticulous and scathing\u00a0essay<\/a>\u00a0about why\u00a0scientific knowledge<\/strong>\u00a0should be free, and how we can\u00a0improve inefficient social policies. \u00a0In it he\u00a0notes:<\/p>\n

\n

\"I've had these files for a long time, but I've been afraid that
\nif I\u00a0published them I would be subject to unjust legal harassment
\nby those who\u00a0profit from controlling access to these works.
\nI now feel that I've been making the wrong decision.\"<\/tt><\/p><\/blockquote>\n<\/div>\n

By legal harassment, he is likely referring to the practice of some archive owners to claim a new copyright on the images produced by\u00a0scans<\/strong>\u00a0of public domain materials, even though such scans are\u00a0often<\/a>\u00a0considered<\/a>\u00a0uncopyrightable. \u00a0A classic case of enclosure.<\/p>\n

In the case of the old Royal Society journals,\u00a0canonical hosts such as JSTOR and the\u00a0Royal Society’s archives<\/a>\u00a0only offer them for rent, at heady<\/strong> rates of $5-$20 per article per month. \u00a0However, they are also\u00a0already<\/strong> freely available online<\/a>, if less visibly so, thanks to independent library-scanning efforts (including the Internet Archive, Google Books, and Hathi Trust) and an independent digital curator (the tireless\u00a0John Mark Ockerbloom<\/a>\u00a0at UPenn).<\/p>\n

This illustrates one of the grayer areas of archiving and preservation — how public domain documents are made available to the public. \u00a0Torn between optimizing access and revenue, publishers sometimes feel obliged to put these works behind a paywall. \u00a0This issue affects federal initiatives (PACER) and institutions (the Smithsonian<\/a>), as well as publishers such as the Royal Society whose archives extend back more than a century.<\/p>\n

What do you think?<\/strong> \u00a0Related stories and anecdotes are welcome.<\/p>\n","protected":false},"excerpt":{"rendered":"

(echoes of a broken system) UPDATE: Aaron committed suicide on January 11, 2013.(!) More on his life here. Aaron Swartz\u00a0is a friend and Cambridge-area\u00a0polymath whose projects focus on\u00a0access to knowledge, open government, and an informed civil society. \u00a0He has worked as a software architect,\u00a0digital archivist,\u00a0social analyst, Wikipedia analyst, and political organizer. \u00a0Last year he co-founded […]<\/p>\n","protected":false},"author":1202,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[206,216,211,209,219,215,1,709],"tags":[43417,43435,43433,43422,2125,3060,439,43419,3006,4940,417,43429,94,43425,514,1201,43426,43424,43432,43428,43434,43431,43430],"class_list":["post-1813","post","type-post","status-publish","format-standard","hentry","category-a-la-mod","category-fly-by-wire","category-international","category-popular-demand","category-rogue-content-editor","category-too-weird-for-fiction","category-uncategorized","category-wikipedia","tag-access-to-knowledge","tag-big-data","tag-corel","tag-demand-progress","tag-ethics","tag-hacking","tag-harvard","tag-ip-law","tag-jstor","tag-malamud","tag-massachusetts","tag-maxwell","tag-mit","tag-pacer","tag-prosecution","tag-public-domain","tag-recap","tag-royal-society","tag-smithsonian","tag-swartz","tag-tubes-within-tubes","tag-uncopyrightability","tag-wiedeman"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p7iVvB-tf","jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/sj\/wp-json\/wp\/v2\/posts\/1813","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/sj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/sj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/sj\/wp-json\/wp\/v2\/users\/1202"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/sj\/wp-json\/wp\/v2\/comments?post=1813"}],"version-history":[{"count":49,"href":"https:\/\/archive.blogs.harvard.edu\/sj\/wp-json\/wp\/v2\/posts\/1813\/revisions"}],"predecessor-version":[{"id":4420,"href":"https:\/\/archive.blogs.harvard.edu\/sj\/wp-json\/wp\/v2\/posts\/1813\/revisions\/4420"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/sj\/wp-json\/wp\/v2\/media?parent=1813"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/sj\/wp-json\/wp\/v2\/categories?post=1813"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/sj\/wp-json\/wp\/v2\/tags?post=1813"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}