DOJ Decided To Ratchet Up Case Against Aaron Swartz Because He Spoke Out Publicly About Being Innocent

from the vindictive-doj dept

Mon, Aug 12th 2013 8:49am — Mike Masnick

A few weeks ago, we wrote about the MIT report concerning the case against Aaron Swartz. A number of people have picked up on some really questionable things in the report. One incredible claim made in it was that Assistant U.S. Attorney Stephen Heymann, who was running the prosecution against Swartz, apparently admitted that he really only ramped up his efforts against Swartz to punish Swartz and the organization he founded, Demand Progress, for having the audacity to discuss the case publicly and explain why Swartz believed he didn't do anything wrong. Here's the passage from the report:

The prosecutor said that, pre-indictment, he had wanted to approach the case on a human level, not punitively. To this extent he made an extremely reasonable proposal, and was "dumb-founded" by Swartz's response.

The prosecutor said that the straw that broke the camel's back was that when he indicted the case, and allowed Swartz to come to the courthouse as opposed to being arrested, Swartz used the time to post a "wild Internet campaign" in an effort to drum up support. This was a "foolish" move that moved the case "from a human one-on-one level to an institutional level." The lead prosecutor said that on the institutional level cases are harder to manage both internally and externally

MIT used this to explain why it thought that any public statements it might make in support of Swartz would make the case worse for him, because Heymann, in his petty vindictive mind, might view it as a further "wild" public campaign by Swartz. Leaving aside that this makes absolutely no sense at all, the actions of Heymann are particularly despicable here, suggesting that merely professing your innocence to crimes that you believe you are innocent of, should lead to much greater prosecution.

This passage has now caught the attention of Rep. Darrell Issa, and he is asking Attorney General Eric Holder about whether or not the DOJ directly comes down hard on those who exercise their First Amendment rights in the face of questionable prosecutions:

"The implication that the Department ratcheted up the prosecution by moving the case to 'an institutional level' after it discovered the petition by Demand Progress suggests that the Department acted in a retaliatory manner and that it bases its charging decisions on externalities such as an Internet campaign," Issa, who chairs the House Oversight Committee, wrote in his letter to Holder.

"The suggestions that prosecutors did in fact seek to make an example out of Aaron Swartz because Demand Progress exercised its First Amendment rights in publicly supporting him raises new questions about the Department's handling of the case," Issa wrote.

A separate point that comes out in the report that is equally as absurd was that Heymann believed that the case required some jail time as punishment because it "involves the unauthorized downloading of intellectual property that cost millions of dollars to create." This is ridiculous on so many levels. First of all, MIT made those works freely available to anyone on campus, so the argument that it was "unauthorized" remains very questionable. Second, the "cost millions of dollars to create" argument is simply laughable. Nearly all of that was publicly funded by taxpayer money, which is supposed to lead to the enrichment of public learning and knowledge -- the exact thing that Swartz appeared to be focused on. This ridiculous belief that he needed to be put in prison because of the monetary cost of creating these educational works is astounding. And sad, given the eventual outcome.

It's no secret that the DOJ often seems to think that "intellectual property" laws are designed to protect the moneyed interests of copyright holders, but that's not what the Constitution or the law says. At the very least, the people hired as US Attorney's to represent the US government should know better than to ratchet up prosecution for people who are expressing their First Amendment rights and doing things that directly align with the Constitutional reasons for copyright law.

Assistant US Attorney Stephen Heymann is a disgrace to the Constitution he's supposed to be defending.

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Filed Under: aaron swartz, darrell issa, free speech, innocence, mit, prosecution, stephen heymann

115 Comments

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rw (profile), 12 Aug 2013 @ 8:12am

"... but that's not what the Constitution or the law says."

Doesn't matter. They're using a secret interpretation, upheld by a secret court.
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Anonymous Coward, 12 Aug 2013 @ 8:58am

Re:
That can only be found by following the secret guide in a secret book though a secret paper made in a secret passage from a secret time.

It's absurd!
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Lifebound, 12 Aug 2013 @ 8:59am

Welcome to the Police State of America, where secrets make you a suspect; where suspects are guilty until proven innocent; where innocence is illegal; and where illegal acts are fine if they're done in secret.

Ponder that cicular logic for a moment.
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Anonymous Coward, 12 Aug 2013 @ 9:04am

A separate point that comes out in the report that is equally as absurd was that Heymann believed that the case required some jail time as punishment because it "involves the unauthorized downloading of intellectual property that cost millions of dollars to create." This is ridiculous on so many levels. First of all, MIT made those works freely available to anyone on campus, so the argument that it was "unauthorized" remains very questionable. Second, the "cost millions of dollars to create" argument is simply laughable. Nearly all of that was publicly funded by taxpayer money, which is supposed to lead to the enrichment of public learning and knowledge -- the exact thing that Swartz appeared to be focused on. This ridiculous belief that he needed to be put in prison because of the monetary cost of creating these educational works is astounding. And sad, given the eventual outcome.

Wow, Mike. You live in your little dream world. It is a fact that JSTOR spends millions of dollars each year scanning journal articles to include in its database. I have in the past posted links to JSTOR's tax returns that prove this.

It's because of all the time and money JSTOR puts into creating and maintaining its database that schools think it's worth tens of thousands of dollars a year to get access. Can you not even admit this fact? (I know you won't address this point because you are incapable of discussing the Swartz situation on the merits in an honest fashion. How sad.)

And are you ever going to admit that you're routing comments from my IP address to the spam filter, or are you going to continue being a liar about that too?

Get down off your soap box, grow a pair, and actually have an honest discussion about this for the first time in your life. Thanks!
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Richard (profile), 12 Aug 2013 @ 9:06am

Re: Re:
Life imitates fiction...

"It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard'"
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Richard (profile), 12 Aug 2013 @ 9:08am

Re:
It is a fact that JSTOR spends millions of dollars each year scanning journal articles to include in its database. I have in the past posted links to JSTOR's tax returns that prove this.

So what?

The purpose of that money is precisely to make available the knowledge. Locking it up defeats the purpose of the spending.
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Richard (profile), 12 Aug 2013 @ 9:12am

Re:
Further to my previous comment

"Then, JSTOR merged with Ithaka, becoming part of that organization.[9] Ithaka is a non-profit organization founded in 2003 "dedicated to helping the academic community take full advantage of rapidly advancing information and networking technologies."

How can you not see that what Aaron Swartz did was in furtherance of those aims?>
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Anonymous Coward, 12 Aug 2013 @ 9:12am

Re:
Whatever you say, Barnyard Noise Man.
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S. T. Stone, 12 Aug 2013 @ 9:13am

Re:
I wish I could vote this as "disheartening", but an Insightful vote will have to do.
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AC Unknown (profile), 12 Aug 2013 @ 9:14am

Re:
RE: spam filter.

You spammed in the past, therefore your comments get held in moderation. Even better, the process is automated. There is no need for Mike to get his hands dirty by inputting your IP address. YOU BROUGHT IT UPON YOURSELF BY CONSTANTLY SPAMMING.

So, get off your high horse and try to address others without attacking them, kay?
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Richard (profile), 12 Aug 2013 @ 9:15am

Re:
And are you ever going to admit that you're routing comments from my IP address to the spam filter

No need to do that - even a simple natural language understanding program can easily detect your comments from their content!
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Stuart Misort, 12 Aug 2013 @ 9:16am

Re:
OHHHHHH BUUURN
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Anonymous Coward, 12 Aug 2013 @ 9:21am

Re:
Here are the Form 990's for Ithaka: http://www.eri-nonprofit-salaries.com/index.cfm?FuseAction=NPO.Form990&EIN=133857105&Year=20 11

For example, in 2010, it paid out $1,268,824 to one subcontractor for scanning, and it paid out $1,027,724 to another for scanning. That's over $2M in 2010 just for scanning.

So it's not at all "ridiculous on so many levels" that JSTOR spends millions to create these valuable documents that schools pay tens of thousands of years to access. These weren't scans paid for by taxpayer money as you erroneously suggest.

Can you address my point? (Sadly, I know you will not, since, for whatever reason, you simply can't be honest about Swartz. Sigh.)
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Anonymous Coward, 12 Aug 2013 @ 9:23am

Re: Re:
I've provided links below that prove that JSTOR spends its own money scanning documents. Care to refute my evidence?
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Trails (profile), 12 Aug 2013 @ 9:23am

Re: Re:
The purpose of that money is precisely to make available the knowledge. Locking it up defeats the purpose of the spending.

This times a million. AC has so many conflations going on (things that are valuable should be restricted to create more value, it being worth something therefore people will pay for it, blah blah blah) my head was spinning. How to peel back the onion of stupid? Whether to start by pointing out that value is derived from free and accessible knowledge, even by AC? To attack the heuristic that because something costs money to create it should require money to access? That MIT should invest taxpayer money in things that benefit, you know, taxpayers?

Your comment, Richard, cuts through all of it. Kudos.
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Gwiz (profile), 12 Aug 2013 @ 9:23am

Re:
It's because of all the time and money JSTOR puts into creating and maintaining its database that schools think it's worth tens of thousands of dollars a year to get access.

That actually proves nothing.

If all of that information was open and available to all, do you really think any schools would still pay for it? They pay because of the unneeded, artificial scarcity that keeps that knowledge locked up in the first place.

I'm pretty sure that there are enough individuals concerned about this issue that if all that those research papers suddenly became available tomorrow, a crowd-sourced database would be up and running within a month's time which would put JSTOR's to shame.
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Anonymous Coward, 12 Aug 2013 @ 9:24am

Re: Re:
How can you not see that what Aaron Swartz did was in furtherance of those aims?

Why would JSTOR invest millions in scanning documents if someone could just come along, download the whole thing, and make it available for free? This isn't hard--unless, that is, you're a Techdirt fanboy.
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Anonymous Coward, 12 Aug 2013 @ 9:26am

Re: Re: Re:
His comment is idiotic. The incentive for JSTOR to scan and make these valuable documents available is that it has certain property rights in them that permit it to sell access. That others value this access is evidenced by the fact that schools spend tens of thousands of dollars for it. JSTOR is promoting learning by creating its very valuable database. This stuff is so easy, it hurts.
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Anonymous Coward, 12 Aug 2013 @ 9:27am

Re: Re:
I'll keep attacking Mike because he deserves it. He can't have an honest conversation about Swartz, and he can't be honest about the fact that he's routing my posts to the spam filter intentionally.
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Anonymous Coward, 12 Aug 2013 @ 9:28am

Re: Re:
That actually proves nothing.

Huh? It proves that Mike is wrong when he says that it's laughable that JSTOR spends millions. I have proved that they do. Why can't Mike honestly address this? Hmm...
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Anonymous Coward, 12 Aug 2013 @ 9:30am

Re: Re:
Wow, you guys are so thoughtful and intelligent. No wonder Mike panders to you all. Who wouldn't want someone as bright as you in their fold?
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Baldaur Regis (profile), 12 Aug 2013 @ 9:30am

Retaliation is related to nature and instinct, not to law. Law, by definition, cannot obey the same rules as nature.
- Albert Camus
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Anonymous Coward, 12 Aug 2013 @ 9:36am

'merely professing your innocence to crimes that you believe you are innocent of'

AND TELLING THE TRUTH!

'should lead to much greater prosecution'

it also seems that Heymann used his position to persecute Swartz, not just prosecute him and his boss did her best to aid him in accomplishing that! when you consider the outcome for those two prosecutors, ie, nothing basically has happened to them, being defended by Holder, who is also as bad those he defends, and been proven to be a liar and avoider of facts and truth when it suits, makes you wonder how they managed to be chosen for the jobs. however, Congress could have and should have been doing their job properly as well. instead, whenever there is a threat to the Constitution, what do the majority of them do? shrug their shoulders, accept another little envelope and ignore the very thing they were elected to protect and preserve, above all other things! what a disgrace!!
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Gwiz (profile), 12 Aug 2013 @ 9:37am

Re: Re: Re:
Huh? It proves that Mike is wrong when he says that it's laughable that JSTOR spends millions.

It is laughable, AJ. They are spending millions to justify locking up knowledge that should be available to everyone anyways.

Isn't a large portion of the research documents in JSTOR's repository already in the public domain? How do you justify keeping those behind a paywall?
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Internet Zen Master (profile), 12 Aug 2013 @ 9:39am

Swartz was ruining Heymann's life plan
Regardless of the fact that Swartz broke the law (even though the law was ludicrous by the standards of most visitors to this site), it still in no way justifies the outrageous accusations Heymann et al. were leveling at the man.

Correct me if I'm wrong, but wasn't Heymann considering running for office after this case, or was that Carmen Ortiz? If anything, it sounds like Heymann got pissed off that Aaron Swartz was ruining Heymann's grand scheme to climb further up the political ladder by protesting his innocence.

It's no secret that the DOJ often seems to think that "intellectual property" laws are designed to protect the moneyed interests of copyright holders,

Indeed. Which is why the knowledge that the NSA has been telling the other agencies to kindly fuck off in their little turf war when asked to provide data that could be used for tracking down copyright infringement is disturbingly comforting. It's kinda sad that the agency whose SOP is violating our privacy as discreetly as possible is the one that actually has its priorities straight. And it sounds like stopping copyright infringement is not one of those priorities.
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Anonymous Coward, 12 Aug 2013 @ 9:41am

I posted three hyperlinks yesterday without issue of the spam filter. I suggest that our troll get on topic and away from rants that have nothing to do with the topic. That's spam so get over it. You're going to be there until you leave or until you change your methods. As so many have stated before you are not guaranteed a soap box on someone else's site. You want that you go make your own site. You wanna call someone else cheapskate but what I see is your cheapness in this.
------------------

I suspect first that Holder will stonewall this one and not answer it. It leads back to the present administrations' hell or high water on punishing leakers. Its the same attitude of "we can't have that" and it has gone beyond any sort of sane methodology into the insane.

Any way the English language can be mauled to say what it doesn't say, any way to twist what is into what is not, any way to hide what is really being done, are all fair and legal.

More every day we see where that has and is going. It makes us the laughing stock of the world when it is exposed and when the Secretary of State shows up complaining of human rights issues with other nations.
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out_of_the_blue, 12 Aug 2013 @ 9:41am

Re: Mike doesn't care about someone else's costs.
The AC wrote: "It is a fact that JSTOR spends millions of dollars each year scanning journal articles to include in its database."

That's the key point to the Swartz story that makes what Swartz did morally void. These are also facts in the case: In order to "liberate" the data that JSTOR worked to put into computer-accessible form and provide means for librarying, Swartz sneaked into a closet, did some fiddling to get on MIT intranet, and then downloaded gigabytes that he was NOT "authorized" to do, thereby in some degree removing JSTOR's due rewards for actual efforts.

Now, as I frequently write, ALL of Mike's propaganda for his "new busines model" notions are actually based on getting valuable products for free, so it's no surprise that he completely -- actively -- disregards the expenses of JSTOR. Setting aside COSTS is what he's consistent at (for at least six years now as my tagline will link to), and ties in with defending his grifter pals (such as Megaupload) getting money off valuable content they don't pay a cent for, diverting income that should go to actual producers.

Ya say ya can't compete with free, Binky? -- It's easy! Just forget about "sunk (or fixed) costs"!!!
http://www.techdirt.com/articles/20070215/002923/saying-you-cant-compete-with-free-is-saying-you-can t-compete-period.shtml
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Anonymous Coward, 12 Aug 2013 @ 9:41am

Re: Re:
All comments from both my home and my phone, which I had used to post on Techdirt for three years without issue, started getting routed to the spam filter within 24 hours of each other. This wasn't some automated thing. It was intentionally done.
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Ninja (profile), 12 Aug 2013 @ 9:42am

Re: Re: Re:
MIT makes all available for free...
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Anonymous Coward, 12 Aug 2013 @ 9:42am

You are not guaranteed a free pulpit to spam. What you are doing is spam and it has been explained over and over to you.

Live with it or leave, I don't care which.
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Ninja (profile), 12 Aug 2013 @ 9:44am

Re: Re: Re: Re:
Makes it even funnier when you see Google doing the same and making the stuff available for free. Notice how he won't mention all of it was available for free with MIT blessings.
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out_of_the_blue, 12 Aug 2013 @ 9:46am

Re: Re: @ Gwiz: "If all of that information was open and available to all,"
IF is a HUGE word. -- It was not available until JSTOR did the work to make it so. So your IF is stupid.
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Anonymous Coward, 12 Aug 2013 @ 9:47am

Sir you're under arrest for --------- ------- and ----- and ------ to a ------ while licking ------- from ------- one cup --------- like a boss.
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Anonymous Coward, 12 Aug 2013 @ 9:48am

Re: Re: Re:
It was done because you devolved into into a chicken-milk-bawking loonie.
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out_of_the_blue, 12 Aug 2013 @ 9:51am

Re: Re: More "IF" from Gwiz:
"I'm pretty sure that there are enough individuals concerned about this issue that if all that those research papers suddenly became available tomorrow, a crowd-sourced database would be up and running within a month's time which would put JSTOR's to shame."

No, you're up against actuality, we don't need an "IF": those papers (the ones Swartz downloaded) ARE available now, and yet no "database" such as you propose is online, is it?

Tell ya what, "Gwiz": put your money where your mouth is, and PAY THE BANDWIDTH for others to enjoy that data.
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Anonymous Coward, 12 Aug 2013 @ 9:51am

Re: Re: Re: Re:
Oh good grief. I can't believe you and Mike are stilling claiming this. Neither MIT nor JSTOR permit scraping of the database, and both went out of their way to revoke Swartz's privileges.
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Anonymous Coward, 12 Aug 2013 @ 9:52am

Re: Re: Re: Re:
And I started making the barnyard sounds to point out that Mike is too chicken to discuss anything on the merits and that he milks everything (like Swartz and NSA) for all its worth.
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Anonymous Coward, 12 Aug 2013 @ 9:53am

Re:
I know that Mike has the right to block me. I just think it's hilarious that he isn't man enough to admit that he's doing it.
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Anonymous Coward, 12 Aug 2013 @ 9:55am

C'mon, Mike. Let's discuss whether JSTOR spends millions of its own money or not. I provided the Form 990 from 2010 proving that they spent over $2M just on scanning alone. Why won't you address that point? It's OK to be honest. I promise you won't die from it.
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Anonymous Coward, 12 Aug 2013 @ 9:57am

Re: Re: Re: Re: Re:
Then perhaps there should have been code in place to prevent this.
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JustMe (profile), 12 Aug 2013 @ 10:00am

Par for the course
Just another event in the line of disgraceful actions by the Federal agencies charged with protecting us. Anyone want to get that nobody gets indicted?

NPR reminded me about another event this morning:

http://www.biography.com/people/viola-gregg-liuzzo-370152
"Not long after her death, however, came a campaign to tarnish her reputation, driven by J. Edgar Hoover, director of the FBI. Assorted false stories were leaked that she was involved with Moton, and that she was a bad wife and mother."
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Anonymous Coward, 12 Aug 2013 @ 10:01am

Re: Re:
If it's a pure non-profit, then perhaps they didn't need to charge tens of thousands of dollars to institutions in order to recoup those costs.

However, thank you for backing up your assertion. That's all we need, really.
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Gwiz (profile), 12 Aug 2013 @ 10:02am

Re: Re: Re: @ Gwiz: "If all of that information was open and available to all,"
It was not available until JSTOR did the work to make it so.

LMAO at you Blue. You now appear to be defending the "grifter".

The papers were the creations of the individual academics who were basically forced to give the publishers the copyrights of their papers in order to become accredited in their respective fields.

JSTOR is the grifter here.
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Anonymous Coward, 12 Aug 2013 @ 10:07am

Re: Re: Re: Re: Re:
Acting like you belong in an insane asylum isn't a good way to look better than Masnick.
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Anonymous Coward, 12 Aug 2013 @ 10:08am

Re: Re: Re: Re: @ Gwiz: "If all of that information was open and available to all,"
I would counter that with the argument that JSTOR isn't a grifter. It obviously provides a valuable service, otherwise academia wouldn't pay for it - they'd work on something else.

Though I won't argue with you over the predatory practices of the journal publishers.
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Gwiz (profile), 12 Aug 2013 @ 10:08am

Re: Re: Re: More "IF" from Gwiz:
No, you're up against actuality, we don't need an "IF": those papers (the ones Swartz downloaded) ARE available now, and yet no "database" such as you propose is online, is it?

Sure, they are available, but with the threat of Stephen Heymann-like attitudes lurking at the DOJ, one would be a fool to publish them at this point.

Tell ya what, "Gwiz": put your money where your mouth is, and PAY THE BANDWIDTH for others to enjoy that data.

I would set it up as distributed system that all users provide bandwidth in exchange for usage.
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Richard (profile), 12 Aug 2013 @ 10:09am

Re: Re: Re:
Why would JSTOR invest millions in scanning documents if someone could just come along, download the whole thing, and make it available for free?

Given sufficent funding JSTOR would have made it available for free.

How come you can't understand any motivation that doen't involve money?
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Dogbreath, 12 Aug 2013 @ 10:09am

Re: Re:
Are you talking about the "Secret Constitution"? I always thought that was unwritten, just like unwritten laws that people get arrested and charged for supposedly violating all the time.

If ignorance of the law is no excuse (even unwritten law), I guess ignorance of the unwritten "Secret Constitution" is also no excuse to the crimes people unknowingly commit.

Just don't do anything like posting that you know about the "Secret Constitution", or reading this message talking about the "Secret Constitution", or having someone reply to your post with the words "Secret Constitution" in them, and you should be OK.
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Gwiz (profile), 12 Aug 2013 @ 10:11am

Re: Re: Re: Re: Re: @ Gwiz: "If all of that information was open and available to all,"
It obviously provides a valuable service, otherwise academia wouldn't pay for it - they'd work on something else.

I not convinced of that, myself.

Is it the "valuable service" that academia is paying for or is it the "valuable content" that isn't available anywhere else because they have it locked up?
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Richard (profile), 12 Aug 2013 @ 10:12am

Re: Re: Re: Re:
The incentive for JSTOR to scan and make these valuable documents available is that it has certain property rights in them that permit it to sell access.

Rubbish.

The incentive was - in their own words

"to help the academic community take full advantage of rapidly advancing information and networking technologies"
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Ninja (profile), 12 Aug 2013 @ 10:14am

Re: Re: Re: Re: Re:
He did not have privileges, the network is open. On purpose according to MIT itself. The worst Swartz did was break some ToS parts but even what could have brought a CIVIL case against him was not pursued by JSTOR itself.

Must be fun to try to mislead and lie to yourself eh?
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Ninja (profile), 12 Aug 2013 @ 10:16am

Re: Re: Re: Re: Re: Re:
Maybe there was a code that blocked his MAC because of the unusual activity. Still, the security (or lack of it) was so lax that he managed to spoof another MAC and get back in. I'd do the same if I faced an open network that booted me out to check if it was an issue with my own machine. I do it routinely when I want to force my ISP to refresh my IP.
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Anonymous Coward, 12 Aug 2013 @ 10:17am

Re: Re: Re:
You are a very sad person. butt-hurt is ok. Trying to vindicate something from the past and purposefully adding ad homs while presenting opposing views is not conductive to anything than a laugh and a half. You really feel that JSTORs economy has any relevance for the subject matter?
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ottermaton (profile), 12 Aug 2013 @ 10:23am

Re: Re:
Caught out by your own words: (emphasis mine)

So it's not at all "ridiculous on so many levels" that JSTOR spends millions to create these valuable documents that schools pay tens of thousands of years to access. These weren't scans paid for by taxpayer money as you erroneously suggest.

Where do you think those schools get their money from? The taxpayers! Duh.
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ottermaton (profile), 12 Aug 2013 @ 10:26am

Re: Re: Re: Re: Re: @ Gwiz: "If all of that information was open and available to all,"
Allow me to finish that sentence for you:

...otherwise academia wouldn't pay for it with taxpayer money
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Anonymous Coward, 12 Aug 2013 @ 10:28am

Re:
They should have got Google to scan it for free. I thought college people were smart?
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Anonymous Coward, 12 Aug 2013 @ 10:33am

Re: Re: Re:
AJ it really doesn't matter what they spend, I could spend a bazillion dollars making a film but it still doesn't entitle me to profit from it.

That aside, the point made in the article was that the case brought against Aaron Shwartz was only brought up because he proclaimed his innocence on the internet.

Otherwise it would have been a slap on the wrist, instead they pursued the poor guy so hard that he decided to commit suicide. You think that's fair, you are a sick fuck!
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Anonymous Coward, 12 Aug 2013 @ 10:38am

Re:
I provided the Form 990 from 2010 proving that they spent over $2M just on scanning alone.

Let's suppose this is true. Then we must ask why JSTOR is so very, very stupid.

To explain: academic research papers are not produced or submitted in hardcopy. They're written in TeX or troff or (fill in the blank) and generally submitted as PDF (sometimes as DJVU, sometimes as Postscript). The usage of all these has shifted over time and no doubt will continue to do so, but what they have in common is that they're all electronic.

Only a moron would reduce them to hardcopy so that they could be scanned back in. Anyone who had the slightest understanding of the process and wished to build an electronic collection of these would skip that farsical exercise and just use the electronic versions.

Let's make a few other observations about this. Two of the most useful indexing aids for papers are keywords and abstracts. Yes, those have to be supplied for every paper in the index except the authors already did that. So nothing for JSTOR to do there except use what was given to them.

Then we get to storage. I happen to have a directory on this laptop with 872 books in it (in PDF and DJVU). It occupies 6.8G. Note: books, not merely papers. Now pick the approximations you like and compute what a 1T drive would hold. Now consider how many it would hold if they were compressed. And note that 4T drives are now commonplace. And note that if you buy them in quantity at an academic discount they're not expensive. And note that if you ask the people very nicely and promise to give them lots of credit on your pet prominent highly-visible project that you can sometimes get them for free.

Yes, yes I know: it has to perform adequately and be backed up and all that. But (a) these are plain files which are almost entirely read-only (b) and are sequential reads, at that and (c) the easiest way to back them up is to rsync them to other similar drives elsewhere (d) which also reduces the throughput requirements by providing redundant sources. If you actually do the back-of-the-envelope math -- and I have -- and you know how to run data centers -- and I have -- you'll quickly discover that what JSTOR is doing can be readily replaced by a dozen universities running low-end servers stuffed full of cheap disks. No RAID, no ZFS, no nuthin': all of that would be overkill.

The point I'm making is that JSTOR's expenses are a direct result of their stupidity and incompetence, NOT of the intrinsic cost of providing this function. So the proper response to "they spent $2M scanning" is not valuation of their effort as something substantial; it's mocking laughter than they were so appallingly stupid.

(Note: even older papers are often available in electronic form. I recently tracked down an author from one written in 1986. It uses troff, eqn, and tbl. Thanks to the GNU project's continued maintenance of a workalike toolset, I was able to format that author's paper beautifully and turn into a PDF which differed only in minor cosmetic ways from the version published 27 years ago. Clearly this is HIGHLY preferable to scanning that old hardcopy, doubly so since the author would have quite happily sent me ANY of his papers from the last 35 years if I asked for them.)
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Anonymous Coward, 12 Aug 2013 @ 10:42am

Re: Re: Re: Re:
It has certain rights yes. Property rights no. Why even throw that in there. It literally doesn't change your argument at all to leave the objectively wrong 'property' out but you just can't help yourself I guess. Putting knowledge behind a paywall doesn't 'promote learning' at all. But you knew all this already and are just being the same obtuse asshole you always are.
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Anonymous Coward, 12 Aug 2013 @ 10:44am

Re: Re: Re: Re: Re:
You didn't address the point made. If a student had done this manually the outcome is the same yet JSTOR still invested. So obviously there's more to it than your simplistic, obtuse 'why would anyone do anything because free' bullshit.
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Anonymous Coward, 12 Aug 2013 @ 10:44am

Re: Re: Re:
So what?
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Gwiz (profile), 12 Aug 2013 @ 10:45am

Re: Re: Mike doesn't care about someone else's costs.
....thereby in some degree removing JSTOR's due rewards for actual efforts.

Wait, wait. Back the bus up here a second.

JSTOR takes other's creations and makes them available and Blue calls it "due rewards for actual efforts".

On the other hand:

Google scans books and makes them available and Blue calls them grifters because they didn't actually do anything.

Google's search engine indexes other's websites and Blue calls it grifting because they didn't do anything.

Careful Blue, your biased double standards are showing.

As for your third paragraph, care to show me how much money JSTOR or the journal publishers have given the actual creators of these research papers? In most cases, the publisher forced the academic to pay to be published AND give up their copyrights just so they could become "accredited" in their field.
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Anonymous Coward, 12 Aug 2013 @ 10:47am

Re: Re: Re:
And you can't be honest about the fact that the furthest thing from your mind is a honest conversation about anything or that a spam filter is exactly where messages from a spammer should end up. Maybe try not posting virtually the exact same off-topic one line post to every article for months in a row if you don't want to get caught by a spam filter?
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Anonymous Coward, 12 Aug 2013 @ 10:54am

Re: Re:
Your point is entirely incidental. It doesn't matter that JSTOR spends millions to scan documents. It never has and the point being made is explicitly that saying it matters is ridiculous on so many levels.
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Anonymous Coward, 12 Aug 2013 @ 10:55am

Re:
"Please submit a digital copy of your article for archiving."

Look at me saving millions.

Oh, they want an excuse to charge ridiculous fees. That is why they have these subcontractors in the first place.
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Anonymous Coward, 12 Aug 2013 @ 11:02am

It's very similar for people in prison
Unfortunately, this same kind of logic is also used with people in prisons.

If you keep appealing your convictions and saying you didn't do whatever crime you were convicted of they treat you MUCH more harshly then someone who doesn't appeal and freely confesses to doing the crime.

There was a case that highlighted this a decade ago, when one man became the first person to ever be freed from DNA evidence, and then later convicted of the exact same charges (different victims).

When he was in jail for the rape he didn't commit the prison guards all treated him harshly, and constantly called him a rapist and humiliated him in front of the other prisoners. As studies have shown before, treat someone like a genius, and they become smarter, treat someone like a moron, and they become stupider. Treat someone like a rapist constantly, and they become a rapist. That's what happened to the guy after DNA evidence freed him, he became a real rapist.
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Anonymous Coward, 12 Aug 2013 @ 11:04am

Ratchet up! Here's an example at the local level. I have 13 grams of marijuana and two plastic baggies. Instead of an infraction notice I get busted for possession with intent to distribute.

We have to many laws, and rules and regulations with the force of law.
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Rikuo (profile), 12 Aug 2013 @ 11:04am

Re: Re: Re:
Aaaand of course the fact that you've just admitted your comments are nothing more than attacks on the site's operator, rather than an actual discussion about something important, flies over your head. No wonder your posts go to the spam folder: the filtering software is learning to recognise posts from you as being meaningless to the discussion and whatever it doesn't catch, the Techdirt community does.
I've noticed a handful of comments from you over the past few weeks that were actually semi-good comments, that discussed a point relevant to the article, but would not have gotten reported if not for you slipping in an attack or an accusation of censorship at the last line. Howabout in the future, you leave that out? You say your piece, but don't mention censorship, make farmyard animal noises, or make an ad hom comment about Mike or any of the Techdirt staff. Can you honestly try and control yourself for once?
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Rikuo (profile), 12 Aug 2013 @ 11:12am

Re: Re: Mike doesn't care about someone else's costs.
"getting money off valuable content they don't pay a cent for, diverting income that should go to actual producers."

Isn't that exactly what JSTOR did? The academics who write the papers that went up on the JSTOR service had to pay to be published and give up their copyrights. JSTOR then turned around and charged people to access the very same content. So tell me...when are you going to call out JSTOR for not paying a cent for the valuable content, for diverting income away from the producers of said content?
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Rikuo (profile), 12 Aug 2013 @ 11:13am

Re: Re: Re:
Says the guy who's tried to have hundreds of comments with just barnyard animal noises...
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Rikuo (profile), 12 Aug 2013 @ 11:14am

Re: Re:
So then shut the fuck up about it. Whether or not he's "man enough" in your book is meaningless.
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cpt kangarooski, 12 Aug 2013 @ 12:37pm

Re:
It is a fact that JSTOR spends millions of dollars each year scanning journal articles to include in its database. ... It's because of all the time and money JSTOR puts into creating and maintaining its database

So what? You quoted a section concerning "intellectual property that cost millions of dollars to create." JSTOR didn't create a damn thing. They're engaged in mere sweat of the brow work, which as Feist v. Rural established, isn't grounds for a copyright in the US.

They might as well have been scanning in pages filled with randomly generated numbers, and that's how you ought to think of it; the 'harm' done by the access would be the same, and you wouldn't be mislead by thinking of JSTOR as a trove of their own knowledge and discoveries.
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Jasmine Charter, 12 Aug 2013 @ 1:01pm

Transcript...
So our court cases go something like this?

State attorney: We charge the defendant with burglarly.
Judge: Defendant, how do you plead?
Defendant: I plead innocent.
State attorney: Your honor, we'd like to seek the maximum penalty and also add the charge of resisting prosecution.
Judge: Um... ok. Defendant?
Defendant: Still innocent your honor.
State attorney: Your honor, we'd like to also add the charge of ... um... insistence of innocence and disrespecting a state attorney?
Judge: Are you sure that's a real crime?
State attorney: Oh yes. Definitely. And we'd like to seek the death penalty.
Judge: Er... Defendant?
Defendant (slitting wrists): Innocent....
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Anonymous Coward, 12 Aug 2013 @ 1:14pm

Re: Re: Re: Re:
Admitting you are a sick fuck and agreeing with my points.

Excellent, now that you admit you are wrong could you please grow up a few years and stop repeatedly coming back and acting the petulant child.
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Anonymous Coward, 12 Aug 2013 @ 1:17pm

Re: Re: Re:
Does that retort even make sense? Did you break AJ again?
I've just read it a few times and I'm not sure what it means?
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Anonymous Coward, 12 Aug 2013 @ 1:19pm

Re: Re:
So what? You quoted a section concerning "intellectual property that cost millions of dollars to create." JSTOR didn't create a damn thing. They're engaged in mere sweat of the brow work, which as Feist v. Rural established, isn't grounds for a copyright in the US.

Why are you bringing copyright into it? It's about misappropriation and violating the CFAA. If JSTOR spends millions of dollars scanning public domain works, those particular copies are their property, and they can exclude whomever they want from accessing it. JSTOR sells access to those scanned documents because that access is valuable and people pay a lot of money for it. Taking that value and not paying for it is misappropriation, and doing so by fraud makes it a CFAA violation.

They might as well have been scanning in pages filled with randomly generated numbers, and that's how you ought to think of it; the 'harm' done by the access would be the same, and you wouldn't be mislead by thinking of JSTOR as a trove of their own knowledge and discoveries.

Nope, the documents they scan are quite valuable, which is why people pay a lot of many to access those scans. The harm done is that JSTOR would have no incentive to scan these documents if idiots like Swartz could just download the whole database and give it away for free. It's easy for Swartz to do that since he didn't pay any of the cost to scan the documents.
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Anonymous Coward, 12 Aug 2013 @ 1:20pm

Re: Re: Re:
Where do you think those schools get their money from? The taxpayers! Duh.

Huh? Students pay fees to their universities to access JSTOR.
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Anonymous Coward, 12 Aug 2013 @ 1:20pm

Re: Re:
For example, in 2010, it paid out $1,268,824 to one subcontractor for scanning, and it paid out $1,027,724 to another for scanning. That's over $2M in 2010 just for scanning.

So it's not at all "ridiculous on so many levels" that JSTOR spends millions to create these valuable documents that schools pay tens of thousands of years to access. These weren't scans paid for by taxpayer money as you erroneously suggest.

Millions spent scanning and uploading is not millions spent *creating*. Remember, we don't have a "sweat of the brow" system here, so the amount of work spent making the content digital does not play into the calculation of whether or not this involves violating someone's intellectual property.

Time to return your law degree from whatever podunk school gave it to you.

Furthermore, you ignore the fact that JSTOR went out of its way to say publicly and to the feds that they DID NOT WANT TO PROSECUTE Swartz. Kinda takes the entire weight out of your ridiculous argument. If it was really so damaging for JSTOR, why were they against the lawsuit?
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Anonymous Coward, 12 Aug 2013 @ 1:21pm

Re: Re:
They should have got Google to scan it for free. I thought college people were smart?

JSTOR pays millions of dollars in licensing fees to be able to offer copyrighted works. I'm sure Google wouldn't want to do the same.
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Anonymous Coward, 12 Aug 2013 @ 1:22pm

Re: Re: Re: Re:
AJ it really doesn't matter what they spend, I could spend a bazillion dollars making a film but it still doesn't entitle me to profit from it.

If you spend a bazillion dollars making a film, then you are entitled to attempt to make a profit from it. Others are not, since they didn't spend anything making your film. This isn't hard.
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Anonymous Coward, 12 Aug 2013 @ 1:24pm

Re: Re:
I assume the scanning is of older documents, but I really don't know. JSTOR also spends millions in licensing fees. You may think it's stupid, but every major university pays JSTOR for access.
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Anonymous Coward, 12 Aug 2013 @ 1:25pm

Re: Re: Re: Re: Re:
It has certain rights yes. Property rights no. Why even throw that in there. It literally doesn't change your argument at all to leave the objectively wrong 'property' out but you just can't help yourself I guess. Putting knowledge behind a paywall doesn't 'promote learning' at all. But you knew all this already and are just being the same obtuse asshole you always are.

Of course it promotes learning. JSTOR invests millions of dollars each year licensing content, scanning, cross-referencing, etc. It then charges for access to this content, which schools willingly pay. The money that it charges recoups the investment they put in. This isn't hard.
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Anonymous Coward, 12 Aug 2013 @ 1:26pm

Re: Re: Re: Re:
And you can't be honest about the fact that the furthest thing from your mind is a honest conversation about anything or that a spam filter is exactly where messages from a spammer should end up. Maybe try not posting virtually the exact same off-topic one line post to every article for months in a row if you don't want to get caught by a spam filter?

I'm here proving that JSTOR has real costs. Mike is pretending like they don't. The only one running away is Chicken Mike.
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Anonymous Coward, 12 Aug 2013 @ 1:28pm

Re: Re: Re:
Your point is entirely incidental. It doesn't matter that JSTOR spends millions to scan documents. It never has and the point being made is explicitly that saying it matters is ridiculous on so many levels.

Of course it matters. JSTOR is willing to spend millions licensing and creating its database because it is able to recoup those costs from its paying subscribers. Their costs aren't incidental. They are primary.
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Anonymous Coward, 12 Aug 2013 @ 1:30pm

Re: Re: Re:
Millions spent scanning and uploading is not millions spent *creating*. Remember, we don't have a "sweat of the brow" system here, so the amount of work spent making the content digital does not play into the calculation of whether or not this involves violating someone's intellectual property.

It's millions spent creating their particular copies that schools pay a lot of money to access. This sweat of the brow gives them a property interest. You're confusing copyright with property generally. The particular copies they make belong to them.
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Anonymous Coward, 12 Aug 2013 @ 1:31pm

Poor Chicken Mike. Can't have an honest discussion about Swartz. Amazing. Sad, yet amazing. How do you walk around like that? By the way, I'm glad you removed that phrase from your spam filter earlier. You know I was about to rub it in. Good call, dude, 'cause that was just sad.
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ottermaton (profile), 12 Aug 2013 @ 1:33pm

Re: Re: Re: Re:
Huh?

You should have just stopped right there, because clearly you don't know what you're talking about.

Students pay fees to their universities to access JSTOR.

So? Students also pay "lab fees" among a host of other "surcharges" for a variety of things. That does not mean that they're not funded by the taxpayers
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Anonymous Coward, 12 Aug 2013 @ 1:44pm

Re: It's very similar for people in prison
Well of course you didn't think private prisons are about reducing recidivism do you? Otherwise how would those scumbags get money?

Reminds me of the one despicable case in Pennslyvania of "Kids for Cash". Two utter wastes of oxygen judges, Mark Ciavarella and Michael Conahan taking money from a sorry excuse for a human being and real estate developer Robert K. Mericle for putting kids in his private juvie. For bullshit non-crimes like making an obvious joke page mocking a principal on Facebook.

Worse still the human walking pile of vomit, Civarella complained about "disrepect" in his sentencing and cruel and unusual punishment for his all things considered merciful sentence of twenty eight years when they had to throw out thousands of convictions! He should be spending at very least 4000 years in jail while flayed alive and kept in a vat of brine.

There aren't enough insults in the world to describe these three.
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Terry A. Davis, 12 Aug 2013 @ 2:11pm

God
God will kick your ass. God says...
herefore, being misled by this faulty
transcription, very naturally conclude that the middle price, or six
shillings the quarter, equal to about eighteen shillings of our present
money, was the ordinary or average price of wheat at that time.

In the statute of Tumbrel and Pillory, enacted nearly about the same
time, the price of ale is regulated according to every sixpence rise in
the price of barley, from two shillings, to four shillings the quarter.
That four shillings, however, was not consider
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Gwiz (profile), 12 Aug 2013 @ 2:29pm

Re: Re: Re:
The harm done is that JSTOR would have no incentive to scan these documents if idiots like Swartz could just download the whole database and give it away for free.

Well, that's not necessarily true. Think bottled water. But, that's a discussion for another time.

I have a semi-legal question for you AJ. If I scan a public domain document, do I then hold the copyrights for the scanned version or is it still in the public domain and can be legally copied?

In case like that, no additional "property" rights are being assigned just because it's been scanned, right?
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Anonymous Coward, 12 Aug 2013 @ 3:07pm

Re:
You are, without a doubt, the biggest douche-bag, one trick pony, trolling motherfucker, I have ever come across.
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Anonymous Coward, 12 Aug 2013 @ 3:09pm

Re: Re: Re:
...and just what the fuck are you? mentally challenged troll is mentally challenged...
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Anonymous Coward, 12 Aug 2013 @ 3:22pm

Re: Re:
What does that make you? A snot nosed little girl trying to cry to mommy, but guess what, mommy don't give a shit. she's happy you're blocked. Go AWAY, allah's tits, why do you insist on being somewhere you are obviously not wanted?
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Anonymous Coward, 12 Aug 2013 @ 3:24pm

Re:
He did you snot nosed wheeze they are doing something to make money off the backs of the tax payers. fuck em.
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Anonymous Coward, 12 Aug 2013 @ 3:37pm

National Intellectual Property Rights Coordination Center
Why would you expect anything but that mentality from them: http://www.iprcenter.gov/
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John Fenderson (profile), 12 Aug 2013 @ 4:08pm

Re: Re: Re: Re: Re: Re:
And this promotes learning how?
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cpt kangarooski, 12 Aug 2013 @ 4:42pm

Re: Re: Re:
It's about misappropriation

Misappropriation of what, exactly?

If JSTOR spends millions of dollars scanning public domain works, those particular copies are their property, and they can exclude whomever they want from accessing it.

Yes they can. But it sounds as though they gave MIT blanket permission to download copies, and MIT passed that on. If they had wanted to exclude Swartz, they probably should have actually excluded him.

Taking that value and not paying for it is misappropriation

Competition is not misappropriation; they don't have a monopoly.

Nope, the documents they scan are quite valuable

My point was that that value isn't attributable to JSTOR, which adds little value by itself. I admit it adds some value, but the inherent value of the documents far overshadows the mere scanning, and care should be taken to not accidentally attribute more value to JSTOR than they provide.

The harm done is that JSTOR would have no incentive to scan these documents if idiots like Swartz could just download the whole database and give it away for free.

Which means that this is entirely a CFAA matter; JSTOR has no protection other than conditional access, and it is disputed as to whether or not they really did put conditions on it that Swartz violated.
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Anonymous Coward, 12 Aug 2013 @ 5:05pm

Re: Re: Re:
So what you are saying is that you are spoofing your MAC address so that you can gain unauthorised access to this site after being added to the SPAM filter.

You would not know what an honest conversation was if it bit you. I guess this is why you are a lawyer in training.

Too dishonest for anything else.
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Anonymous Coward, 12 Aug 2013 @ 6:21pm

Re: Re: Re:
No they don't. They make the academics pay to have their Public Domain works added to the Journal if they want to become accredited.

You really should learn how to lie better, or at least on a site where your lies will not be picked up.
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Anonymous Coward, 12 Aug 2013 @ 6:21pm

Re: Re: Re:
That lots of people engage in doing something stupid is not justification for its stupidity.
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Obama ignores petitions, 12 Aug 2013 @ 7:31pm

Fire Heymann & Ortiz
Obama is STILL ignoring the WhiteHouse.gov petitions to fire Heymann and Ortiz, both of which passed the required number of signatures months ago (February 11th)...

https://petitions.whitehouse.gov/petition/fire-assistant-us-attorney-steve-heymann/RJKSY 2nb

https://petitions.whitehouse.gov/petition/remove-united-states-district-attorney-carmen-ortiz -office-overreach-case-aaron-swartz/RQNrG1Ck
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Anonymous Coward, 12 Aug 2013 @ 7:43pm

Re: Re: Re: Re:
They're primary to JSTOR maybe but not the subject at hand. Are you sure you know what this article is even about?
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Anonymous Coward, 12 Aug 2013 @ 7:47pm

Re: Re: Re: Re:
A property interest in the particular copies they own but no others and, of course, by this logic Swartz is also entitled to a sweat of the brow property interest in the copies he made.
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Anonymous Coward, 12 Aug 2013 @ 7:50pm

Re: Re: Re: Re:
That's not AJ.
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horse with no name, 12 Aug 2013 @ 9:28pm

My 2 cents
I generally don't post here anymore, because Techdirt censors my posts. Yes, you don't believe it, you call it a "spam filter" or "clicking report" but really, any time ALL of your posts go to moderation for days before appearing, it seems like censorship and not actually trying to control anything EXCEPT my speech. However, that is not the point here.

Mike, honestly, this stuff is making you look like a crank and an idiot. Criminal prosecutions are not laughing matter, and Aaron basically broke a gentleman's agreement to come in quietly and deal with the issue at hand. He wasn't claiming innocence (because after all, it's pretty clear that trespassing and hooking a computer up to someone's network without permission isn't an innocent act), but rather trying to embarrass the government into dropping his case. He seemed to be thinking that he could troll them in a the same manner that 4chan might, and get a reaction that would resolve the case.

Instead, he discovered that when you break a gentleman's agreement, the other side reacts and applies the full force of the law as is permitted by the actions of the accused.

Remember now, this is VERY important: Aaron was not found guilty because he killed himself rather than face justice. There is no indication that he would have been convicted of anything beyond a simple trespass, as an example. However, because he insisted on being loud and aggressive, the other side did the same thing - which is within the law and within the constitution.

What you (and many others) seem to forget is that what Aaron did was wrong on many levels. For JStor, it may not have specifically stolen anything aside from service, but entering the building and attaching his laptop to the network with full intention to misuse their service is an issue, and one he needed to face up to. He could have done it the easy way (quietly dealing with his wrong doing) but chose not to.

Rather than getting all uppity with the procescution, perhaps you should look at Aaron's own actions with an equally critical eye. You might come off as something less than a one sided hatchet man.

Oh, on a side note: Are you employed by Wyden's office or doing consulting for them? You seem to be giving them very wide access to your blog and audience. Campaigning for Wyden for President 2016, perhaps?
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Anonymous Coward, 12 Aug 2013 @ 9:50pm

Re: Re: Re: Re: Re:
Real costs or not, it is part of a non-profit organization. Non-profits do NOT get to charge for things in order to make a profit, or they are no longer a non-profit. If they are charging for this for anything other than to cover costs, they need to lose the non-profit label and pay taxes. You know, the taxes that paid for all that research?
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techflaws (profile), 12 Aug 2013 @ 10:14pm

Re: Re: Re: Re:
This stuff is so easy, it hurts.

Right, proving you wrong is that easy. So what?
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JMT (profile), 12 Aug 2013 @ 11:30pm

Re: Re: Re: Re: Re:
"I can't believe you and Mike are stilling claiming this. Neither MIT nor JSTOR permit scraping of the database, and both went out of their way to revoke Swartz's privileges."

Are you deliberately trying to conflate two different issues, or did you just lose your train of thought in between the two sentences? Yes, Mike and Ninja are still claiming is was available for free, because it was. Any efforts to prevent scraping had nothing to do with cost of access or lack thereof.
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JMT (profile), 12 Aug 2013 @ 11:42pm

Re: Re: Re: Re: Re:
If you spend money curating taxpayer-funded documents for purely educational purposes, you should not feel you're entitled to make a profit from it. Neither MIT or JSTOR seem to agree with you on this point.
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JMT (profile), 12 Aug 2013 @ 11:47pm

Re: Re: Re: Re: Re:
"I'm here proving that JSTOR has real costs."

Nobody has refuted this, or even claimed otherwise. Well done 'proving' the obvious.

"Mike is pretending like they don't."

Mike has said no such thing. Why must you lie?
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JMT (profile), 12 Aug 2013 @ 11:53pm

Re: Re: Re: Re: Re:
Yeah, coz childish behavior always makes such a strong point...
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PaulT (profile), 13 Aug 2013 @ 12:52am

Re: Re: Re: Re: Re:
Wow, the irony and lack of self-awareness is impressive.
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MikeW_CA, 13 Aug 2013 @ 7:00am

still shame on MIT
There's still plenty of shame to be shared by MIT in the matter. Small in comparison to DOJ's share, of course, but still significant.
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toyotabedzrock (profile), 13 Aug 2013 @ 4:49pm

End Game
The Internet has yet to break the back of the doj but this makes it clear that is must happen to teach them a lesson.
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Anonymous Coward, 14 Aug 2013 @ 12:18am

Re: My 2 cents
No one's going to take you seriously, Prenda fanboy.
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