Describing Public Domain Works As 'Pirated' And 'Illegal' Is Bad For Everyone

from the stop-that dept

Yahoo Tech has an interesting column about an "art project" in Germany, where a bunch of folks are printing out 250,000 academic papers from JSTOR, which they're describing as the JSTOR Pirate Headquarters. Of course, as I'm sure you know, JSTOR -- the somewhat controversial organization that hosts thousands of academic articles behind a massively high paywall -- was a central player in the Aaron Swartz saga.

It was JSTOR's collection that Aaron was caught downloading, though it was never entirely clear what he was going to do with it. Soon after Aaron's arrest, a guy by the name of Greg Maxwell got some attention by releasing 33GB of JSTOR scientific papers to the Pirate Bay. While he'd considered doing so before, he had held off out of concern for how JSTOR might react. But the simple fact was that all of the papers he released were public domain papers, meaning that JSTOR would have no right to complain. In fact, a few months later, JSTOR itself agreed to make all its public domain materials free. JSTOR freely admits that Maxwell's decision influenced the move, but that they had been planning to do something like this anyway.

So, back to Germany and the "JSTOR Pirate Headquarters." As the Yahoo story notes, the folks there were inspired by the Swartz story to try to create some sort of civil disobedience act, with the initial plan being to print out the documents Swartz downloaded -- but, of course, that database has long since gone away. Instead, they found Maxwell's torrent, and decided to print that out. The problem is that throughout the story, everyone seems to pretend that this is some sort of illegal act of piracy. Beyond the fact that they call it the JSTOR Pirate Headquarters, the article by Rob Walker opens this way:

For several days now, five printers in Düsseldorf, Germany, have been pumping out illegally-downloaded articles from JSTOR, the digital library of academic journals.

Except they're not illegally downloaded. They're public domain, which makes them perfectly legal to download.

Then Walker claims:

If you’re in the area, you can stop by and browse this stuff – which would cost you something like $353,229 to buy from JSTOR itself.

Except that's not true either, because JSTOR made the same documents free.

And it appears the guy behind the project doesn't realize this either:

The JSTOR Pirate Headquarters, then, exists partly as a tribute to Swartz, and partly as a provocation, explains its overseer, the artist and poet Kenneth Goldsmith. The material being printed consists of “arcane scientific papers that are hundreds of years out of copyright,” he tells me via email. “Yet JSTOR is firewalling & profiting from this stuff, which should be available to everyone at no cost.”

Again, those works have already been freed, legally, both by Maxwell and by JSTOR. So while this protest may have some symbolic value, to claim that these works are locked up and that this is some sort of illegal activity is just wrong. Later in the article, they discuss the possibility that JSTOR might do something:

There has been, to date, no word from JSTOR. And realistically, this mass of paper is not a material threat to its business — even if it does make material an argument about the nature of that business.

“The legal issue is interesting. Is printing material without the intent to distribute it really illegal?” Goldsmith asks. “Is this useless intellectual property really worth going to the mat for?

Except, not only is this not a material threat to its business, it's not a threat to anything. These works are all completely legal, in the public domain and totally freely available from a variety of sources including JSTOR. Here, go ahead and check it out.

That's not to say there aren't other issues with JSTOR. Its regular paywall is ridiculously high, and often stands in the way of sharing important academic knowledge (frequently paid for by the public). And there are plenty of non-public domain works JSTOR should consider freeing up as well -- such as this 80 year old article on why we should do away with copyright and patent laws altogether. It's 21 pages and JSTOR wants $43 for it, which seems rather ironic, since the author himself, Arnold Plant, believes that locking up such works with intellectual property is a mistake.

So, I can recognize the desire to do something that appears to be civil disobedience to stand up against JSTOR. But the JSTOR Pirate Headquarters, unfortunately, only contributes misinformation to the situation, implying that freely available public domain works are somehow illegal or subversive. It appears this is the opposite of the message they want to send, so it's unfortunate that the message that is getting out is that it's illegal to share public domain works. Similarly, shame on Yahoo Tech and its reporter, who should be willing to do the most basic of fact checking to understand the very premise of the article is hogwash. Yahoo Tech is trying to position itself as a tech publication for a more mainstream audience, and if it believes the way to do that is to spread misinformation, that's unfortunate.

Filed Under: aaron swartz, copyright, germany, greg maxwell, public domain
Companies: jstor

Details Show MIT Employees Gleefully Helped With Prosecution And Persecution Of Aaron Swartz

from the sad dept

Last summer, MIT tried (weakly) to defend what it called its "neutral" stance on Aaron Swartz, allowing the case to proceed even though the only party that had a legitimate claim to "harm," JSTOR, had come out almost immediately after Swartz's indictment to say that it did not support the prosecution. Around the same time, we noted that MIT was in the midst of a legal fight to block the release of Swartz's Secret Service file. Some found this effort a bit odd -- but the reasons are now becoming clear. An investigative report by the Boston Globe, scouring 7,000 pages of discovery documents in the case, found that some employees at MIT appeared to gleefully support going after Swartz with all of the powers of the DOJ.

In a handful of e-mails, individual MIT employees involved in the case aired sentiments that were far from neutral. One, for example, gushed to prosecutor Stephen P. Heymann about the quality of the indictment of Swartz.

“Nicely done Steve and kudos! All points . . . are as accurate as I’ve ever seen,” wrote the information technology employee. “(I only say that because every time I’ve ever given an interview, details are always slightly to horribly munged; not that I ever expected any less, it’s just a true relief and very refreshing to see your accuracy and precision).”

Elsewhere, it becomes clear that MIT helped escalate the case when calling in law enforcement. The Globe highlights a note taken by an MIT library staffer who noted that it was "now a federal case" and "All we provide is by choice -- not subpoenaed." Even more damning, a senior MIT network engineer basically seemed to think he was now working for the DOJ:

That cooperation with law enforcement also extended to a senior MIT network engineer who monitored traffic to and from Swartz’s laptop and appeared to be looking to Pickett for instructions. On Jan. 5, having collected 70 gigabytes of network traffic, he e-mailed the agent, “I was just wondering what the next step is.”

The documents also demonstrate that MIT employees "prodded JSTOR to get answers for prosecutors more quickly -- before a subpoena had been issued." That hardly seems "neutral."

The report also notes that MIT -- as admitted by an internal investigation -- "paid little attention to the details of the charge" including the key fact that the CFAA charge depended on this being "unauthorized access." However, since MIT's network was wide open to guests, it was hard to say that it was unauthorized. Yet MIT did little to explain that to prosecutors.

The report also delves into JSTOR's side of things, suggesting that, contrary to its public stance, before Swartz was revealed, it too was pretty angry (often at MIT) and considered calling in law enforcement repeatedly. However, in the end it appears that cooler heads prevailed there, as the organization decided not to pursue those actions. If only the same had happened at MIT.

Filed Under: aaron swartz, doj, mit, prosecution, stephen heymann
Companies: jstor, mit

US Attorneys Reveal Online Bullying To Explain Why People Who Helped Them Prosecute Aaron Swartz Should Remain Anonymous

from the counter-productive dept

We recently wrote about how Aaron Swartz's legal team was arguing with MIT and the DOJ about publicly releasing some of the documents in the case against him. MIT and the DOJ want to keep the names of key people at MIT and JSTOR secret, while Swartz's family says the info should be public. In response, among other things, the US Attorneys' Office has said that, since Swartz's death, they've been bullied and hacked. From the filing:

In my capacity as First Assistant United States Attorney, I have been shown various harassing and potentially threatening email messages directed at United States Attorney Ortiz and the United States Attorney’s Office following Mr. Swartz’s suicide.

Attached at Tab E are copies of the following articles:

a. Swartz case protest at Boston US Attorney’s Home, The Boston Globe, March 12, 2013; and
b. Swartz protesters go to prosecutor’s home, The Boston Globe, March 17, 2013.

In my capacity as First Assistant, I have been shown various harassing and threatening messages directed at AUSA Heymann. One such email I have seen states, among other things:

ROFLMAO just saw you were totally dox’d over the weekend by Anonymous. How does it feel to become an enemy of the state? FYI, you might want to move out of the country and change your name . . .

That same email copies personal information of AUSA Heymann, including his home address and personal telephone number, among other things. AUSA Heymann has also reported to me that his personal information (including his home address, personal telephone number, and the names of family member and friends) were posted online, and that his Facebook page was hacked.

Attached at Tab F is a redacted copy of a postcard that AUSA Heymann has informed me he received at his home.

Attached at Tab G is a copy of a postcard that Professor Philip Heymann has informed me he received.

This is the first postcard they're talking about: The picture in the center is of Philip Heymann, father of Steven Heymann. Steve Heymann led the prosecution of Swartz. His father, Philip is a former deputy attorney general and a professor at Harvard.

Once again, as we've stated numerous times in the past, these kinds of activities, while they may feel like a way to make a statement against those who have done wrong, are incredibly counterproductive and stupid. Rather than making any sort of realistic or helpful point, they just give more ammo to the DOJ to block a full, fair and thorough exploration into what went wrong. Making them into victims is a really pointless move that helps the DOJ continue to cover up the details of what happened by giving them cover.

I recognize that there's tremendous anger towards the US Attorneys' office over this case, and much of that anger is likely justified. But channeling that anger into childish threats doesn't help anyone, least of all Swartz's memory and family. Yes, the prosecution of Swartz was unfair, and I would support a legitimate investigation into what happened and ways to keep the DOJ from such overzealous prosecution in the future (though, I agree with others that this sort of thing is endemic to the DOJ, and wasn't unique to Swartz's situation). But these actions turn the DOJ into victims and give them an excuse to hide behind. These kinds of attacks may make some kids feel better, but they don't help at all.

Filed Under: aaron swartz, anonymous, bullying, carmen ortiz, hacking, steven heymann, us attorneys
Companies: jstor, mit

Concerns Raised About Aaron Swartz's Prosecution And The Wikileaks Connection

from the fishing-expedition dept

Let's state upfront that a lot of what's in this post is conjecture based on a few pieces of information out there. I'm not convinced that it presents enough evidence of an actual connection. However, a bunch of folks have been talking about this (and submitting it here), so we wanted to raise the issue to see what people thought, and if there was any other information that could confirm or deny some of the conjectures in the piece. As far as we can tell, some of the timing is a bit odd, but it could very well be a coincidence. We'd love to have the full story if there was one, but federal prosecutors -- especially those under media scrutiny -- aren't known for suddenly opening up about these sorts of things. Given that, we thought we'd post some of the details of the discussion for the sake of continuing the discussion and seeing if anyone had anything more conclusive, either showing a connection between Aaron Swartz's prosecution and Wikileaks... or debunking it.

We've already discussed how Wikileaks bizarrely outed Aaron Swartz as a possible source, and that's leading to other speculation as well, including a question as to whether or not the grand jury investigation into Swartz was really more about the fishing expedition against Wikileaks, rather than the whole MIT/JSTOR effort. The Emptywheel blog (linked above) notes that Swartz's defense indicated it was aware of a much deeper investigation concerning Swartz that went beyond MIT and JSTOR to Twitter, Google, Amazon, the Internet Archive and possibly more -- and asked the government to turn over such materials:

These paragraphs request information relating to grand jury subpoenas. Paragraph 1 requested that the government provide “[a]ny and all grand jury subpoenas – and any and all information resulting from their service – seeking information from third parties including but not limited to Twitter. MIT, JSTOR, Internet Archive that would constitute a communication from or to Aaron Swartz or any computer associated with him.” Paragraph 4 requested “[a]ny and all SCA applications, orders or subpoenas to MIT, JSTOR, Twitter, Google, Amazon, Internet Archive or any other entity seeking information regarding Aaron Swartz, any account associated with Swartz, or any information regarding communications to and from Swartz and any and all information resulting from their service.” Paragraph 20 requested “[a]ny and all paper, documents, materials, information and data of any kind received by the Government as a result of the service of any grand jury subpoena on any person or entity relating to this investigation.”

Swartz requests this information because some grand jury subpoenas used in this case contained directives to the recipients which Swartz contends were in conflict with Rule 6(e)(2)(A), see United States v. Kramer, 864 F.2d 99, 101 (11th Cir. 1988), and others sought certification of the produced documents so that they could be offered into evidence under Fed. R. Evid. 803(6), 901. Swartz requires the requested materials to determine whether there is a further basis for moving to exclude evidence under the Fourth Amendment (even though the SCA has no independent suppression remedy).

[snip]

Moreover, defendant believes that the items would not have been subpoenaed by the experienced and respected senior prosecutor, nor would evidentiary certifications have been requested, were the subpoenaed items not material to either the prosecution or the defense. Defendant’s viewing of any undisclosed subpoenaed materials would not be burdensome, and disclosure of the subpoenas would not intrude upon the government’s work product privilege, as the subpoenas were served on third parties, thus waiving any confidentiality or privilege protections.

Given all of that, it's leading some to wonder if this was more about the big fishing expedition a grand jury has supposedly been working on for quite some time, trying to sniff out anything that can be used against Wikileaks. There is no confirmed connection to the Wikileaks investigation, but Emptywheel notes some oddities in the timing -- such as the grand jury investigation into Aaron seeming to ramp up just as it appeared that the big Wikileaks grand jury was coming up empty. In fact, as Emptywheel showed in a different post, it looked like the investigation into Swartz was going absolutely nowhere... until the grand jury suddenly showed renewed interest long after the arrest. The post notes that the Secret Service didn't even bother searching the laptop onto which Swartz had downloaded the JSTOR material for weeks after getting involved in his case.

But what happened in between the arrest and the sudden decision to really look into Swartz? The DOJ drew a big, fat blank against Wikileaks. The timeline:

• Swartz was arrested on January 6th, 2011.
• On February 9th it was reported that the Justice Department had drawn a blank on anything it could use to go after Wikileaks.
• That same day, February 9th, the Secret Service suddenly got around to issuing warrants to search Swartz's hardware

Oh, and one other key date. Just a couple weeks before all of this, on December 27th, 2010, Swartz had filed a FOIA seeking information concerning the treatment of Bradley Manning. As is noted in the posts linked here, it's not at all normal for the Secret Service to wait so long to get a subpoena.

I will say that I'm far from convinced there was a full connection here. There is way too much speculation and conjecture and it is quite possible (even probable) that the timing is all a coincidence. But the timing is at least worth noting, since it seems that more and more information keeps coming out about this.

Filed Under: aaron swartz, secret service
Companies: amazon, google, internet archive, jstor, mit, twitter, wikileaks

Sad: 75 Year Old Explanation For Why Copyrights Are Bad... Locked Up Behind Paywall

from the too-bad dept

A few weeks ago, we wrote about famed economist Gary Becker (along with his colleague Judge Richard Posner) discussing problems with the patent and copyright system, and pondering if the laws on both needed to change. Becker's thoughts were particularly interesting, because he actually brought up some writings on the topic that I was unfamiliar with:

The various harmful effects of the patent and copyright systems encouraged Arnold Plant, an English economist, to publish over 75 years ago two influential articles on why England and other countries would be better off without patents and copyrights.

While I've seen a number of historical arguments along those lines (Fritz Machlup's economic review of the patent system comes to mind), I had not heard of Plant's two articles. So I went in search of them... and discovered that they're locked up behind a paywall. Plant's key paper, entitled "The Economic Theory Concerning Patents for Inventions" can be found on JSTOR, where they want... $43 for the 21 page article. Yes, it's more than $2 per page. For a 78 (almost 79) year old document. Then there's his other key article, "The Economic Aspects of Copyright in Books." It, too, can be found on JSTOR for $43, though this one is 28 pages, so you get a per-page price of slightly under $2 this time... which still seems crazy.

It's not just ridiculous that these two publications, both published in 1934, are not in the public domain -- considering they argue that such locking up of information and ideas is bad for society, it's particularly ironic that they are so hard to get and and that JSTOR charges such ridiculous fees for them. Though, I guess if you want to keep such prices high so you can act as a gatekeeper, what better way than to effectively hide these works by pricing them out of the market?

Filed Under: arnold plant, copyright, paywall
Companies: jstor

US Government Ups Felony Count In JSTOR/Aaron Swartz Case From Four To Thirteen

from the trumped-up-kicks dept

Not much has been said about the Aaron Swartz case over the past year as the wheels of "justice" slowly grind their way to an eventual court date. Swartz, the executive director of Demand Progress, was charged with violating the Computer Fraud and Abuse Act, a catch-all designation for "computer activity the US government doesn't like."

Swartz had accessed MIT's computer network to download a large number of files from JSTOR, a non-profit that hosts academic journal articles. US prosecutors claimed he "stole" several thousand files, but considering MIT offered this access for free on campus (and the files being digital), it's pretty tough to square his massive downloading with any idea of "theft."

Not only that, but JSTOR was not the entity pressing charges. It had stopped the downloading and secured the "stolen" content, along with receiving assurances from Swartz that the files would not be distributed. Despite this, the feds felt compelled to arrest Swartz and charge him with four felony counts (one each for Wire Fraud, Computer Fraud, Theft of Information from a Computer and Recklessly Damaging a Computer). At this point, Swartz was looking at a possible 35-year sentence and over $1,000,000 in fines.

Whoever's pushing this case must really dislike Swartz and/or his activities. A "Superseding Indictment" (pdf) has been filed, raising the number of felony counts from four to thirteen. Seth Finkelstein at Infothought has a brief rundown of the new charges (h/t to Nate Hoffelder for the link):

There are now 13 felony counts in the new indictment, derived from claims of multiple instances of breaking those four laws. In specific:

Wire Fraud - 2 counts
Computer Fraud - 5 counts
Unlawfully Obtaining Information from a Protected Computer - 5 counts
Recklessly Damaging a Protected Computer - 1 count

It's beyond my pay grade to figure out how many years in prison that all could be, when taking into account the complexities of sentencing law. Let's leave it at a large scary number. Enough to ruin someone's life.

The new filing basically realleges all the original charges but ups the felony count by providing specific dates for each action, turning each marked date into its own felony charge. The allegations refer to Swartz's "repeated" actions as spanning several months, but the feds have pulled some arbitrary dates into the mix to add years and dollars onto his possible sentence. And, again, we have to ask: for what?

JSTOR only showed up because it was subpoenaed and if anyone's the "victim" here, it would be JSTOR. MIT has remained silent on the whole issue. So, either someone's got a deeper interest in this case than they're willing to admit publicly, or the feds found someone with enough "hacking" activity under their belt that they feel comfortable turning the defendant into an "example." Or perhaps this is a belated payback for his thorough gaming of the PACER system during a "free trial" period, something the feds briefly investigated him for back in 2009. It went nowhere as the documents involved were public records, but it had to gall them a bit that he managed to download nearly 20 million pages of text, about 20% of the entire database, before being stopped. (The government likes to collect 8 cents a page for PACER documents, meaning Swartz's stunt "cost" it nearly $1.6 million, assuming you have no idea how to properly measure "costs.")

So, how do the new charges stack up in terms of a sentence? Tough to say. Each of the charges carries the possibility of a fine and imprisonment of up to 10-20 years per felony. Depending on how many of the counts Swartz is found guilty of, the sentence could conceivably total 50+ years and fine in the area of $4 million. All this over publicly accessed research documents that JSTOR doesn't even feel the need to pursue further than it did.

Filed Under: aaron swartz, cfaa, charges, downloading, files, mit, research
Companies: jstor

JSTOR Freely Releases Public Domain Papers That Greg Maxwell Already Freed

from the competition-is-good dept

You may recall that following the indictment of Aaron Swartz for downloading some JSTOR papers, a guy named Greg Maxwell decided to upload 33GBs of public domain papers from JSTOR and make them available via The Pirate Bay. He had the papers for a while, but was afraid that he'd get legally harassed for distributing them. However, it appears the opposite has happened. Copycense points us to the news that JSTOR has now agreed to allow free access to all of its public domain material. In the announcement about this, JSTOR's managing director admits that Maxwell's actions had an impact on this effort, though she claims that JSTOR was planning to do this already:

On a final note, I realize that some people may speculate that making the Early Journal Content free to the public today is a direct response to widely-publicized events over the summer involving an individual who was indicted for downloading a substantial portion of content from JSTOR, allegedly for the purpose of posting it to file sharing sites. While we had been working on releasing the pre-1923/pre-1870 content before the incident took place, it would be inaccurate to say that these events have had no impact on our planning. We considered whether to delay or accelerate this action, largely out of concern that people might draw incorrect conclusions about our motivations. In the end, we decided to press ahead with our plans to make the Early Journal Content available, which we believe is in the best interest of our library and publisher partners, and students, scholars, and researchers everywhere.

Filed Under: aaron swartz, greg maxwell, journals, public domain
Companies: jstor

Aaron Swartz Indictment Leading People To... Upload JSTOR Research To File Sharing Sites

from the backfiring dept

If it's true that Aaron Swartz's foray into an MIT computer wiring closet was as part of a project to copy JSTOR research and upload it to file sharing sites for open access, then I imagine part of the government's rationale for going after him would be the hope that it would act as a deterrent against anyone else doing the same thing. Of course, as I've pointed out with the feds' attempt to arrest members of Anonymous, it seems likely that this move will backfire in a big bad way. All it does is draw much more attention to the original goal. Indeed, Adam points us to the news that a guy by the name of Greg Maxwell just released 33GB of JSTOR scientific papers via The Pirate Bay because of the indictment against Aaron. In this case, believe it or not, it's all public domain research, which JSTOR is trying to charge hundreds of thousands of dollars to access. Since I have no idea if the content will remain where it is, I'm publishing the entire note explaining what's in the documents and why they're being published. It's very much worth reading and redistributing his message. The bold emphasis is from me, highlighting what I believe are the important points:

-----BEGIN PGP SIGNED MESSAGE-----
Hash: SHA1

This archive contains 18,592 scientific publications totaling 33GiB, all from Philosophical Transactions of the Royal Society and which should be available to everyone at no cost, but most have previously only been made available at high prices through paywall gatekeepers like JSTOR.

Limited access to the documents here is typically sold for $19 USD per article, though some of the older ones are available as cheaplyas $8. Purchasing access to this collection one article at a time would cost hundreds of thousands of dollars.

Also included is the basic factual metadata allowing you to locate works by title, author, or publication date, and a checksum file to allow you to check for corruption.

ef8c02959e947d7f4e4699f399ade838431692d972661f145b782c2fa3ebcc6a sha256sum.txt

I've had these files for a long time, but I've been afraid that if I published them I would be subject to unjust legal harassment by those who profit from controlling access to these works.

I now feel that I've been making the wrong decision.

On July 19th 2011, Aaron Swartz was criminally charged by the US Attorney General's office for, effectively, downloading too many academic papers from JSTOR.

Academic publishing is an odd system -- the authors are not paid for their writing, nor are the peer reviewers (they're just more unpaid academics), and in some fields even the journal editors are unpaid. Sometimes the authors must even pay the publishers.

And yet scientific publications are some of the most outrageously expensive pieces of literature you can buy. In the past, the high access fees supported the costly mechanical reproduction of niche paper journals, but online distribution has mostly made this function obsolete.

As far as I can tell, the money paid for access today serves little significant purpose except to perpetuate dead business models. The "publish or perish" pressure in academia gives the authors an impossibly weak negotiating position, and the existing system has enormous inertia.

Those with the most power to change the system--the long-tenured luminary scholars whose works give legitimacy and prestige to the journals, rather than the other way around--are the least impacted by its failures. They are supported by institutions who invisibly provide access to all of the resources they need. And as the journals depend on them, they may ask for alterations to the standard contract without risking their career on the loss of a publication offer. Many don't even realize the extent to which academic work is inaccessible to the general public, nor do they realize what sort of work is being done outside universities that would benefit by it.

Large publishers are now able to purchase the political clout needed to abuse the narrow commercial scope of copyright protection, extending it to completely inapplicable areas: slavish reproductions of historic documents and art, for example, and exploiting the labors of unpaid scientists. They're even able to make the taxpayers pay for their attacks on free society by pursuing criminal prosecution (copyright has classically been a civil matter) and by burdening public institutions with outrageous subscription fees.

Copyright is a legal fiction representing a narrow compromise: we give up some of our natural right to exchange information in exchange for creating an economic incentive to author, so that we may all enjoy more works. When publishers abuse the system to prop up their existence, when they misrepresent the extent of copyright coverage, when they use threats of frivolous litigation to suppress the dissemination of publicly owned works, they are stealing from everyone else.

Several years ago I came into possession, through rather boring and lawful means, of a large collection of JSTOR documents.

These particular documents are the historic back archives of the Philosophical Transactions of the Royal Society--a prestigious scientific journal with a history extending back to the 1600s.

The portion of the collection included in this archive, ones published prior to 1923 and therefore obviously in the public domain, total some 18,592 papers and 33 gigabytes of data.

The documents are part of the shared heritage of all mankind, and are rightfully in the public domain, but they are not available freely. Instead the articles are available at $19 each--for one month's viewing, by one person, on one computer. It's a steal. From you.

When I received these documents I had grand plans of uploading them to Wikipedia's sister site for reference works, Wikisource--where they could be tightly interlinked with Wikipedia, providing interesting historical context to the encyclopedia articles. For example, Uranus was discovered in 1781 by William Herschel; why not take a look at the paper where he originally disclosed his discovery? (Or one of the several follow on publications about its satellites, or the dozens of other papers he authored?)

But I soon found the reality of the situation to be less than appealing: publishing the documents freely was likely to bring frivolous litigation from the publishers.

As in many other cases, I could expect them to claim that their slavish reproduction--scanning the documents--created a new copyright interest. Or that distributing the documents complete with the trivial watermarks they added constituted unlawful copying of that mark. They might even pursue strawman criminal charges claiming that whoever obtained the files must have violated some kind of anti-hacking laws.

In my discreet inquiry, I was unable to find anyone willing to cover the potentially unbounded legal costs I risked, even though the only unlawful action here is the fraudulent misuse of copyright by JSTOR and the Royal Society to withhold access from the public to that which is legally and morally everyone's property.

In the meantime, and to great fanfare as part of their 350th anniversary, the RSOL opened up "free" access to their historic archives--but "free" only meant "with many odious terms", and access was limited to about 100 articles.

All too often journals, galleries, and museums are becoming not disseminators of knowledge--as their lofty mission statements suggest--but censors of knowledge, because censoring is the one thing they do better than the Internet does. Stewardship and curation are valuable functions, but their value is negative when there is only one steward and one curator, whose judgment reigns supreme as the final word on what everyone else sees and knows. If their recommendations have value they can be heeded without the coercive abuse of copyright to silence competition.

The liberal dissemination of knowledge is essential to scientific inquiry. More than in any other area, the application of restrictive copyright is inappropriate for academic works: there is no sticky question of how to pay authors or reviewers, as the publishers are already not paying them. And unlike 'mere' works of entertainment, liberal access to scientific work impacts the well-being of all mankind. Our continued survival may even depend on it.

If I can remove even one dollar of ill-gained income from a poisonous industry which acts to suppress scientific and historic understanding, then whatever personal cost I suffer will be justified--it will be one less dollar spent in the war against knowledge. One less dollar spent lobbying for laws that make downloading too many scientific papers a crime.

I had considered releasing this collection anonymously, but others pointed out that the obviously overzealous prosecutors of Aaron Swartz would probably accuse him of it and add it to their growing list of ridiculous charges. This didn't sit well with my conscience, and I generally believe that anything worth doing is worth attaching your name to.

I'm interested in hearing about any enjoyable discoveries or even useful applications which come of this archive.

- ----
Greg Maxwell - July 20th 2011
gmaxwell@gmail.com Bitcoin: 14csFEJHk3SYbkBmajyJ3ktpsd2TmwDEBb

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iEYEARECAAYFAk4nlfwACgkQrIWTYrBBO/pK4QCfV/voN6IdZRU36Vy3xAedUMfz rJcAoNF4/QTdxYscvF2nklJdMzXFDwtF =YlVR
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Filed Under: aaron swartz, academic research, copyright, greg maxwell, knowledge
Companies: jstor, the pirate bay

Feds Charge Aaron Swartz With Felony Hacking... For Downloading A Ton Of Academic Research

from the how-dare-he! dept

Well, the big story making the rounds today has been the charges filed against Aaron Swartz by US prosecutors for violating the Computer Fraud and Abuse Act -- a law that is all too often been abused by the feds to attack people they don't like. Wired News has the most comprehensive coverage as far as I can tell.

If you're unfamiliar with Aaron, while most of the reports refer to him as a co-founder of Reddit (which is a bit of a stretch as he was actually merged into Reddit as part of an early Ycombinator program) and as the founder of Demand Progress, I remember him from way before that -- back when he was a teenager and helped author the RSS 1.0 spec.

As for the specifics of the case, it's still a little hazy. The full indictment is embedded below, but the story being pushed by the feds is that Aaron maliciously hacked into JSTOR, a non-profit organization that hosts academic journal articles, via a computer room at MIT and then downloaded millions of records, bringing JSTOR's servers to a screaming halt. Believe it or not, the indictment directly claims that he "stole" these articles, despite them being offered up for download via open access on various university campuses. He didn't "steal" a damn thing.

Demand Progress paints a very different portrait of what happened, pointing out that he was downloading works that appeared to be authorized and that the complaint seems to really just be that he downloaded too much:

“This makes no sense,” said Demand Progress Executive Director David Segal; “it’s like trying to put someone in jail for allegedly checking too many books out of the library.”

“It’s even more strange because JSTOR has settled any claims against Aaron, explained they’ve suffered no loss or damage, and asked the government not to prosecute,” Segal added.

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

JSTOR, itself, put out a statement that, at the very least, suggests that after they talked to Aaron and confirmed he wasn't going to release the data he downloaded, that that was all they cared about:

We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified. We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.

The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office.

It's not clear, then, how the Feds became involved in the first place. It's entirely possible JSTOR alerted them originally, and then the investigation went from there. From the details, it seems more likely that MIT may have reported the situation to the feds.

As far as I can tell, the crux of the argument against Swartz is that he violated the JSTOR terms of service, specifically the part about automated downloading, which in the minds of the feds, makes you a felon who can face up to 35 years in jail and $1 million fines. There's a lot of fluff around that violation of terms of service, about how he "broke into" an MIT computer writing room and covered his face with a bicycle helmet. But, really, that's all to set up the claim that he knowingly was getting around the terms of service and certain technological measures that JSTOR had put on its system to avoid such mass downloads.

It doesn't looked like Swartz actually "hacked" into anything. He went onto MIT's campus and logged in as a guest, as MIT allows. Now, it does appear that JSTOR and MIT took somewhat weak efforts to block him from mass downloading JSTOR works, and Aaron took rather trivial measures to get around that (change the IP, change the MAC address). The government is using that to suggest malicious intent.

But what was Aaron actually doing this for? I imagine that will come out soon enough. The government claims that he "intended to distribute a significant portion of JSTOR's archive of digitized journal articles through one or more file-sharing sites." That may be possible, though JSTOR says that Aaron had already promised the works would not be distributed. It's important to note that Aaron has a long history of being involved in open access and open records movements, and was investigated by the feds once before for doing something similar. In that case, he set up a program to download legal documents from PACER, which are public documents, to post them on a free internet service. That case went nowhere, of course, because those documents are public. Separately, in the past, Aaron has gone through academic research to help with research papers on potential conflicts of interest in research funding. I have no idea what he was trying to do here, but it seems likely that it had to do with more open records research. Perhaps he was trying to open up works that were funded by federal dollars?

Either way, a felony indictment and threats of 35 years in jail and $1 million in fines seems ridiculously excessive and vindictive when you consider what he actually did here: which was download 4.8 million academic articles via a network that allowed such downloads. Yes, he used automated means barred by the terms of service, and yes, after being barred a few times, he worked out how to get around that. But it's hard to see how any of that really deserves felony prosecution for computer hacking, with totally bogus claims from the feds about how "stealing is stealing." He wasn't "stealing" anything or you would have charged him with theft. Actually, the stealing is stealing comment from US Attorney Carmen M. Ortiz is so chock full of wrong, it deserves special mention:

Stealing is stealing whether you use a computer command or a crowbar and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away.

Downloading data made available on a network is not "stealing." And he made copies of documents. He did not "take" them. JSTOR still had the documents. And, JSTOR doesn't seem to be acting like a victim of "theft" here. It certainly looks like Aaron did some things that were questionable in how he accessed this data. But does it raise to the level of a federal indictment for criminal hacking? That seems like a huge, huge stretch.

Filed Under: aaron swartz, cfaa, demand progress, hacking
Companies: jstor, mit