“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” – Thomas Jefferson, 1813.
Aaron Swartz was indicted on 13 felony charges for downloading approximately 4.3 million academic articles from the online database JSTOR in July 2011.
Swartz committed suicide on Jan. 11, 2013, while he was in the midst of a tense federal court battle over the files. The 26-year-old coding sage and activist struggled with depression, and his friends and family believe the harsh prosecution tipped him into suicidal ideation. In his 26 years, Swartz co-founded Reddit, organized Demand Progress, helped create RSS and Creative Commons and led the charge to stop SOPA and PIPA, two controversial piracy bills. His intense devotion to activism stirred young people to protest SOPA/PIPA in an unprecedented flexing of Internet hivemind muscle. Swartz possessed dizzying potential as a force for good.
His death inevitably colors every conversation about his actions, and commentators and reporters tend to focus on the overzealous prosecution, rather than the ethical foundation of his behavior.
It’s not clear exactly what Swartz intended to do with the JSTOR articles. But based on his politics, it is extremely unlikely that Swartz intended to sell them, and it’s likely that he planned to distribute the documents in some capacity. It’s not clear whether he wanted to focus on disseminating the articles in the third world, or to make them available to everyone with Internet access.
In Eremo, Italy, back in 2008, Swartz drafted what he called the “Guerilla Open Access Manifesto.” He laid out a persuasive case against the current information distribution system, highlighting how certain people have more privilege than others, depending on their socioeconomic status.
As Swartz wrote, “Information is power. But like all power, there are those who want to keep it for themselves. The world’s entire scientific and cultural heritage, published over centuries in books and journals, is increasingly being digitized and locked up by a handful of private corporations.”
The manifesto is a potent call to action, and one that prophesies the JSTOR download. Swartz’s declaration unambiguously called for the exact type of actions he took in the MIT closet where he downloaded the articles: “There is no justice in following unjust laws. It’s time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture.”
The manifesto continues: “We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that's out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access.”
Federal prosecutors used the manifesto as evidence of Swartz’s guilt. Though JSTOR did not press charges, the prosecutors pushed hard to punish Swartz, perhaps attempting to make an example of him to illustrate that the court would not go easy on hackers. Swartz was not initially indicted for breaking copyright; instead, he was charged with breaking the Computer Fraud and Abuse Act of 1986.
Lawrence Lessig, one of Swartz’s closest confidants, and a professor and cyberlaw expert at Harvard, gave a talk about Swartz at the university last week. Lessig could not disclose Swartz’s intentions for downloading the catalog because he acted as Swartz’s lawyer for a short time. But his words shed light on what Swartz may have done with the articles he downloaded.
Lessig mentored Swartz, and he delivered a passionate speech about his close friend, laying out a clear case against the prosecution and for Swartz’s personal integrity. However, Lessig did not mount a case defending Swartz’s actions.
But perhaps he should have.
JSTOR isn’t exactly a mustache-twirling villain, and it does not control the exorbitant fees per article – the journals they host do.
So it’s not as if Swartz attempted to free these articles from an institution that hoarded them to selfishly amass a fortune.
Swartz’s decision to download JSTOR’s catalog may not have been the most impactful way to call attention to and rectify the injustice of walled-off information. But it clearly falls into two of philosopher and constitutional law scholar Ronald Dworkin’s categories for civil disobedience. The first is “integrity based,” where someone opposes a law they feel is immoral. The second is “policy based,” where someone violates a law to illustrate that it must be amended.
Years after Dworkin defined the categories of civil disobedience, he outlined how important it is to avoid prosecuting them. In his essay “On Not Prosecuting Civil Disobedience,” Dworkin’s words presaged the tragic conclusion to Swartz’s saga: “our society suffers a loss if it punishes a group that includes—as the group of draft dissenters does—some of its most thoughtful and loyal citizens. Jailing such men solidifies their alienation from society, and alienates many like them who are deterred by the threat.”
Based on his Swartz’s prior statements on information access, it’s fair to guess Swartz saw distributing JSTOR’s information to people who did not have access to it as an act of liberation. Though his strategy landed him in big trouble, Swartz’s actions were clearly an act of civil disobedience. Instead of getting excused as a lapse in judgment from an otherwise brilliant mind, they should be viewed as an extension of his larger commitment to justice.
Acts of civil disobedience tend to get cast in warmer light as time passes. Hagiographers and historians praise leaders like Martin Luther King, Jr. and Gandhi, both who broke laws they felt unjust. Leaders like these did not win their victories without bruising bystanders, but such inevitable harms were dwarfed by the massive societal gains that followed.
When civil disobedience addresses causes that are less accessible and immediately rousing than equal rights and anti-colonialism, it’s not as easy to justify the decision to break the law. But that doesn’t make the desire to fight for open access less ethically valid. Information access isn’t quite as sexy as more flagrant human rights violations, but the exclusionary nature of the current information distribution system certainly contributes to larger systemic inequality, since the people who have access to important information are better equipped for life than those who do not.
Placing Swartz in the same category as famous civil dissidents like MLK and Gandhi is an incendiary gesture. And there is an explicit division between the goals of King and Gandhi and those of Swartz. The former two violated laws to secure basic rights for a specific oppressed constituency. Swartz’s fight for open information access appears, at first glance, to be much more “special interest” and narrow– but that does not mean Swartz’s cause is unworthy.
In the outpouring of grief and examinations of the events leading up to Swartz’s death, many luminaries, Lessig included, emphasized that they wholeheartedly endorsed the sentiments and ideals behind Swartz’s actions. However, they did not necessarily condone the actions themselves – as Lessig noted, though he believed the same thing as Swartz, “his means were not mine.”
Could Swartz have picked a better target? Certainly. JSTOR contributes to the roping off academic articles, but it also does not have the power to set those article prices, and it does the academic community a service by making these materials accessible. It’s hard to rally against an organization dedicated to intellectual progress.
So why did Swartz target JSTOR? While his exact motivations behind this particular project remain unknown, based on his previous rallying cries against information exclusivity, it is clear he wanted to grant everyone access to academic texts, not just people in positions of privilege.
JSTOR helps people who can access its articles, but it is ineffectual at delivering materials needed for intellectual progress to large swathes of people. And sure, most people don’t want to look at JSTOR, since it contains academic documents that generally only appeal to scholars, which makes it all the more poignant when someone who could really benefit from access is blocked by exorbitant pricing.
Many acts of civil disobedience have collateral damage.
But would releasing JSTOR’s catalog have hurt the authors and institutions supporting academic progress? As discussed above, authors do not get paid for their contributions to JSTOR. And while journals set the prices for their JSTOR articles, they do not make money off of being on JSTOR. The only thing that might become obsolete if each article available on JSTOR became accessible for free is JSTOR itself.
As mentioned above, JSTOR isn’t evil, and it provides a service. But the people who can take advantage of its services represent a small percentage of the global population. If activists like Swartz disseminated the information for free online and provided a more affordable or free alternative, it would give more people the chance to benefit from what is supposed to be a shared intellectual heritage. The current model obstructs discovery by keeping documents out of reach of people over lower socio-economic means and less privilege.
But JSTOR does provide a service beyond putting these papers online. JSTOR scans and digitizes the documents, which costs money. If JSTOR gets eliminated because all of its information is available for free and institutes no longer want to pay a subscription fee, all of the articles it would put up in the future aren’t going to magically scan themselves or find themselves a server. Chances are, even if JSTOR articles appear online for people who cannot otherwise access them, institutions and academics will still want to use the service because it puts everything in one convenient place.
Positive ripple effects from Swartz’s actions are already happening. After an online petition drew over 65,000 signatures, the White House moved to make federally funded research publicly available.
JSTOR issued a statement about Swartz up on its website. One line stands out: “We will continue to work to distribute the content under our care as widely as possible while balancing the interests of researchers, students, libraries, and publishers.”
This line illustrates how JSTOR serves many masters, including publishers. Nowhere in the statement does JSTOR mention how the current pricing system makes it financially unrealistic for people without privilege and money to access these materials.
If Swartz did intend to make the information he downloaded available to all people with Internet access, it would have been a bold act of civil disobedience. That act should have shone light on how wrong it is for institutions devoted to intellectual progress to embrace socioeconomically exclusory practices. And Swartz’s decision to expose how deeply artificial the division between the information “haves” and information “have-nots” is by bridging the gap with technology certainly falls into the categories of “integrity based” and “policy based” civil disobedience.
I write this as a writer on a strict budget. Researching this article proved difficult for me because of the high price of admission to many of the sources I wanted to use. Luckily for me, I have a husband who is currently attending an elite academic institution, so I accessed information using his JSTOR privileges. Otherwise, I would have spent hundreds of dollars looking at the information that informed this article.
If it came down to brass tacks, I could have feasibly scrounged up the money to see some of the sources. But other minds aren’t in the same position. Aaron Swartz identified a legitimate societal ill in the barrier to information access. He broke laws in a stunt that drew attention to this problem. The United States government recognized that information meant for the public was unfairly withheld. Swartz’s ambitions in his act of defiance were narrower in scope than the iconic civil dissidents that went before him. And Swartz could have chosen a better target. But as he sought to use hacking to illuminate a social justice problem, his decision to download the JSTOR articles was consistent with the ethically valid tradition of civil disobedience.
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