[FoRK] Aaron Swartz Was Right

Eugen Leitl eugen at leitl.org
Thu Feb 28 04:46:58 PST 2013


The Chronicle Review 
February 25, 2013

Aaron Swartz Was Right

By Peter Ludlow

The suicide of the Internet wunderkind Aaron Swartz has given rise to a great
deal of discussion, much of it centered on whether the penalty sought against
him by the prosecutor was proportional to his "crime."

The consensus so far has been that Swartz did something wrong by accessing
and releasing millions of academic papers from the JSTOR archive. But perhaps
it is time to ask whether Swartz did in fact act wrongly. We might entertain
the possibility that Swartz's act of civil disobedience was an attempt to
help rectify a harm that began long ago. Perhaps he was not only justified in
his actions but morally impelled to act as he did. Moreover, we too might be
morally impelled to take action.

To put it bluntly, the current state of academic publishing is the result of
a series of strong-arm tactics enabling publishers to pry copyrights from
authors, and then charge exorbitant fees to university libraries for access
to that work. The publishers have inverted their role as disseminators of
knowledge and become bottlers of knowledge, releasing it exclusively to the
highest bidders. Swartz simply decided it was time to take action.

He laid the philosophical groundwork back in 2008, in an essay entitled
"Guerilla Open Access Manifesto."

"Information is power," he wrote. "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. Want to
read the papers featuring the most famous results of the sciences? You'll
need to send enormous amounts to publishers like Reed Elsevier."

Swartz said that this state of affairs was being driven by systemic problems,
beginning with the need of corporations to extract maximum profit. "Large
corporations, of course, are blinded by greed," he wrote. "The laws under
which they operate require it—their shareholders would revolt at anything
less. And the politicians they have bought off back them, passing laws giving
them the exclusive power to decide who can make copies."

Finally, he argued that the situation called for action:

"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."

You might think that Swartz's prose is over the top ("bought off"
politicians? "theft of culture"?), but it is very much on target. The
academic publisher Elsevier has contributed to many U.S. Congressional
representatives, pushing the Elsevier-supported Research Works Act, which
among other things would have forbidden any effort by any federal agency to
ensure taxpayer access to work financed by the federal government without
permission of the publisher. An outcry effectively killed the proposed law,
but it wasn't the first such publisher power play, and it probably won't be
the last.

What is more important to human culture than access to the knowledge in our
scholarly journals? If anything, Swartz's manifesto understates the
egregiousness with which this theft of public culture has been allowed to

Why did Swartz think that information in JSTOR belonged in the public domain?
First, for the most part the articles in JSTOR were written with government
support—either through agencies like the National Science Foundation and the
National Endowment for the Humanities, through state-financed educational
institutions, or through the tuition of students and the donations of alumni.

Once a student graduates from her college she no longer has access to
JSTOR—even though her tuition supported the research that went into the data
represented there. She may go on to be a generous donor to her college and
still not have access to JSTOR. You have to be a faculty member or student to
have access, even though, to some degree, everyone helped pay for that

Many people I talk to assume payments to JSTOR flow through to the authors of
the archived publications. But authors of academic publications, for the most
part, don't see a dime from their journal publications. Ever. Worse still,
some academic publishers now demand payments from authors to publish their
papers. The academic publisher Springer, for example, has attempted to steer
journal submissions to its online publication Springer Plus, offering to
publish them for 850 euros each, albeit allowing some waivers.

How is that even possible? Here it is important to think about one of the
consequences of the publish-or-perish model in academe. If you don't publish,
you won't get tenure. Even if you have tenure, your reputation (and salary)
is staked to your publication record. In my field, philosophy, the top
journals accept only about 5 percent of submissions. That means that
publishers of academic journals have tremendous bargaining power with their

When an academic signs away copyright to an academic publisher, it amounts to
a "contract of adhesion"—meaning a contract in which one party has all the
power and it was not freely bargained. One could even make the case that the
courts ought to void these contracts.

There was a time when securing a contract with an academic publisher meant
that the work would receive the widest audience possible. The publishers
could deliver journals to academic libraries, and other scholars would find
those works when they went to browse the library (I used to do that on a
monthly basis). Today, however, it would be much more efficient to simply
make the articles available online to anyone who wishes to read them.
Academic publishers have inverted their whole purpose for being; they used to
be vehicles for the dissemination of knowledge in the most efficient way
possible. Today they are useless choke points in the distribution of
knowledge, even taking advantage of their positions to demand fees.

Noam Scheiber, in a February 13 New Republic article, traces how Swartz
focused on JSTOR in part because of a retreat he'd attended in Italy
organized by the international nonprofit EIFL. According to its Web site,
EIFL "works with libraries worldwide to enable access to digital information
in developing and transition countries." Scheiber writes that EIFL is careful
about obeying the law in the ways it disseminates information, but its key
message apparently got to Swartz. "Rich people pay huge amounts of money to
access articles," Scheiber quotes the EIFL official Monika Elbert as saying
about the conference. "But what about the researcher in Accra? Dar es Salaam?
Cambodia? It genuinely opened his eyes," she said of Swartz.

JSTOR, which did not pursue criminal charges against Swartz and "regretted
being drawn into" the U.S. attorney's case against him, came into existence
in 1995 with good intentions. It sought a solution to the rapidly expanding
problem of paying for and storing an ever-growing list of academic journals.
The situation for libraries was becoming untenable.

But like the original authors, JSTOR had to negotiate its licensing
agreements from a position of weakness. There is a wonderful history of JSTOR
written by Roger C. Schonfeld. In it he notes that the charter publishers
signed up by JSTOR (in particular the University of Chicago Press) demanded
that they be compensated if there was a loss to their (minimal) sales of
rights to older materials, and they demanded compensation even before JSTOR
covered its own expenses.

And JSTOR really was in an impossible bargaining position. Important
scientific papers do not have cheaper alternatives. If someone wants to read
Watson and Crick's paper on DNA or Einstein's paper on the photoelectric
effect, it is not as if there is a paper by John Doe that is just as good and
available for less. Academic publishers are, in effect, natural monopolies
that can demand as much money as we can afford, and possibly more. The result
today is that a university like mine must subscribe to more than 10
databases, at a cost of tens of thousands of dollars per year and without the
ability to share the content with alumni, donors, or the community. JSTOR is
experimenting with a "Register and Read" program that allows independent
scholars free access to a subset of its database, but we need more solutions.

It's not as if there are no other options. For example, the philosophy
department at the University of Michigan at Ann Arbor started an online
journal called Philosophers' Imprint, noting in its mission statement the
possibility of a sunnier alternative:

"There is a possible future in which academic libraries no longer spend
millions of dollars purchasing, binding, housing, and repairing printed
journals, because they have assumed the role of publishers, cooperatively
disseminating the results of academic research for free, via the Internet.
Each library could bear the cost of publishing some of the world's scholarly
output, since it would be spared the cost of buying its own copy of any
scholarship published in this way. The results of academic research would
then be available without cost to all users of the Internet, including
students and teachers in developing countries, as well as members of the
general public."

But a few paragraphs later the editors of Imprint acknowledge that "we don't
know how to get to that future from here." While "academic institutions have
access to the Internet [and] they have no reason to pay subscription or
subvention fees to anyone for disseminating the results of academic
research," they continue to do so. And I would argue that the fault lies with
us academics.

Why do scholars still submit their articles to journals that are behind pay
walls, and more important why do they serve as editors and referees for these
journals (usually gratis)? They submit articles because there is still
prestige attached to these journals and because online alternatives do not
carry the same weight in tenure and promotion decisions. This is of course
due to the general inertia of academic life. Academics need to do some soul
searching: Is placing so much weight on tradition worth the cost to members
of the profession and the public at large?

Until academics get their acts together and start using new modes of
publication, we need to recognize that actions like Aaron Swartz's civil
disobedience are legitimate. They are attempts to liberate knowledge that
rightly belongs to all of us but that has been acquired by academic
publishers through tens of thousands of contracts of adhesion and then
bottled up and released for exorbitant fees in what functionally amounts to
an extortion racket.

When Swartz wrote his manifesto he pulled no punches, claiming that all of us
with access to these databases have not just the right but the responsibility
to liberate this information and supply it to those who are not as

"Those with access to these resources—students, librarians, scientists—you
have been given a privilege," he wrote. "You get to feed at this banquet of
knowledge while the rest of the world is locked out. But you need not—indeed,
morally, you cannot—keep this privilege for yourselves. You have a duty to
share it with the world. And you have: trading passwords with colleagues,
filling download requests for friends."

Aaron Swartz's act of hacktivism was an act of resistance to a corrupt system
that has subverted distribution of the most important product of the
academy—knowledge. Until the academy finally rectifies this situation, our
best hope is that there will be many more Aaron Swartz-type activists to
remind us how unconscionable the current situation is, and how important it
is that we change it.

Peter Ludlow is a professor of philosophy at Northwestern University. His
books include "Crypto Anarchy, Cyberstates, and Pirate Utopias" (MIT Press,
2001) and "The Second Life Herald: The Virtual Tabloid That Witnessed the
Dawn of the Metaverse" (MIT, 2007).

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