Aaron Swartz rose to fame in the tech community as a brilliant programmer at a very young age.  Barely a teenager, he co-authored the RSS 1.0 specification (a format for delivering regularly changing web content, commonly used by news websites and blogs).  Later, Mr. Swartz worked with the W3C (World Wide Web Consortium), the Creative Commons, attended Stanford for one year, and founded his own internet startup.  Today he is looking at possibly spending the next 35 years of his life behind bars.

In late 2010, officials at the Massachusetts Institute of Technology (MIT) and JSTOR, a company that digitizes academic articles and makes them available online through a subscription, began to notice irregular downloading activities of JSTOR content coming from the campus.  Apparently one single computer was downloading more articles than all other MIT computers combined.  Alarmed MIT and JSTOR staff attempted to block network access to the computer.   However, their efforts proved futile.  At one point, as the computer was downloading more than one hundred times the number of downloads that legitimate MIT users of JSTOR were downloading, JSTOR’s servers crashed.  All in all, more than 4 million documents were downloaded.

It later emerged that a computer hacker had logged into MIT’s network using a 14-day guest login.  The computer contained a program designed to download JSTOR content in bulk.  It was hidden in the basement of a building on campus, attached to the school’s network, and left running so as to download content 24-hours per day.  Months later, the computer’s owner was caught on camera returning to the basement, covering his face with a bicycle helmet.  Following a brief foot chase, police apprehended the alleged hacker, finally revealing his true identity.  It was Mr. Swartz.

What motivated this tech genius to mastermind the theft of JSTOR’s documents is still not fully understood.  The U.S. government alleges that Mr. Swartz intended to share the documents, many of which were copyrighted, through a file sharing site.  Mr. Swartz, who at the time of the alleged theft was ironically a fellow at Harvard’s Center for Ethics, has never stated what he was going to do with the content and has since returned the hard-drive containing all the copied material to JSTOR.  Although JSTOR has opted not to press any charges against Mr. Swartz, the U.S. government has filed criminal charges.  Mr. Swartz now faces a maximum 35 years in prison and a one million dollar fine.

Interestingly, shortly after Mr. Swartz’s arrest, a Washington D.C.-based supporter named Greg Maxwell posted more than 18,500 articles from JSTOR, online.  The files were uploaded onto the bit-torrent website Pirate Bay and included an impassioned letter in which Mr. Maxwell articulately critiques academic publishing as a system that perpetuates an outdated business model and abuses copyright protections.  Furthermore, he explains that he gained possession of the documents legally and that all are part of the public domain since they were created prior to 1923.

Mr. Maxwell has wanted to share the documents with the world for a long time because “scientific publications are some of the most outrageously expensive pieces of literature you can buy,” and there is no reason why JSTOR should be charging $19 for articles that are part of the public domain.  However, he was afraid that publishing the articles would expose him to “unjust legal harassment” from the big publishers, who were likely to bring frivolous litigation by claiming that they had acquired new copyright interests by adding watermarks or scanning the documents.

The arrest of Mr. Swartz for “effectively, downloading too many academic papers,” made Mr. Maxwell realize he was wrong to not have made the material available earlier.  His letter closes by asserting that “the liberal dissemination of knowledge is essential to scientific inquiry . . . [m]ore 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.”

Although Mr. Maxwell’s fear that he may be sued by publishers claiming that works in the public domain have been transformed into copyrighted works after undergoing minor modifications is not unfounded, he has yet to actually be sued by a publisher.  Meanwhile, Mr. Swartz’s charges relate more to the hacking he engaged in than any copyright infringement.  As more and more people come to characterize the actions of Messrs. Maxwell and Swartz as Robin Hood’esque, and others come to support the condemnation of academic publishing, could we see many more “academic Robin Hoods” releasing documents?  I don’t know, but JSTOR recently agreed to allow free access to all of its public domain material.  Westlaw and LexisNexis would be wise to stay apprised of the situation.

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