A sacrifice on the altar of Intellectual Property

Aaron Swartz died. He had “stolen” what always should have been free.

Aaron Swartz died yesterday, by his own hand. He was 26, and facing up to thirty years in federal prison for downloading most of JSTOR. Prosecutors had offered him a plea-bargain involving confession to a felony and a year behind bars, but he’d turned it down.

I only met him once, a few weeks ago. He was on a project to figure out how a couple of hedge fund zillionaires could contribute to moving drug policy forward. Very sharp, very serious about getting it right, eager to learn, willing to change his mind, committed to a world-view he called “analytic altruism.”

And (it seemed) remarkably calm under the looming threat of prison.

Aaron Swartz’s crime was “stealing” what should have been free in the first place. Yes, someone has to pay for the process of academic publishing. But the right price for access to scientific knowledge is identically zero. JSTOR makes the world’s scientific knowledge available for free to those affiliated with JSTOR’s member universities. But in a sane world everyone would have that access, and the governments that spend money to fund research would spend a tiny bit more money to maintain a free research-access system.

Lawrence Lessig makes the argument that the prosecution was over-zealous. More generally, we need to stop acting as if information ought to be bought and sold under a set of legal conventions devised for rival-consumption goods. The Constitutional power to create “intellectual property” in the form of patents and copyrights comes with the clause that it is to be used “to promote science and the useful arts.” The current system impedes both. It’s not technically impossible to replace it. But the business of selling what ought to be free is a big business, and it will take big political muscle to push it aside.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

20 thoughts on “A sacrifice on the altar of Intellectual Property”

  1. It’s a sacrifice, surely, but isn’t it on the altar of prosecutorial arrogance, or something?

  2. This issue it seems to me is a sad but clear example of how the ethics of the market (private property rights,m exchange) do not mesh with the ethics of science and scholarship ()a gift economy of exchanges in return for recognition). Scholars are caught in the middle as we do not expect significant income (if any at all) from our scholarly contributions, and the recognition we do need for our careers comes from our work being used, whereas the corporations and similar organizations that control the content of most scholarly publication benefit because desired articles are scarce enough people will pay for them. The disconnect is fundamental.

    One workable alternative is what was done in the United States and Canadian Academy of Pathology. A “Knowledge Hub” was devised that made the most recent research available for free to anyone on earth. http://www.uscap.org/index.htm?hub.htm Millions of hits ensued and have rapidly increased every year. By giving away millions of dollars of free information of immediate importance the organization has increased and prospered because having your paper published instantly gives you world wide recognition. The gift economy on steroids.

    We desperately need to find ways to exclude the corporate mentality from science and academia.

  3. I knew Aaron. I won’t make any broader point here. He was an incredible person, in the best sense of that word. The world is a worse place without him.

    I am stunned to read the news here. Crying at my desk is no way to start the weekend.

    Rest in peace.

  4. Copyright laws will be loosened about the same time the enclosures acts are completely repealed.

    Which is to say: never.

    Once the wealthy have been given new property rights, they will never give them up in the long term. Medium term aberrations, such as the communist era, excepted.

  5. It is tragic that a brilliant, accomplished, idealistic person like Mr. Swartz has died, and has died so young and apparently undergoing such distress. This is wrong.

    That said, what Mr. Swartz did was not right, and was not an effective blow in favor of the admirable causes he espoused. He burglarized MIT and abused JSTOR in order to free up journal articles, many of them decades old, that he feels should be in the public domain. The vast preponderance of those articles will have been researched and written using public or charitable funds, and I happen to agree with Swartz about his goals – but not his methods. JSTOR exists to make these articles maximally accessible to the people who most need them; in doing so, it bears costs to digitize the articles, to archive and index them, and to transmit them on request. And JSTOR has to pay to license the articles from the people who own the copyrights. It does all of this as a not-for-profit institution, having initially been started with charitable funds. What Mr. Swartz chose to do imperiled JSTOR’s mission, threatened to deprive them of their operating costs and to render the people who own the intellectual property JSTOR distributes unwilling to risk their intellectual property being lost en masse through JSTOR’s servers. Mr. Swartz had some of the right ideas, but he had the wrong methods, and the wrong targets.

    1. It may be that his tactics in this case were misguided. But it’s worth noting that JSTOR declined to press charges and asked the feds to drop it. It was a federal prosecutor, Carmen Ortiz[1], who took up the cause and pressed on.

      I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.
      from Mr. Lessig’s post.

      [1] The NYT article seems to have inexplicably dropped this portion of its article.

    2. Quite right Warren Terra. Take away JSTOR and all those articles would be sitting on shelves rotting away in university libraries. JSTOR dramatically improved human access to knowledge and it did it as a non-profit. They should not be lumped in with the Elsevier Inc.s of the world.

      1. “They should not be lumped in with the Elsevier Inc.s of the world.”

        And I haven’t heard of federal prosecutors going after Elsevier, although they did commit fraud, and did so across state lines.

  6. Clearly, Aaron Swartz was a brilliant and dedicated programmer, committed to social justice and freedom of information. But I’m troubled by the implication, made in many obituaries by friends and colleagues of his, that he was “killed” indirectly by his case.

    He suffered, by all accounts, from a lifelong depression–and he took his own life. Other people, in the same circumstances, would have fought the conviction and continued fighting through a prison sentence.

    This was not a case of overzealous government prosecutors “killing” a brilliant programmer, whatever we might think of their misjudgment. It was a case of a brilliant, fragile young man caught in stressful circumstances who decided to take his own life.

    1. Yes, and as depressed as he might have been in years earlier, he still managed to be incredibly productive and not commit suicide. We can never know of course but I don’t think we can dimiss the idea that the upcoming trial and threat of jail were not tiggering events.

    2. MJ — I am glad you said this. It is really common after a suicide for those who have lost someone to say “If not for X” then this wouldn’t have happened and therefore this suicide is my fault/mom’s fault/dad’s fault/spouse’s fault etc. But the horrible truth is that you never really know, even if and when there is a note, because even the person committing the suicide doesn’t have full self-knowledge.

  7. Since I criticised Mark’s use of the “altar” meme on alcohol, let me defend it here. The prosecution does reflect a superstition, a false consciousness zealously promoted by greed. rachelrachel’s comment above makes my point: Schwartz’s action was illegal downloading of published research results, not Hollywood movies. Why on earth should the former be free to universities and not to unaffiliated citizens?

  8. I’ve deliberately held off twenty-four hours to avoid posting things which would get me in trouble (I not being a motherf—ing Wall St firm). HSB just walked away laughing from crimes which would justly send a hundred people to prison for life. Yet the same prosecutors who just don’t seem to find time to go after the Big Boys will go after a schmuck like they were auditioning for the role of Inspector Javert.

    I sincerely hope the people behind this burn in Hell.

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