The Guerilla Open Access Manifesto

by Aaron Swartz

[Was this what drove Carmen Ortiz nutz? -fp-]

“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. 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.

There are those struggling to change this. The Open Access Movement has fought valiantly to ensure that scientists do not sign their copyrights away but instead ensure their work is published on the Internet, under terms that allow anyone to access it. But even under the best scenarios, their work will only apply to things published in the future. Everything up until now will have been lost.

That is too high a price to pay. Forcing academics to pay money to read the work of their colleagues? Scanning entire libraries but only allowing the folks at Google to read them? Providing scientific articles to those at elite universities in the First World, but not to children in the Global South? It’s outrageous and unacceptable.

“I agree,” many say, “but what can we do? The companies hold the copyrights, they make enormous amounts of money by charging for access, and it’s perfectly legal — there’s nothing we can do to stop them.” But there is something we can, something that’s already being done: we can fight back.

Those with access to these resources — students, librarians, scientists — you have been given a privilege. 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.

Meanwhile, those who have been locked out are not standing idly by. You have been sneaking through holes and climbing over fences, liberating the information locked up by the publishers and sharing them with your friends.

But all of this action goes on in the dark, hidden underground. It’s called stealing or piracy, as if sharing a wealth of knowledge were the moral equivalent of plundering a ship and murdering its crew. But sharing isn’t immoral — it’s a moral imperative. Only those blinded by greed would refuse to let a friend make a copy.

Large corporations, of course, are blinded by greed. 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.

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.

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.

With enough of us, around the world, we’ll not just send a strong message opposing the privatization of knowledge — we’ll make it a thing of the past. Will you join us?”

Prosecutorial excess

If  Aaron Swartz’ intended to become a martyr with his suicide, he may have been successful. I suspect he chose to die simply because he couldn’t face living, and that his martyrdom was unintentional. A number of advocates for a number of causes are turning the tragedy into what they hope will be a triumph in their struggles for change. Aaron’s story is being written as a lesson about the justice system, and of course there are lessons to be learned here. But the reason he ran afoul of the law, the specific acts he performed that related to information freedom and the commons, the copyright practices that restrict access to scholarly work and inflate the costs of education–these things are being lost in the political narrative that’s emerging. Before we look at the issue of prosecutorial excess, let’s remind ourselves of Aaron’s commitment to the Freedom to Connect and some of the complexities of the intellectual property problems that helped to drag him down. Here’s Andrea Seabrook’s report…

The federal prosecutor dropped the charges against Aaron the day before his funeral. (Does that count as a tie in her Won/Lost statistics?) The gesture was lost on Aaron’s family, who said Aaron’s death “…is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims.” It seemed clear to the family and many of his friends that the prosecutor had over-reached in Aaron’s case, had in fact driven him to suicide. No less a legal light than Larry Lessig, normally mild and even tempered, weighed in with harsh criticism. Aaron, Lessig wrote,

…was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying. 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.

For remember, we live in a world where the architects of the financial crisis regularly dine at the White House — and where even those brought to “justice” never even have to admit any wrongdoing, let alone be labeled “felons.”

The American criminal justice system is worse than imperfect. It is adversarial, each case a trial by combat, defense attorneys and prosecutors jousting before a judge and–infrequently–a jury who will determine the victor. Elaborate criminal codes, precedents, and judicial rules and guidelines describe the boundaries within which the serious game is played. Many, perhaps most, lawyers will agree that the US Attorney’s Office dealt properly with Aaron. Orin Kerr, writing at The Volokh Conspiracy offers a detailed two part post about The Crimimal Charges Against Aaron Swartz.

In Part One, The Law, he concludes that “…the charges against Swartz were based on a fair reading of the law. None of the charges involved aggressive readings of the law or any apparent prosecutorial overreach. All of the charges were based on established caselaw. Indeed, once the decision to charge the case had been made, the charges brought here were pretty much what any good federal prosecutor would have charged.”

In Part Two, Prosecutorial Discretion, Kerr writes, “I think that some kind of criminal punishment was appropriate in this case. Swartz had announced his commitment to violating the law as a moral imperative in order to effectively nullify existing federal laws on access to information. When someone engages in civil disobedience and intentionally violates a criminal law to achieve such an anti-democratic policy goal through unlawful means — and when there are indications in both words and deeds that he will continue to do so — it is proper for the criminal law to impose a punishment under the law that the individual intentionally violated. (Indeed, usually that is the point of civil disobedience: The entire point is to be punished to draw attention to the law that is deemed unjust.)”

Kerr addresses a range of legal questions and issues and I find it hard to disagree with him. But, there seems to be a meaningful issue that the best legal minds avoid. How fair was the prosecutor in the way she played the game? It’s not a question that we often consider. Are prosecutors required to play fair? We have judges and referees to keep both sides in line. But Aaron had a point to make. In order to make his point he needed to have a fair hearing. To get a fair hearing for his victimless crime, he was asked to risk thirty-five years of his life and be branded a felon. The prosecutor offered Aaron a choice. She was willing to drop Aaron’s risk of incarceration to a mere six months, to accept a plea bargain. Aaron could brand himself a felon by pleading guilty, and he would have been denied any hearing whatsoever. In the context of the prosecutor’s daily work, this may have seemed fair, but I think the prosecutor’s balls to the wall approach effectively denied Aaron Swartz a hearing and therefore it denied him justice, and that depressing circumstance cost him his life.