Dear David Byrne,

I generally enjoy reading your blog. Your articles are curious, pleasant, and often quite humorous. However, your latest post “Civil Disobedience” made me actually first try to write a comment (no comments allowed on the David Byrne journal), and then when I couldn’t, tried to find an email address to write to (would comments on blog posts fall under speaking/writing engagements? press inquiries?), and when the email addresses I found seemed insufficient (mail@thewylieagency.com?), googled to see if you were on twitter (not that this would have helped much because I would have had to start a twitter to twat at you with), and finally am now settling on an open letter you’ll probably not read. Either way, this is for you.

You wrote:

I’ve been following the canonization of young Aaron Swartz—the coder, hacker, and digital rights activist—after his recent tragic suicide. For those who haven’t been following this, it seems he illegally hacked his way into an MIT database that contained many, many academic and technical papers and downloaded them onto his hard drive, rather than paying for access.

[…]

Like music and movies that are legally controlled by copyright holders—typically movie studios or record companies—many academic databases contain papers and other material that are proprietary. Institutions or individuals therefore have to subscribe to access them or pay a fee to get to download these papers. LexisNexis is one such academic site in which the material is protected by a pay wall; Swartz downloaded his documents from a similar database called JSTOR. Needless to say, he didn’t pay for them.

JSTOR is not a database maintained by MIT, but a digital library. JSTOR has both scans and digital copies of millions of articles from academic journals. MIT, like most academic institutions, has a subscription to JSTOR and to many other services like it, like ScienceDirect from Reed Elsevier or IEEE Xplore. MIT also has many subscriptions to individual journals. LexisNexis is actually part of Reed Elsevier, and is a service that offers indexed search of legal documents and news articles, content which is actually not ‘proprietary’, but can be tedious to access or search through through free means. They are offering easier access to free information for a fee.

In academia, publishing articles in peer-reviewed journals is imperative for career advancement (publish or perish, as they say). However, the journals generally demand exclusive copyright of the articles, and then require subscriptions to be able to read the content. The choice to make the same articles freely available does not really exist. Some academics circumvent this by posting ‘drafts’ of their papers on their own websites, but this can be cause for revocation of the final drafts of the articles by the journals they try to publish in.

Furthermore, the research that was done that cumulated in these articles was done with funding from agencies like the National Science Foundation or DARPA, meaning they were funded with taxpayer dollars but are not readily available to taxpayers. This is an issue that annoys many academics, but not necessarily enough to stop their current research to address. The annoyance is a further non-issue because the audience for most academic articles is quite narrow, and access to libraries with journal subscriptions is readily available to other academics at universities or research institutes, especially with options like interlibrary loan.

MIT also has an open campus, and with it, open wifi access. Anyone can walk into an MIT building, open a laptop or other device, and get on the MIT network. If you are on the MIT wifi network, you have access to any of the digital libraries mentioned above. Any IP address starting with 18 is located on MIT campus (this is also unfair but that is another story), and any IP address starting with 18 has access to JSTOR. Aaron Swartz, who was otherwise an accomplished technologist, didn’t need to apply any of his ‘hacking skills’ to gain access to this information. He could download articles because he was allowed to.

You wrote: But back to civil disobedience. Swartz stole the material, pure and simple, and he seems to feel that he and others have, in this case, the right to steal because they are beholden to a higher moral standard.

If Aaron Swartz had been tried and found guilty of theft, you could perhaps state this, but in fact, that is not the case. The crux of the issue is that Aaron began downloading articles very quickly, using a simple script. Using scripts to download articles violates the terms of use of JSTOR’s service, but not the law. JSTOR got mad at MIT, and MIT kind of tried to stop Aaron Swartz. The measures they took were very basic and didn’t actually stop him. MIT didn’t feel like changing how their network worked, and instead decided to get the Feds involved in the case with this pesky Aaron Swartz. Together, they installed a camera in the closet where Aaron Swartz had put his laptop. They caught him. He was charged with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. The definition of a “protected computer” was written into law in 1996, and can now basically be interpreted as any computer on the internet.

You wrote: It’s very confusing for me. It’s not like he didn’t know he was doing anything wrong. He hid his laptop and hard drive in a little closet at MIT and hid from security cameras when he went there to retrieve his data trove.

Let me give an illustrative analogy. Aaron Swartz went to a library, and found out you could check out as many books as you wanted. That when you checked out the books, they would give you copies of those books, and it would not prevent anyone else from checking out those books. The copies were free. He started by checking out lots of books. Then he went ahead and tried to check out ALL the books. At that point, the librarian said that he could not check out ALL the books, that it was against library rules. So he went out, put on a fake moustache, can back in and checked out more books. Eventually the librarian got annoyed again and decided to call the FBI, who charged him with identity fraud for pretending to have a moustache, and wanted to throw him in jail for 35 years and fine him a million dollars.

Alex Stamos has written a pretty good analysis of the US vs. Aaron Swartz case: The Truth about Aaron Swartz’s “Crime”.

If Aaron Swartz thought he was doing something wrong, he might have plead guilty and taken the ridiculous plea bargain he was offered. I, however, do not believe downloading journal articles on a open network with a subscription is wrong. I think the charges that the US Department of Justice brought against Aaron Swartz are ridiculous. I expect the government to develop rational and effective policies and laws to protect citizens from crime and terror, not to arbitrarily prosecute citizens, to threaten and bully them with a broken law system, trying to make examples of them, and then expect other citizens to lay low in fear of the justice system.

I am tired of reading articles that act like what Aaron Swartz did was some major hack. That it was obviously immoral theft. That Aaron Swartz was a ‘kid’. That Aaron Swartz was unstable and disturbed. Aaron Swartz was not a crazy-child-evil-criminal-hacker-genius. Aaron Swartz could have been anyone. Just because the majority of the employees at the Department of Justice (and in the MIT administration, for that matter) do not know how to write basic python scripts to automate computer tasks does not mean it constitutes dangerous terrorist behaviour.

David Byrne, I understand that you are 60, which means that you are older than the internet. However, a lot of adults are not. Many stable, voting adults do not remember a time when you could not listen to music streaming on the internet. Were born after IPv4. Have never read a hard copy of an academic journal– in fact many journals do not even publish hard copies any more. The way we access and interact with information has changed and is changing. Copyright law, intellectual property law, electronic communication laws- they are not keeping up. Downloading a digital copy of an article, or a song– it’s not the same thing as stealing a loaf of bread, and if the law keeps treating it that way we are pretty soon all going to be criminals.

Civil disobedience is different too. It’s easier for individuals to quickly reach millions of people on the internet. Digital worlds also grow super quickly, much more quickly than legislation can seem to be written about them. What seems unfair is not that outdated laws exist, but that with enough legal strong arm, large enough entities like governments and large corporations seem to be able to make outdated laws mean whatever they feel like when dealing with ‘kids on the internet’. As a kid on the internet, I have to say that I expect more.

sincerely yours,

Nadya Peek

P.S. I also do not allow comments on my blog. I find that only spam bots ever want to comment. Should you, or anyone else, want to reply, you can find my contact info at the link below.