Re: <nettime> some more nuanced thoughts on SWARTZ

[t byfield <tbyfield@panix.com>]

dgolumbia@gmail.com (Sat 07/23/11 at 09:52 PM -0400):

> but the questions remain. Did Swartz ask JSTOR for permission? It seems
> likely to me that JSTOR would have been willing (and probably still would be
> willing) to work with a researcher to provide either data or access to data
> to ask the sort of questions he is interested in. I can' find any reference
> to making a standard request to JSTOR of this sort.

And the absence of evidence is evidence of what, please? 

It's possible that JSTOR would have cooperated. However, If I understand 
Swartz's research correctly (and it seems you don't), it seems far more 
likely that JSTOR would have said no. If that had happened, he would've 
faced a much starker choice: either (a) subordinate his research to the 
demands of the rentier interests he was questioning, or (b) do what he 
had *specifically* been forbidden to do. It isn't hard to understand why 
the approach he took seemed the wiser path. You're free to disagree, I 
don't really care, but I do recommend thinking it through a bit first.

> What it appears is that Swartz simply started downloading, knowing he was
> violating the terms of use of JSTOR and MIT. He decided. On his own. That
> the minimal policies protecting intellectual property within the university
> system are not worth respecting, and perhaps not even worth consulting
> officially.

Very little about his activities to date would suggest that he "simply 
started" doing anything. On the contrary, by most accounts he's intensely 
committed to an ongoing critical project and extremely deliberate. So I 
think we can discount that first bit of what you say. And though it may 
come as news to you, there's a long tradition of people doing things "on 
their own," even if it violates not just laws but (gasp!) *policies*. So I 
think we can discount that bit too. 

As for the rest, one needn't be be a full-on freetard to ask whether, how, 
and/or to what extent it's legitimate for a private interest to profit from 
renting out publicly funded work. Maybe one interesting way to approach that
kind of question would be to do some quantitative analysis -- in ways that
could lead away from hyperideological absolutist posturing and toward a more 
specific, empirical understanding of the terrain itself. I wonder how one
could go about doing that...

> That does irk me. Because the only principle Swartz can be said to be
> standing up for, other than libertarian/Ayn Rand principles of "my power,
> i'll do it now, my way, or burn it down" is that an academic deserves access
> to any and all information. Such principles require institutions of even a
> minimal sort to maintain them. I've yet to hear anyone or read anywhere of a
> mass protest or outrage about JSTOR.

That's the only principle you can think of in this context? Seriously?
Actually, I don't believe you; it seems much more likely that you wrote 
some angry, ignorant rubbish earlier and are trying to save face. There
are better ways to do so than plainly silly accusations (that someone 
critical of privatization is a Randite), particularly when that person
is facing the full force of a federal prosecution.

> If Swartz's point is that JSTOR (and by extension all academics and
> libraries) have no right to the products of their intellectual labor, and
> that our rights are so highfalutin that a single individual is within his
> own rights to abrogate JSTOR's entirely, then we really do have a massive
> difference of opinion.

But what if that's not his point? I ask because it isn't.

> there are huge properties in intellectual property law. the ability of
> single researchers to publish and distribute their works is not one of the
> serious ones. there is very little research data not made available widely
> within the relevant research community. most colleges and universities and
> most public libraries allow access, including downloading for private use.
> institutions like libraries and JSTOR are necessary to provide the minimal
> infrastructure necessary to do the research and teaching in the first place.
> most academics distribute their own research free of charge. if we are the
> enemy, who are your friends? and which sides is the war between?

This may be true in the areas that you write about, but it certainly isn't 
true across the board. Take the sciences, for example, where huge amounts 
of data and research is locked away behind fiercely guarded paywalls, where 
downloading for private use would be very risky, etc. You can criticize 
Swartz for working on JSTOR rather than Sage or Elsevier, if you like, but 
that's really just a tactical disagreement.

No one in their right mind thought that a policy violation of this kind --
*particularly* at a school like MIT -- would result in charges that could
lead to 35 years in a federal prison. No one. I don't care how egregious
his TOS violation was; if he was doing it in the course of an academic
inquiry, he might reasonably expect a slap on the wrist, or at worst some
more substantial action like censure. But 35 years in prison is absurd 
and deeply, deeply disturbing.

And, sorry, but the whole enemies and friends thing just isn't working out.

> i'd be a lot more sympathetic if there was a track record of trying to do
> this research officially and being turned down before hacking in to it.
> because without it, this sounds like "doing research through regular
> institutional methods" is the target of attack. maybe it is--but if so, why
> do you expect me to sign on?

Principle, maybe? Or, failing that, pragmatism. You don't need to agree 
with his program or even his actions to wonder whether it's appropriate 
for the federal govt to file criminal charges against an academic for 
pursuing his research in violation of the policies of a few institutions.
But if you're going to weigh in on the subject so ferociously, it'd be 
good to grasp one thing: those very policies are the object of his study.

Cheers,
T


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