Some background: Aaron Swartz, tragically, committed suicide at the age of 26. At the time Swartz was under federal indictment for "data theft," after downloading millions of articles from JSTOR via a server at MIT. Swartz -- even in the course of his brief life -- had already become a long-time advocate for open access to scholarly and legal information. He saw his actions regarding JSTOR as a clear moral good in the service of increasing access to information. The argument against Swartz was that he was a brazen thief of copyrighted materials.
In the immediate aftermath of Swartz's death I wrote a post on this blog, "Clarifying Copyright." This was in response to a San Francisco Chronicle feature that offered contrasting takes on the meaning of Swartz's legacy, some of which reflected an incorrect understanding of the purpose of copyright. In my post I noted that copyright law -- which exists as an incentive to the production of creative works, by offering control over that work's distribution "for a limited time" -- was misapplied to scholarly works. Novelists and journalists write (among other reasons) in order to put food on their table -- of course they deserve copyright protection, and of course they should be paid.
The authors of scholarly research articles and books do not write in order to earn a livelihood, as they have sources of income already -- they write so that their ideas and knowledge are shared. For this group copyright actually presents a barrier to sharing their work, rather than acting as an incentive to create that work in the first place. But our notions of copyright are (still) one size fits all.
In this context it is important to note that Aaron Swartz's two prominent "illegal" downloads involved running scripts to perform a bulk download of the transcripts of court trials (the PACER case) and of the results of scholarly research (the JSTOR case). He was not finding a way to ferret out the next great American novel from someone's hard drive and post it online for free.
With that, let's go back to Pesca and Peters. Their conversation (which takes place between minutes 6-23 in the provided link) begins well. Pesca and Peters establish who Swartz was, providing necessary and interesting biographical detail. Then, around minute 11, they start delving into Swartz's ideals and describe his efforts to make it easier to access legal materials (PACER).
Then, at 15:30-15:35, Pesca states, "It's seems he's a bit of a zealot." Pesca goes on to say that surely journalists need to make a living and that, more generally, some types of content should be paid for at the point of sale. Peters, bless him, promptly corrects Pesca: "it's important to make the distinction between journalistic work and academic research papers." This is the exact distinction I outlined just above, between people who are writing to eat and those who are not.
If this crucial nuance is lost on an intelligent observer like Mike Pesca, heaven help us if and when our policymakers decide to review the copyright code.
Pesca's question gave me a sad sense of deja vu. Shortly after Swartz's death, Wesley Yang wrote a detailed profile of Swartz in New York magazine. It's a thoughtful and thorough review of Swartz's legacy. But deep within it we find this troubling paragraph:
"The moralistic language spoken by the Open Access movement—with its invocations of Gandhi, Martin Luther King Jr., and Rosa Parks—may seem slightly perplexing to those of us raised with the common-sense view that works of science, art, and culture circulate in our society through institutions that fund them by charging fees to the public to access them. But the partisans of the open Internet were informed by a different experience and set of ideals than the rest of us, those of a techno-utopia that really existed and has been continuously under siege ever since John Perry Barlow, the former Grateful Dead lyricist turned Internet visionary, co-founded the Electronic Frontier Foundation and declared the independence of cyberspace as a self-regulating realm of perfect freedom beyond the reach of any territorial government’s laws."
There's that claim again -- that Swartz and other open access advocates believe that everything ever written should be free at the moment it is written, and that nobody should ever get paid for anything even if all authors die of starvation as a result.
That's not what Swartz stood for, and that is not what open access is about. Open access assumes that scholars have other sources of income for their livelihoods (generally a university affiliation of some variety), and that they write their work to be read and not to be paywalled.
Swartz broke through a few big paywalls, and found himself in deep trouble because his contemporary values did not accord with antediluvian copyright laws. The best way to honor his legacy now is to make what he was fighting for is as crystal clear as humanly possible, and to keep on pursuing that goal.