If the allegations were true, Aaron Swartz was guilty of breaking and entering into the premises of MIT, which, as a premier science and engineering university, has immensely valuable confidential intellectual property on campus. He then created a false user account to tap into MIT’s information systems with the goal of stealing JSTOR’s scholarly articles database and posting to it free filesharing sites. If Swartz, who downloaded 4.8 million documents before he was caught, had succeeded in making JSTOR’s database public, he could have put it out of business and its employees out of work. Nor would MIT’s eminence last long if anyone with the right hacking skills could freely make off with the work of its researchers.
Swartz — ironically a fellow at Harvard University’s Edmond J. Safra Center for Ethics — didn’t care about the damage, arguing in an online manifesto, “[S]haring isn’t immoral — it’s a moral imperative. Only those blinded by greed would refuse to let a friend make a copy.” He exemplified New York Times media reporter David Carr’s observation, “It is an article of faith among the digitally inclined that only losers pay for – or try to charge for – content. . . . But here’s the problem with religion, even the digitally charged variety: it provides succor, but not sustenance. ”
It costs money to develop and deliver intellectual property, and JSTOR’s massive and ever-expanding database — widely accessible to academic researchers through universities and to the general public through public libraries — benefits society. JSTOR needs to scan and clean up documents, run database servers, and pay its staff — one current project is to digitize 26,000 19th century UK pamphlets, a key historical source that had been virtually inaccessible. A subscription model is one of the few ways to pay for this. JSTOR keeps its fees fairly modest, with particular attention to affordability by public libraries, secondary schools, and developing nations, and is now making limited content available free.
Harvard’s Lawrence Lessig — one of Swartz’s staunchest defenders — nonetheless makes readers pay for e-reader versions of his books on Amazon. And Swartz himself saw fit to take money for intellectual property when he sold his startup, Infogami, to Reddit.
Despite heated denunciations of the potential 35-year prison sentence and $1 million penalty for Swartz’ alleged violations of the Computer Fraud and Abuse Act, it does not appear that prosecutors overcharged him for accessing a computer system without authorization. Since, under US double jeopardy law, they only get one opportunity to try someone criminally, the initial charge always includes the kitchen sink.
Prosecutors indicated that they would only seek a seven year term at trial, and offered Swartz a six- to eight-month sentence if he pled guilty (with the possibility of serving some of it in a halfway house). This was a more than reasonable plea deal for someone trying to destroy a research database organization of worldwide importance — even if some people think hacktivists are cool.