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Op-Ed: We Need More Aaron Swartz-Style Hacktivism


This is TALK OF THE NATION. I'm Neal Conan.

And now the Opinion Page. The release of millions of academic papers by Internet activist Aaron Swartz raised many questions about how much access the public should have to scholarship, questions that took on new dimensions after his suicide. At the time of his death, Swartz faced federal charges of wire fraud and violations of the Computer Fraud and Abuse Act.

In The Chronicle of Higher Education, Peter Ludlow argues Aaron Swartz was right, not only justified in his act of civil disobedience, but morally impelled to act. We want to hear from those of you in academic publishing, what's the legacy of Aaron Swartz? 800-989-8255. Email: talk@npr.org. You can also join the conversation on our website. That's at npr.org, click on TALK OF THE NATION.

Peter Ludlow is a professor of philosophy in Northwestern University. His commentary "Aaron Swartz Was Right" ran in The Chronicle of Higher Ed on February 25. He joins us now from member station WBEZ in Chicago. Good to have you with us today.

PETER LUDLOW: Hi. Good afternoon.

CONAN: And you write that the consensus, so far, is that Swartz did something wrong. And, well, he himself called it an act of civil disobedience. Don't people who commit act of civil disobedience expect some - well, there are some risks associated with that.

LUDLOW: There certainly are. When you commit an act of civil disobedience, you're doing something that is technically against the law, but you believe it's the right thing to do. For example, Rosa Parks knew that it was against the law to sit in the front of the bus, but she did so anyway. And that's basically the structure of acts of civil disobedience.

CONAN: Yet, you accept that there's a possibility you could end up facing charges for this.

LUDLOW: You certainly do.

CONAN: And the civil act that he committed, you say, was justified by the, well, peculiar structure of academic publishing.

LUDLOW: Yeah. There are actually two things going on here. One is the issue of academic publishing, the structure of it and how knowledge is locked up by academic publishers. And then there's another thing which you're somewhat alluding to earlier when you talk about, you know, he should have expected some sort of punishment for what he did. And that other thing goes to the Computer Fraud and Abuse Act, which lays out these draconian penalties for unauthorized access of a computer system. And so there are really two things going on in all of this. One has to do with the story about academic publishing, and the other thing has to do with this Computer Fraud and Abuse Act, and both are incredibly serious issues.

CONAN: Well, let us start with the academic publishing issue then, first. And...

LUDLOW: Sounds fair.

CONAN: All right. And your argument, essentially, that this has been stood on its head, a system that was designed to disseminate information instead bottles it up.

LUDLOW: That's exactly right. If you think about what academic publishers used to do is that they could provide a service that nobody else could provide. That is, they could produce information. They could typeset papers, scientific papers, mathematical papers, and so forth, in a way that nobody else really could do because, you know, a century ago, we're writing these things, you know, with pencil or pen. And they could not only typeset them, but they could publish the - and they could distribute them. And so it played this really invaluable service of taking information that otherwise might just be circulated among a very small group, and distribute it worldwide.

But now, it's performing exactly the opposite function. Instead of helping us to distribute information, it's using a certain kind of rights that it's acquired. And it's using that to bottle up information and demand for fees for that information when there are much more efficient ways to distribute information and academic publishing - academic ideas these days.

CONAN: Well, one of the problems you cite is that very few papers actually do get published, five percent you estimate.

LUDLOW: Well, that's - if you would take a particular top-level philosophy journal, their acceptance rate is around five percent. So presumably, those papers get published elsewhere, but perhaps not a journal that's as prestigious.

And the problem is that if you're a junior professor somewhere, let's say you're a junior professor in philosophy, you need to publish or perish. That means you don't have tenure yet. You're going to need to show up with, you know, six, seven, eight, maybe 10 solid publications in order to get tenure, or you're out the door. And you submit your papers to these journals.

They have a 5 percent acceptance rate and they are not - they are going to, basically, have you sign over the right to that publication. That is, a junior professor is going to be at a very unfair bargaining position, where they're going to give up the rights to their own intellectual product to this publishing company simply because, you know, they're in an impossible situation. They have to publish. They don't have many opportunities, and the publishing company holds all the power.

CONAN: So they've got 'em over a barrel and, of course, they're going to, given those stakes, sign away their right.

LUDLOW: Sure. I mean, I did it when I was young.


LUDLOW: I needed, I needed tenure. I signed away my rights. And I think for most publications and most fields in academia, the scholars do end up signing away their rights.

CONAN: And then you have the situation then to get access to those papers, subsequently, those publishers demand fees, and this is often for research that's been funded by, well, federal money.

LUDLOW: It could be funded by the NEH or the NSF. It might be funded by your tuition dollars or by state - money that a state contributes to the state university. And often, the research is the product of public funding. But the public doesn't have access to that information unless it finds some route to it by being a student in a university or professor in the university or via some other, not necessarily so obvious, route of access to the information.

CONAN: Now, there are various regulations, laws, written to protect, effectively, monopoly of these publishers.

LUDLOW: Well, there have been attempts. There was a law that was written a couple of years ago that was sponsored by Elsevier Publishing. And they made contributions to several members of Congress and they finally got someone in Congress to write a law that would basically prohibit the free distribution of research that had been done by federal funds if it was held at a copyright with one of these publishing houses. So, it was basically, they are looking for legal ways to bolster their position. But they don't necessarily need new laws to do it. I mean, they can just fall back on basic copyright law, and they can, you know, they do hold a copyright, and they will be litigious about it if they need to be.

CONAN: You wrote in your paper, in the Chronicle of Higher Education, that an outcry effectively killed that proposed law. So apparently, protest is successful, at least in some cases.

LUDLOW: Oh, it can be successful, yes. We hope.

CONAN: And that brings us to the other aspect of this, the severity of the charges that were brought against Aaron Swartz.

LUDLOW: Right. I think it would have been reasonable for him to expect something. There was - technically, he did trespass at MIT. He did download these files. But in the introduction, I think you said that he distributed these academic papers. But to the best of my knowledge, he never did that. He just downloaded them and then returned them in effect to JSTOR.

The severity of the charge, though, stems from this Computer Fraud and Abuse Act which several prosecutors, and in particular, Eric Holder has been behind this, as far as I can tell.

CONAN: The attorney general.

LUDLOW: The idea has been that you can think of a violation of a terms of service with a computer company as being a misuse of a computer, or using computer services for purposes for which they're not intended.

So we have this very, very old law that says if you do something that is sort of against the original intent of the computer system, then you are committing a felony. And what that means, in this case - if you take this seriously, if you consider the Justice Department's position and take it seriously - is that if you go on an online dating site and you lie about something, you are committing a felony because you have violated the terms of service of that dating site.

And if you - in a certain sense, if you think about all the little times you've sort of clicked I agree to the terms of service for a computer service that you used or some sort of website that you accessed, I would say there's a very good chance that everybody listening to this program right now has violated the terms of service of an agreement somewhere, which means that if you believe the Justice Department narrative on this, everyone listening to this program is technically a felon.

CONAN: Yes. But this is different from a deliberate act of civil disobedience.

LUDLOW: It's the same prosecutorial issue, though, that basically...

CONAN: I hear the logic there. But it's not - the act is not quite the same. The intent was not the same.

LUDLOW: Well, let's see. I agree with you the - in the following, that he did intentionally violate the terms of service in this particular case and he did intentionally trespass because it was intended as an act of civil disobedience, which as opposed to something that's trying to do on the sly or whatever. It was - there was a - I guess, you could say there's an element of theater to an act of civil disobedience, in which you make it very explicit that you are intentionally violating the law, or the rule in this case.

CONAN: Sticking your finger in their eye.

LUDLOW: A little. Yeah, that's a good way to think about it. Yes.

CONAN: Our guest is Peter Ludlow, professor of philosophy at Northwestern University. His piece "Aaron Swartz Was Right" ran in the journal - Chronicle of Higher Education on February 25th. You're listening to TALK OF THE NATION from NPR News.

Suzie's on the line calling us from Columbus in Ohio.

SUZIE: Hi. Thanks very much, Neal. And I totally agree with Professor Ludlow and want to say thank you. I think what was done to Aaron Swartz is a terrible injustice. I wrote many things that were published for free and I think it's awful that these companies, merely by putting them on the Web, think that they now own the rights. And I think that Aaron Swartz's legacy is to stand up for free access to information that should be free and that was publicly subsidized as well as being donated labor for all of us professors.

And I am so disillusioned that the Obama Justice Department would have brought charges that made him face 35 to 50 years in prison for doing simply what is right. And, you know, Neal, I'm even disappointed because I think that your devil's advocate questions are keeping us from exploring the true injustice that was done here. And so I do want to say thank you for having this topic. But, you know, that we really need to focus on the fact that we have lost a brilliant mind because of a terrible injustice. So thanks, Professor Ludlow.

CONAN: Suzie, thanks very much for the call.

SUZIE: Thank you, Neal. Bye-bye.

CONAN: I did want to ask, Peter Ludlow, one aspect of this. If - as you say, there's no - you can't go to another version of the theory of relativity. You need to go to Mr. Einstein. So would he get royalties if those papers are downloaded? Would authors like Suzie get money from - flowing from their downloads?

LUDLOW: For the most part, academic papers, there are no royalties for those. I've never received a royalty check for any of my papers. And, in fact, in cases where I wanted to reprint one of my papers, I've actually had to pay a publisher for the right to reprint some of my work in a collected volume, for example. So the stranglehold happens in many cases. In several instances I've had to put together volumes - readers for courses, for example. And in those cases, I typically have to pay around $10,000 to the publishers for rights to include material. And for the most part, as far as I know, none of that money flows through to the original authors, and it certainly doesn't flow through to me.

CONAN: Let's go next to Phil, and Phil's on the line with us from Cincinnati.

PHIL: Thank you, Neal. Yeah, I'm currently getting my master's in environmental history. And I think there's two important takeaways from this conversation about Aaron Swartz's legacy. In the first one, Dr. Ludlow and your last caller, Suzie, hinted at, which is that, you know, this is publicly financed information that we as the public are putting forward. And so, you know, we as the public have a right to that information.

And I think this is specifically relevant with the issue of climate change because there's so much information floating out there on this that the public has financed this to a great degree. And the public has a right to know that information because it affects us so severely. So the big takeaway that I think Aaron Swartz understood is that, you know, the academic's duty is to society. And so, you know, that should be reflected in these copyright laws and the policies of these journals.

CONAN: The academic's duty is to society. Peter Ludlow, does that suggest that if there was a moral impulse for Aaron Swartz to act, there is a moral impulse for others to act?

LUDLOW: You bet there is. And in particular for academics, and I think we as academics need to seriously sit down and think about our current policy of demanding students publish in these journals that are often published by for-profit companies, journals that don't give the rights for - don't give the copyrights to the original authors. I think we need to explore alternatives in the form of open access journals that would be available free to anybody on the Web. And I think this is doable. There are workable ways to accomplish this.

The problem is that there's a lot of inertia in academia and academics, as a rule, don't like change as much as they're often thought to. And it requires some change in habits, you know, when you start thinking, well, the top five journals in my area, maybe I shouldn't expect, you know, maybe I shouldn't demand that people publish in these top five journals in order to get tenure. Maybe I should start developing alternative open access journals and maybe I should show some more respect for open access journals when junior people do publish in those kinds of journals.

CONAN: Phil, thanks very much for the call.

PHIL: Thank you, Neal.

CONAN: And our thanks to Peter Ludlow, professor of philosophy at Northwestern University. Thanks very much for your time, today.

LUDLOW: Oh, thank you.

CONAN: And Peter Ludlow joined us from WBEZ in Chicago. Tomorrow, what's going on in coal country as regulations restrict the domestic market, but sales do pretty well overseas. It's the TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright NPR.

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