The ethics of “stealing” scientific articles and civil disobedience

I have been alerted to the following article in the Boston Globe about a Cambridge[Mass] Man who has been accused of “stealing” 4 million scientific articles.

A Cambridge man [Swartz] who was a fellow at Harvard University’s Edmond J. Safra Center for Ethics is now facing federal charges that he hacked into a Massachusetts Institute of Technology computer archive system to steal more than 4 million articles from scientific journals and academic work.

Swartz has advocated for the elimination of barriers to the distribution of information over the Internet, and for the widest public distribution of information in libraries. He is also a co-founder of

However, the organization [JSTOR, the repository and resupplier of these articles] said that “a substantial portion of our publisher partners’ content was downloaded in an unauthorized fashion using the network at the Massachusetts Institute of Technology, one of our participating institutions.  The content taken was systematically downloaded using an approach designed to avoid detection by our monitoring systems,” the statement said.

I shan’t reprint the whole article – this might infringe copyright. But I want to comment on one statement in it – and then more generally

The articles and journals listed under the JSTOR system are available through a paid subscription, with some subscriptions costing as much as $50,000. A portion of the fee is in turn paid over to copyright holders.

The subscriptions are paid to the PUBLISHERS. (I do not know whether JSTOR receives the full subscription and then relays some or all to the publisher). The publisher collects subscription revenues from JOURNAL subscriptions which may contain articles where the authors have, and have NOT, transferred copyright. In neither case do the AUTHORS receive any payment.

I do not personally advocate criminal damage, and I am currently reasonably scrupulous to avoid deliberately violating copyright law or the contract that my institution has signed with the publishers. I say “reasonably” because the whole area of law and contracts in this area is so complex that there is no human that understands it in all its details (it varies by country and individual institution). I am also conscious that I am employed here and as such my actions can disadvantage my employer. On two previous occasions my actions, perfectly legal actions, have caused the University to be cut off by publishers. Their server algorithms for “stealing” content had been triggered and reacted automatically. (ASIDE – how many of you are aware that the publisher alone decides what is and what is not legitimate usage of their content? They can just cut the institution off).

I believe that our laws and contracts for access to scientific literature need serious revision. I believe that the current situation is unethical and that decisions are made for reasons that do not help science and frequently hinder it. When one believes that laws must be changed, there are two main ways of doing it.

One is to work within the law and put personal and political pressure on the people and organizations involved. That is now what this blog has evolved to – I still do science, but only half of what I could (I did spend this morning writing code to calculate metabolism – but it only makes much sense if I can text-mine the literature – the literature that has been authored by my world colleagues). I campaign through this blog, through the OKF, and elsewhere and I rely on the viral spread of ideas to those who can be infected by them. Fortunately I live in a country which has established a tradition of free speech over centuries.

The other is deliberate breaking of the law. This is what Swartz has done. The Globe article is unclear but I assume he did not intend to benefit personally from his action. He did it to fight for a principle. (It was unclear whether he advertised his actions before or after). It can reasonably be described as

Ronald Dworkin held that there are three types of civil disobedience:

  • “Integrity-based” civil disobedience occurs when a citizen disobeys a law he feels is immoral, as in the case of northerners disobeying the fugitive slave laws by refusing to turn over escaped slaves to authorities.
  • “Justice-based” civil disobedience occurs when a citizen disobeys laws in order to lay claim to some right denied to him, as when blacks illegally protested during the Civil Rights Movement.
  • “Policy-based” civil disobedience occurs when a person breaks the law in order to change a policy (s)he believes is dangerously wrong.[19]

Civil disobedience has a long history in the UK (see )

… following his 1670 arrest with William Meade. Penn was accused of preaching before a gathering in the street, which Penn had deliberately provoked in order to test the validity of the new law against assembly. Penn pleaded for his right to see a copy of the charges laid against him and the laws he had supposedly broken, but the judge (the Lord Mayor of London) refused – even though this right was guaranteed by the law. Furthermore, the judge directed the jury to come to a verdict without hearing the defence.[51]

Despite heavy pressure from the Lord Mayor to convict Penn, the jury returned a verdict of “not guilty”. When invited by the judge to reconsider their verdict and to select a new foreman, they refused and were sent to a cell over several nights to mull over their decision. The Lord Mayor then told the jury, “You shall go together and bring in another verdict, or you shall starve”, and not only had Penn sent to jail in loathsome Newgate Prison (on a charge of contempt of court), but the full jury followed him, and they were additionally fined the equivalent of a year’s wages each.[52][53] The members of the jury, fighting their case from prison in what became known as Bushel’s Case, managed to win the right for all English juries to be free from the control of judges.[54] This case was one of the more important trials that shaped the future concept of American freedom (see jury nullification)[55] and was a victory for the use of the writ of habeas corpus as a means of freeing those unlawfully detained.

There are many other examples where civil disobedience has had similar effects in changing the law and policies.

In this blog post I am not advocating civil disobedience. But I am pointing out that the strains in the system are becoming larger. There is a growing feeling of inequality not only in scholarly publishing but in the more general access to human knowledge. The battle for is critical to our development as a free knowledge-based world community.

I am making predictions, not issuing calls to action. If the feelings of injustices continue to grow I expect that we shall see more of this kind of action. The Net makes it easy to spread ideas, gather support. I am concerned that academic institutions will continue to develop their role as “police for publishers” rather than pressuring for democratic and legal change in the system. I appreciate the difficulties – we grow up in a society where we respect the law and where we are innately bound to work within it. But circumstances change and laws become outdated and counterproductive. Where this is not addressed major fractures are inevitable.

LATER NOTE: Read the comments below as well, which give greater background.

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12 Responses to The ethics of “stealing” scientific articles and civil disobedience

  1. David Gerard says:

    Whatever Swartz’s legal situation, it is unambiguously the case that JSTOR has just become a Problem and must be solved, conclusively.
    Personally, I don’t believe a word of JSTOR’s claims of noninvolvement; they read like second thoughts at realising what it means for them to have become a Problem.
    The open access movement is gaining momentum, but the utter destruction of JSTOR is now absolutely required, as a warning to others.

  2. Ben O'Steen says:

    Aaron Swartz is a very smart cookie – you only have to google around to find he has been publishing in a serious manner since his early teens and played a part in RSS 1.0, RDF, Reddit, as well as lead on the OpenLibrary … I could go on.
    As someone on #code4lib put it, Aaron is one of the few people who could put up a reasonable defence by claiming that he was going to read all 4.7 million items.
    Civil Disobedience seems quite likely. However, it is worth pointing out that the FBI has a grudge against him, as they could not get him for his (IMO excellent) PACER liberation:

  3. Ben O'Steen says:

    The arrest and push on this case has come on behalf of the MIT campus police (who rang it in) and the US Attorney’s Office. While I find the scholarly publishing business model abhorrent, exemplified by JSTOR, JSTOR did say that they had reached an understanding, before the arrest:
    “[Last Fall and Winter… ] We stopped this downloading activity, and the individual responsible, Mr. Swartz, was identified. We secured from Mr. Swartz the content that was taken, and received confirmation that the content was not and would not be used, copied, transferred, or distributed.
    The criminal investigation and today’s indictment of Mr. Swartz has been directed by the United States Attorney’s Office.”

  4. We need to help this hero somehow, IMHO. But how?

  5. Adrian Pohl says:

    See also Kevin Webb’s post on the case at
    He writes:
    I was … reminded of my own attempts at similar work, collecting and analyzing journal articles, patents, and various forms of metadata. I’ve lost count of how many hours I’ve spent sitting in basements of academic buildings, breaking federal laws in the pursuit of answers. And I was reminded of my colleagues who still spend their days painstakingly scraping data off the web–sometimes legally sometimes not–the name of academic inquiry.
    None of us want to break the law. It’s simply that we don’t have a choice.
    The mechanisms for sharing academic discourse are broken. They barely even function as systems for connecting interested parties within existing disciplines. Ask just about anyone who spends their time writing or consuming scholarly work and you will hear a litany of complaints about how poorly suited the academic publishing industry is to modern day collaboration.

  6. Thomas Kluyver says:

    @David: Forgive me if I’ve missed something, but why is JSTOR a problem which must be ‘solved’? Ideally, the digitisation of old journals would be done through sponsorship and made freely available. But in the absence of anyone stepping forward to do that, I’d rather my institution paid for their service than it not existing at all. Things like full text search and DOIs are valuable, and they cost money to prepare.

  7. Ross Mounce says:

    > I believe that our laws and contracts for access to scientific literature need serious revision.
    And as I heard at OKCon 2011 (apologies, I can’t remember who said it):
    “Act first, ask for forgiveness later.”
    I’m definitely for ‘civil disobedience’ as you call it; once disregard for the laws becomes the norm, the laws will surely be compelled to change…?

    • pm286 says:

      Civil disobedience is a precise term. It doesn’t mean breaking the law just because you don’y like it and hoping that everyone else will also break it so it doesn’t matter. This is what News International has done. Yes, they might change the law but in a different direction!
      see CD should not be for immediate gain of goods or other rewards but for principles. The act is deliberate and the actor should be prepared to suffer the law (and often worse) for their beliefs. The principles should be very clear.
      Suffragettes chained to the railings, Gandhis salt march, Martin Luther King are offering civil disobedience. Sending people copies of PDFs is not, unless the action is highly public and done solely for principle and the actor is publicly prepared to suffer the whole weight of the law. Whether it is worthwhile will depend on the circumstances. Martyrdom is not always effective.

        • pm286 says:

          I just saw this.
          Firstly I would be grateful for comment on my analysis
          Whether it is CD depends, IMO, on:
          * is it done in full view of the world and with no subterfuge. Greg Maxwell was originally planning to do this anonymously, which would NOT be CD. There would be an element of not wishing to be punished, even cowardice. True CD must be brave if and when it matters.
          * is it making the point very clearly? Here I think not. The motivatation for the “piracy” is unclear – is he campaigning against copyfraud or is he defending Aaron? or what?
          * is he profiting in any way, other than advancing his cause? Here I think not. It’s not clear what AS wanted. If he gained from his action, then I don’t think it’s CD
          I might blog about this tomorrow. or later.

  8. Nick Dougan says:

    Hi Peter,
    Interesting article and case. As a recent returner to academic study myself, I’ve had some frustrations at finding academic papers using the JSTOR database, so I take my hat off to the technical skills of anyone who can download the whole thing in one go. With an interest in the science of climate change, moreover, I’ve definitely come to the view that there would be great benefits if much publically funded science were put into the public domain as a matter of principle so that the facts behind various hypotheses might be tested more easily.
    On the other hand, I recognise the fact that much intellectual property would never have been developed in the first place had it not been for a commercial purpose – indeed, I’ve worked in the intellectual property law field for some years. JSTOR is a not-for profit organisation, and charges subscriptions (mostly to universities) in order to cover its costs. So let me ask: would these 4,700 papers have been scanned and made available at all had there not been some way of recouping costs? How would you – or Mr Swartz – have liked to see it done it? Are there, in your view, any legitimate intellectual property rights?

    • pm286 says:

      Thanks Nick,
      I may blog your comment later. For now:
      * I do not condone Swartz’s actions as the motive was unclear. I supported the petition because I felt that the Federal Government has severely overreacted
      * I support cost-recovery for work put it and this applies to JSTOR. However many services which used to create value are now raising revenue simply by gatekeeping and providing poor value for money. I don’t know the details of JSTOR
      * My main concern is with the 50 million of more articles authored by academia and GIVEN to publishers who charge totally unrealistic amounts of money. 40 USD for 1 day’s view for a 2 page paper is outrageous. Nature has said it costs 20,000 GBP to publish a paper – again quite unrealistic. A figure in the range 500-2000 USD per paper seems to be acceptable for Open Access Gratis authorside payment.

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