A Librarian Looks at the JSTOR Download Case

on July 22, 2011
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A Tweet by Nilay Patel (@reckless) of Verge called my attention to an intelligent post giving a librarian’s perspective on the charges against Demand Progress’ Aaron Swartz. Swartz faces federal felony charges for allegedly using unauthorized access to the MIT network and the JSTOR academic journal archive to download millions of articles.

Nancy Sims, copyright librarian at the University of Minnesota Libraries, dispels what have become some common misconceptions about the case. First, she points out, there are no copyright charges involved. And she notes that all databases such as JSTOR have restrictions on downloads and that the violations alleged in this case are pretty straightforward.

One place where I disagree with Sims is that she, like many others, compares the case to that of Lori Drew, a woman who was prosecuted for computer fraud for bullying a young teen in violation of MySpace terms of service. Drew was convicted, but an appeals court later threw out the case.

A key difference (besides that fact that no individuals suffered direct or indirect harm in the JSTOR case while Drew’s actions may have contributed to the target’s suicide) is that the actions laid out in the indictment show a pattern of willful assault on the MIT network and the JSTOR database. It is by no means a simple case, as Swartz’ defenders have claimed, of “downloading too many articles” or even violating MIT or JSTOR terms of service.

One other point: Sims, along with many others, questions the proportionality of the government charging multiple felonies carrying a theoretical prison term of up to 35 years. Prosecutors customarily throw everything they have into an indictment. I’d be very surprised if this case does not end in a plea bargain with no jail time.