Fight for Open Access

Darren mail at
Tue Jan 15 02:18:32 GMT 2013

[One thing that bothers me is that nobody appears to be suggesting Aaron may have been 'suicided', after all it was looking as if the US Government might well lose the case - Ed.]

Glyn Moody

As you may have noticed, this weekend the online world has been filled
with news of and responses to the suicide of the young American activist
Aaron Swartz. Many excellent personal tributes have been written about
the man and his achievements, but here I want to concentrate on the just
one aspect: the incident that led to his arrest and probably to his
suicide too. Here's how Techdirt explained the situation:

Swartz, the executive director of Demand Progress, was charged with
violating the Computer Fraud and Abuse Act, a catch-all designation for
"computer activity the US government doesn't like."

Swartz had accessed MIT's computer network to download a large number of
files from JSTOR, a non-profit that hosts academic journal articles. US
prosecutors claimed he "stole" several thousand files, but considering
MIT offered this access for free on campus (and the files being
digital), it's pretty tough to square his massive downloading with any
idea of "theft."

Not only that, but JSTOR was not the entity pressing charges. It had
stopped the downloading and secured the "stolen" content, along with
receiving assurances from Swartz that the files would not be
distributed. Despite this, the feds felt compelled to arrest Swartz and
charge him with four felony counts (one each for Wire Fraud, Computer
Fraud, Theft of Information from a Computer and Recklessly Damaging a
Computer). At this point, Swartz was looking at a possible 35-year
sentence and over $1,000,000 in fines.

As you can see, this touches on the old nonsense about people "stealing"
digital content. That's factually and legally incorrect, of course: you
can't steal things by making copies of them: at most, it's copyright
infringement. But the situation here is far worse. For the files that he
was accused of copying were not mp3s, or the latest cinematic
blockbuster; they were academic articles stored on MIT's computer network.

That is, they were writings whose main purpose is to pass on knowledge
to others, so that they could learn from them and build on them before
contributing their own work to the knowledge commons. Moreover, they
were stored on the network of an institution whose central tasks are the
creation and transmission of knowledge.

It is therefore absurd in the highest degree that Swartz was not only
arrested for merely making copies (he didn't pass them on anywhere), but
potentially faced several decades in prison for doing so. As many people
have noted (and probably many more realised) this sums up why the
current copyright system is not just dysfunctional, but fundamentally
unjust: it actively stops people sharing knowledge through threats of
this kind.

Worse, the truly disproportionate punishments that have been brought in
recently have created a Kafkaesque situation where people can face many
years in prison for sharing copies of digital files containing knowledge
that has been created with the express purpose of being shared.

Swartz lived trying to free knowledge in various ways, as the tributes
linked above detail. Unfortunately he also died trying to free knowledge
thanks to the vindictive decision of the US authorities to make an
example of him to scare the rest of us into acquiescing to the copyright
industry's attempts to lock down knowledge.

There is an important opportunity this week to support the movement to
make research more freely available, of which Swartz was a part: open
access. It's been around for many years - here's an article I wrote back
in 2006 noting the parallels with open source. Since then, open access
has gone from strength to strength, culminating in the UK government
announcing in November that it would make available £10 million
specifically to fund open access publication of research. [Update:
Hadley Beeman has kindly added some more background to the latest UK
government moves - please see the comment at the end of this post for
some important links.]

So open access has won in the UK, you might think. And so did I, more or
less, until this turned up last week:

The House of Lords Science and Technology Committee will next week hold
its first evidence session in a new short inquiry into the Government?s
open access policy and its implementation by the Research Councils UK
(RCUK) (the partnership of the UK?s seven research councils).

So what? you might think - surely just a sign that open access has
arrived, and their Lord and Ladyships wish to acquaint themselves with
it. Well, maybe, maybe not, given two details. First, the issues they
are considering:

This short inquiry will consider:

support for universities through funds to cover article processing charges;

embargo periods for articles published under open access;

engagement with publishers, universities learned societies and other
stakeholders in developing the new open access policies; and

how the Government should address the concerns raised by the scientific
and publishing communities about the policy.

The last question is the key one. The world of scientific publishing
hates open access as much as Microsoft hates open source, and has been
lobbying equally hard to stop its rise in the UK. That last question
looks suspiciously like the real reason this consultation is being held
at all - and one whose answer has already been decided, in favour of the
"concerns". And if you think I'm reading too much into things, the other
killer fact about this enquiry, announced last week, is found at the end
of this, taken from the "guidance on submission" [.pdf]:

Written submissions should be provided to the Committee as a Microsoft
Word document and sent by e-mail to hlscience at Please do
not submit PDFs (if you do not have access to Microsoft Word you may
submit in another editable electronic form). If you do not have access
to a computer you may submit a paper copy to Chris Atkinson, Clerk to
the Science and Technology Committee, Committee Office, House of Lords,
London SW1A 0PW, fax 020 7219 4931. The deadline for written evidence is
18 January 2013.

That is, only one week is being given for people to write and send in
their submissions - ridiculously brief. It's hard not to see this as an
attempt to push through this "consultation" in the shortest time
possible, so as to allow the desired result to emerge from the other end
with as few distracting opinions being expressed as possible. I
therefore urge you to make a submission this week to show that many of
us do want open access being put into operation in the UK - and that we
are watching out for any attempts to put obstacles in its way.

As regular readers will know, I normally publish my own submissions to
these kind of things, but another facet of this one is the following
paragraph in the guidance notes:

Submissions become the property of the Committee which will decide
whether to accept them as evidence. Evidence may be published by the
Committee at any stage. It will normally appear on the Committee?s
website and will be deposited in the Parliamentary Archives. Once you
have received acknowledgement that your submission has been accepted as
evidence, you may publicise or publish it yourself, but in doing so you
must indicate that it was prepared for the Committee. If you publish
your evidence separately, you should be aware that you will be legally
responsible for its content.

Hilarious, no? You can tell their lord and ladyships are not too used to
this openness stuff. So, against that background, here are some thoughts
on the issues being explored, rather than my submission verbatim.

Academic articles paid for by the taxpayers should be released as open
access immediately, with no embargo period. After all, if the logic is
that we have paid for the research, and therefore should be able to see
its results, there is no reason why an artificial embargo period should
be imposed. Either we paid or we didn't; if we did, publish immediately.

Similarly, the "concerns raised by the scientific and publishing
communities about the policy" are just companies whining because they
have lost their remunerative monopolies. Academic papers are written by
researchers for free, submitted to editors who consider them (for free)
and then pass them out to be refereed by yet more researchers, also for
free. The only contribution scientific publishers make is some editing -
hardly enough to warrant the 30% profit margins some have notched up for
years. Having enjoyed this licence to print money from the work of
others paid for by the public, they have zero rights to object when
taxpayers dare to ask to see that research without paying for it again,
through the nose (per article fees are often £20 or more.)

I may re-word this slightly, but you get the general drift. Basically,
open access is an idea that has not only come, but which should have
been put in place years ago. The Parliamentary Committee must make clear
to academic publishers that the days of huge profits and fat-cat
salaries for senior executives are over, and that they need to come up
with ways of thriving in a world where digital content is freely
available, just like everyone else.

More information about the Diggers350 mailing list