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Expert Comment: Aaron Swartz, Open Data and the Societies of Control

Circuits Thursday 17 January 2013

Dr David Lundie, Lecturer in the Philosophy of Education at Hope, on the recent death of Open Data pioneer Aaron Swartz.

On Saturday 12th January 2013, RSS and Reddit co-creator and Open Data pioneer Aaron Swartz took his own life in his apartment in Brooklyn, New York. At the time of his death, Swartz was awaiting trial for 13 felony charges including computer fraud in a test-case involving the US Government, the academic publishing database JSTOR, and Massachusetts Institute of Technology – if convicted, he could have faced up to 35 years in prison. Swartz’s friends, family, and diverse members of the internet and communications technology community are mourning the loss of a figure who contributed much, by his work, ideas and direct activism, to the development of our understanding of property, openness and exchange in a networked age.

The details of Swartz’s alleged crime involve the downloading of nearly five million scholarly papers from JSTOR’s online archives, making use of an algorithm to circumvent the database’s user interface and gather data directly from its database. Described by his partner and family as a ‘crime without a victim’ and by digital security expert Alex Stamos as ‘“Inconsiderate”. In the same way it is inconsiderate… to download lots of files on shared wifi’[1]. The complexities of the case involve a plethora of legal protections, largely designed in and for audio communications, for example treating data stored on servers to different legal protections to data travelling through wires and wireless bandwidths.

This case sits at the nexus of debate over the future of access and dissemination in academic journal publishing, and the debate over the meaning of copyright and intellectual property in a networked economy. The growth and success of open access data (such as Wikipedia, where content is free at point of use) and open source software coding (with the Linux operating system running over 90% of the world’s fastest supercomputers), beating off competition from corporate rivals, draws attention to new motivations for production in online networks - what Harvard legal scholar Yochai Benkler calls ‘social production’[2]. Benkler’s model, based on cooperation and social motivation, threatens traditional economic models of productivity. At the same time as these developments make the availability of information cheaper and more instantaneous, traditional structures of for-profit academic publishing have become more rigid, with the average institutional subscription cost for journals in Physics now in excess of $3,600 per year and some elite journals charging as much as $40,000 to university libraries for access to their work. The British Higher Education sector has recently begun a conversation about the role of open access and the funding of research dissemination into the 21st century[3].

Swartz’s untimely death leaves unanswered one of a range of recent test cases, often, as in the case of a woman fined $1.9million for downloading music[4], accompanied by stiff legal penalties, by which traditional copyright holders have sought to delimit the boundaries of open access to their products over the internet. Such cases touch on the relationship between human individuality and creative potential. In his paper ‘Postscript on the Societies of Control[5] Gilles Deleuze contrasts the ‘disciplinary societies’, characterised by enclosed spaces (schools, factories, prisons), which reached their apogee in the 20th century, with the emerging social dynamic. As the structures of control which maintained copyright when intellectual property could be physically delineated (for example, in the form of a CD on a shop shelf) begin to be eroded, the legal apparatus begins to act increasingly in the style of earlier societies of punishment, as outlined by Foucault[6], which, unable to constrain action by enclosure, operate by overwhelming deterrent force. By way of illustrating the web’s capacity to circumvent these structures, within hours of his death, Archive Team, an internet archiving collective, had published the offending algorithm as the Aaron Swartz Memorial JSTOR Liberator. This is not to suggest, however, Deleuze argues, that the emerging ‘societies of control’ are an unalloyed liberating force. These new social dynamics seek to modulate behaviour on an individual basis, through constant targeting of data. By accumulating and aggregating social data, networks are changing and challenging traditional notions of private life as well as private property, changes which give rise to a whole new series of concerns among privacy professionals and moral philosophers[7].

Legal debate continues over the ethics of state action as a protector of the rights of its citizens and the property rights of corporations[8], with Swartz’s legacy only the latest tragic chapter of an ongoing evolution of our understanding of the force and basis of individual freedom under the law.


David Lundie is a Lecturer in the Philosophy of Education. He is a member of the Privacy Ethics research group with colleagues at Cornell University, and contributes to the Centre for Applied Research in Security Innovation (CASI) at Liverpool Hope University.









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