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Thursday, January 17, 2013

Swartz's Legacy: Public Goods and Private Profits

Aaron Swartz courtesy London Guardian
en Eenhaundel 

 Of increasing concern to the Internet Generations has been the conflict between the rights of the individual and protection of the public or communal good against the means and goals of private enterprise (a wealthy few) to benefit from manipulation of the individual and exploitation of public resources.  Far from being a new fad or youthful preoccupation, this is merely the latest battle between privilege and the profit of the few against the common rights and dignity of the individual and recognition of the shared access to and interest in the common good.  The only difference between the Internet cultural conflicts of the early 21st Century and struggles against religious oppression and royal prerogative in the 16th and 17th Centuries, and between the individual and Big Business in the 19th and 20th Centuries  is the public resource over which the battles are being fought.
    Reminiscent of former struggles against Borgia Popes or against the censors of l’ancien regime, the last two months have witnessed seemingly excessive efforts on the part of United States Feds to exert the full might, power and authority of their government against the lives and ideals of two rather ordinary young men on behalf of American Big Business interests in the media, culture and formal economy.  These youth represent a sort of Robin Hood versus the ‘Man’ in the complicated but lucrative world of the modern Internet.  Both stories have, however, come to rather different conclusions – one malféant being forgiven and the other hopelessly determining to end an extremely promising and rather gifted life in suicide.

    Questions abound regarding the motivations behind the youths’ actions and the pressures brought to bear against their relatively minor infractions of commercial law and crimes of conscience – a situation familiar to Anabaptists and Mennonites who have often found themselves challenging the abuse of state power against the authority of the individual conscience, the ability of a wealthy few to enlist the common person into fighting wars for economic and imperial dominance, the ability to read without censors, to worship in one’s own language, to worship without coercion and so-on and so-on.
    As ethnic Anabaptists, our culture is based on the basic premise that all persons are equal before God and each other has the right, ability and equal access to the necessary resources for preserving and realizing the reality and responsibility of that equality.  In this, Aaron Swartz and Richard O’Dwyer are merely the Postmodern expression of our own Radical Reformation which challenged and closed the Medieval Age of privilege and Inquisition.

Richard O'Dwyer Photo courtesy of
        O’Dwyer’s story is relatively straight forward.  In 2007, at the age of 19, he came up with a brilliant idea and started an Internet site called through which users could link to television programs and films for free (think the early – establishing or helping to build the model for later successful commercial sites such as and Hulu’s new commercialized identity.  In exchange, O’Dwyer is purported to have made a total of $230,000.00 in illegal advertising royalties over four years or the equivalent of 2.6 seconds of advertising during the 2013 United States Super Bowl broadcast.  O’Dwyer was arrested in Britain on American insistence in 2010 and his site was shut down.  UK authorities investigated the crime and found no reason to hold him, but American business interests demanded that he be extradited to the United States for trial, facing a possible 10-year prison sentence. 
    Massive political support in the UK called for non-compliance.  O’Dwyer had broken no laws in the UK and had cooperated in shutting down the site.  For many, this was a case of what Americans call “prosecutorial overreach” and what many in Britain, including Wikipedia founder, Jimmy Wales, seem to feel was an example of imperious American business interests attempting to force UK sovereignty and compliance to their will.  Wales called O’Dwyer the “the human face of a global battle over the interests of the film and TV industries and the wider public.”  The Guardian reported a YouGov poll revealing that only 9% of the British public favored O’Dwyer’s extradition to the United States.
    Many, including O’Dwyer, seemed to think that the American media giants, having failed to win gruesomely one-sided legislation (SOPA) in favor of copy right owners over users in the United States’ Congress, were attempting to preserve an increasingly outdated and failing economic model through the might of the United States’ courts.  The Guardian quotes O’Dwyer, “I think they’re trying to use my website as a sort of guinea pig to try to scare everyone else making linking websites.”
    On 28 November, 2012, O’Dwyer reached a negotiated deal where he was merely forced to eat some humble pie by coming to the United States and paying a small fee for his copyright infringement.

    Swartz, an American citizen, was already in trouble in the United States for having downloaded and distributed for-pay public court documents on the web for free, challenging what he felt was the injustice of having to pay a private company for a public good generated by the public dollar.  Seemingly, he felt similarly regarding the question of justice and access relating to JSTOR whose contributors received no pay for use of their papers, many of which were generated at public expense or at least heavily subsidized by public grants and funding through the American university system.  JSTOR was profiting at the expense of others while charging exorbitant rates for access to this pseudo-public information.
Aaron Swartz in Miami Beach courtesy
    Swartz now has my full attention.  In the United States, we have a tradition of public lending libraries that predates our democratic republic.  This tradition of making information freely or at least inexpensively available to the public via libraries was begun by Benjamin Franklin in Philadelphia and spread across the nation through the later generosity of big business tycoons such as the Hearst and Carnegie families.  Further efforts were expounded to bring access to these printed riches into all corners of all cities and rural areas through book mobiles, minimum requirements for school libraries and other means of improved access.  My own family contributed when A.J. Wall, then Valley County Superintendent of Public Schools in Montana, mandated that all students within the county have equal access to the city of Glasgow’s county-subsidized public library, bringing access to American public knowledge resources to rural, isolated communities of Native Americans, descendants of dry-dirt Norwegian farmers and my own Mennonite communities. 
    Once, a child or any other citizen would have been able to access the latest academic information on almost any advanced topic either at his or her local library, by attending the regional university library, or by availing his or herself of the extensive inter-library lending system that made academic journals and publications available by request to even the most rural and the most poor students in America.  This system of easy access has crumbled of late under the onslaught of JSTOR, SAGE, MUSE and other on-line academic databases that have usurped the position and privilege of traditional print journals by promising universal, easy on-line access to their contents, but then charging tremendous fees for the elite luxury of such access – often more than $30.00 per article, sometimes as much as $5.00 per page. 
    Having access to electronic distribution by JSTOR, many journals have decreased or stopped print publications altogether.  Similarly, facing the increased costs of physical storage, even many research universities no longer stock the print editions of many publications, depending rather on corporate subscriptions to JSTOR and other sites.  This is fine if you are enrolled in a large, state-subsidized academic institution, but not so great if you are a rural student, an independent scholar or merely attending a poorer, smaller institution such as a Bible college or community trade school.  Obviously, if the print editions are no longer available, they can no longer be accessed directly or via interlibrary loan.  An outside user must purchase the material, more-or-less sight unseen at prices out of reach for even moderately wealthy patrons.  Publically produced knowledge and information meant to enrich and educate the public is no longer accessible to any but only the most privileged members of that public.  That is what Swartz, himself an academic fellow of Harvard University, was protesting and fighting against.  That is for what Boston-based Federal Prosecutor Carmen Ortiz, married to a wealthy IBM executive, and Assistant US Attorney Stephen Heymann sought to punish Swartz – threatening him with up to $1,000,000.00 in fines and a prison term of up to 35 years. 
    To their credit, noting that Swartz had not distributed the articles, JSTOR more-or-less moved on and dropped all charges after Swartz returned his copy of the electronic documents.  Ortiz and Heymann were less forgiving.  On Friday, 11 January 2013, after failing to reach a negotiated settlement to avoid prison and felony status such as O’Dwyer had succeeded in doing, Swartz killed himself.
    One might not see the similarity at first between an Internet site providing free access to television and film programming, and the threat of one providing free access to academic journal articles, but that is only because while JSTOR, SAGE and MUSE have become household names only after Swartz’s suicide, others such as NBC, ABC, CBC and BBC have become such a part of our lives so as to be taken almost for granted.
    In fact, there is little difference between current debate regarding the use of and access to essential knowledge and public information over the Internet and early 20th Century debate over the use and potential of an earlier technology – radio and television broadcasting.

    In 1934, publically-owned assets such as the national airwaves were made available to private commercial business developers in the United States under the Communications Act of 1934.  In 1934, television and radio promised to be, or were, the Internet of the era and the United States Federal government used similar justification in seeking to control and regulate it (or dole out its economic potential).  Indeed, much debate occurred in Congress during the negotiations over the Act as to whether this public resource should be reserved for the public good (news, educational programming and civic-minded programming) or released to commercial developers for individual profit.
E. Holles and H. Cassirer courtesy Dolph Briscoe Center, Austin, TX
    Senators Robert Wagner (D-NY) and Henry Hatfield (R-WV), proposed a compromise between public and private development of the new medium by sponsoring an amendment reserving 25% of the airwaves for educational and non-profit programming.  They were opposed by Senator Clarence Dill (D-WA) who despite having once been a teacher, became the spokesperson for the proposed private communications industry to avoid limiting commercial stations, coverage and content.  While some gestures towards education and promotion of the public good were in fact required by the FCC of the new commercial media giants, in 1990, efforts to reform commercial television content resulted in The Children’s Television Act which mandated that at least three hours per week, or 1.7% of programming be dedicated to non-commercialized educational content.  Public Broadcasting corporations were founded in the mid-century to meet the need for educational and cultural programming but would never achieve the status or strength in the United States of such corporations in other countries.      
    Similarly, much of the early promise of the Internet in the 1980s had by 2000 been privatized and commercialized with even academic content (JSTOR) and government documents (PACER) available only at high subscription rates.
    Things did fare better in countries such as the United Kingdom with BBC and in Canada with CBC-Canada.  BBC began in Britain in 1922 under the most auspicious of publically minded visions.  British historian and royal biographer William Shawcross reports that the inscription over the original BBC headquarters building read, “This Temple of the Arts and Muses is dedicated to Almighty God by the first Governors of Broadcasting in the year 1931 … It is their prayer that good seed sown may bring forth a good harvest, that all things hostile to peace or purity may be banished from this house, and that the people, inkling their ear to whatsoever things are beautiful and honest and of good report, may tread the path of wisdom of and uprightness.” (Philippians 4v8).  In Shawcross’ words, “The most powerful harbinger of change [in British culture] was probably television.  In 1955 the BBC had lost its monopoly of television broadcasting, after anguished Parliamentary debate, and new commercial companies flourished and competed thereafter.  In 1960 there were ten million combined radio and TV licences in the country; within four years the number had doubled and the coming of colour in 1968 led to another surge in the sale of television sets and the number of viewers.  IN the 1960s, the BBC’s mission changed:  it had begun as a temple to arts, science, the glory of God and the propagation of knowledge.  Now its Director General, Hugh Greene, began to push the BBC away from its traditional culture of decorous reserve ‘right into the centre of the swirling [commercialized] forces that were changing life in Britain’.” (Shawcross below). 
    By the advent of the 21st Century, public funding of educational programs and networks would be more or less eliminated in the United States and severely curtailed in Britain.  As for access to commercial content, under pressure from powerful corporate interests, copy right laws would be repeatedly extended (the so-called ‘Mickey Mouse protectionism’) and independent consumer access to commercial content would be severely restricted under proposed legislation such as SOPA and the shutting down of clearinghouse or listing sites such as O’Dwyer’s  Powerful commercial interests had taken a public good, developed it, purified it of less profitable, outside cultural and educational interests and obligations, and are now in the stages of attempting to establish a subscription-only public culture under their control and for their financial benefit.  While this last statement is a bit rhetorical, the prevention of such a society was seemingly the inspiration behind Swartz’s crimes of conscience.
   In the end, O’Dwyer’s more innocent and more profitable “attack” on the copy right interests or ability to control, manipulate and profit from the shared public culture or information, its access and distribution, is in reality exactly the same action as that was pursued by Swartz, only that the television networks had given up the early promise of distributing and assisting educational and cultural programming in favor of the more profitable distribution of low-brow comedy, talk shows and inexpensive made for television movies. More highbrow level, JSTOR today is the educational programming vision, or BBC of yesterday.  Swartz recognized this and while O’Dwyer was able to get off Scot free, Swartz was facing the loss of his freedom, his youth and his fortune.

16th Century Printshop
    As indicated, O’Dwyer and Swartz are not the first of their kind.  In the 16th and 17th Centuries, many free thinkers in Roman Catholic Europe, England or Russia, faced overbearing pressures from royal, imperial or church control over publication and opposition to the newly embraced public right of the free flow of ideas.  Free thinkers and scientific discoverers were often unable to get their writings past censors, often being even unwilling to even submit potentially controversial materials for such review.  Many controversial writers of the Enlightenment smuggled their writings out of Paris, Rome and other cities to have them published by the democratic, often Anabaptist, free printers of Amsterdam and other Dutch cities.  This list included Descartes, Diderot, Voltaire, and even Dutch citizen, Spinoza, who faced and feared even the relatively tolerant Dutch Calvinist authorities.  In this way, the heirs of the Radical Reformation’s theology and independent culture often played midwife to Europe’s Age of Enlightenment and the German-dominated Aufklarung.  The Dutch printers, Anabaptist and otherwise, were making information readily and inexpensively available to the general public and fostering the growth and spread of essential new outlooks and idea in an environment safe from the long reach of those who sought to control or manipulate such knowledge.  They would be good company for Swartz to keep. 
    Glenn Greenwald of the London Guardian, writes of Swartz and the opinion others had of him, … “rather obviously, Swartz had little interest in devoting his life to his own material enrichment, despite how easy it would have been for him. As Lessig wrote: "Aaron had literally done nothing in his life 'to make money' . . . Aaron was always and only working for (at least his conception of) the public good."  Specifically, he committed himself to the causes in which he so passionately believed: internet freedom, civil liberties, making information and knowledge as available as possible,” (see below). 
    This was the same passion that fueled early democratic Mennonite printers and bookbinders who often dared all to print their own ideas and the often endangered views of others.

    Of a slightly different genre, but relating also to the controversial licensing of public goods to private developers in the public interest would be railroads, the economic lifeline or technological Internet of the 19th Century.  In their day, railroads were often criticized for restricting access to a public resource or charging excessive rates for such access to a public that had donated the lands to build these now privately held public lifelines in the first place.  Farmers and political leaders periodically rose up in opposition to this capitalist-stranglehold over the public good and the public interest and the railroads’ ability to enforce and amass huge private fortunes for those arbitrarily lucky enough to hold licenses to provide this common good.  Agrarian unions such as the Grange and Farmers’ Alliance were organized to protest the railroad’s manipulation of access, shipping rates and even commercial interests against the public good.  For the most part, the public lost and while railroads remain highly profitable and lucrative businesses in the United States and Canada into the present, North American public culture is widely known for having found alternative routes to work around such manipulation in their dependency and use of public ports and airports and the world’s heaviest dependence on automobiles and the public Interstate roadway system – a system often heavily criticized by American railroad companies as being unfairly publically subsidized as a freely accessible public alternative to their own privatized public service provision – a sort of publically subsidized alternative to the railroad version of NBC, ABC and CTV enterprises.
Granger cartoon courtesy
    [Note:  I have read a number of academic and business articles, both pro-rail and pro-Grange.  What both agree on is that rail transportation costs did in fact drop during the period 1870 to 1900 and market prices might even have increased.  What they do not agree upon is whether or not the farmers and farm communities were able to or even allowed to benefit from these decreased rates or if the benefits of improved transmission, transportation and market access were or were not manipulated into the pockets of the railroads and related marketing firms.  I have found the tone and analysis of much of the pro-Industry side to be a bit naïve as to farm economies (I both grew up on a family farm and worked for BNSF for six years) and much of the pro-Farmer material to be a bit rhetorical in its support of Populist mythologies, meaning that there is much work yet to be done in determining the actuality of the Grange protests and potential railroad manipulation of prices and market access during these times.]
    Swartz’s legacy is probably more important and less amazing than most of us are cursorily aware.  His legacy of civil disobedience places him in a long line of those who have protested the appropriation of the public good for private gain and the use of public licensing and the courts to gain access to development rights of these common goods and later trends to attempt to manipulate and maintain control over public access to these formerly public goods.  In the 16th through 18th Centuries, Dutch printers, including many courageous Anabaptists, championed the public good of widely distributed intellectual knowledge and committed acts of civil disobedience to prevent its control and manipulation.  The same might be said of the Granger and Farmers’ Alliance late 19th Century protests against potential abuses by private railroads against the public interest and of debates and realities surrounding the establishment and commercialization of the public airwaves beginning the 1920s and 1930s.  The Internet cultural wars are just the latest in a long series of battles to which Swartz and O’Dwyer stepped up and fought. 
    But in that these battles seem to be perpetually recurring and never resolved, Swartz and O’Dwyer did in fact step up to an illustrious heritage as examples that too few of us are even aware to emulate.  But, as Diller, Ortiz and Heymann illustrate, those who would offend the public good for their own financial and/or political gain, are ever restless and must be called out again and again and challenged whenever others find their actions or goals questionable and when they might resort to force rather than dialogue to establish what is to be permitted and what constitutes abuse of access and privilege.  (Ortiz’s recent statement that the 6-month offer was still on the table contradicts earlier reports.)
    As a legacy response to these questions, Congressperson Zoe Lofgren (D-CA) has now introduced Aaron’s Law to amend the Computer Fraud and Abuse Act to restrict its scope and what she refers to as overly broad parameters that seem to have encouraged potential abuse of authority by Ortiz and Heymann.  Eventually, Europe learned to reign in its censors and the Inquisition.  Lofgren’s bill seeks to do the same for those would potentially abuse their public authority for the economic gain of private enterprise supporters seeking to develop, monopolize and then restrict access to the public good, public culture, public knowledge and public education today.  This is pretty much how I interpret these disparate but innately related persons and events.

for further reading ...


1 comment:

  1. Research continues on all fronts: I was under the impression that PACER, the site from which Swartz originally downloaded and distributed documents, was a privately-held government contractor but is in fact owned and operated by the Federal Judiciary. Yet, at the same time, the fees do seem a bit high and perhaps unjustified in that these records really should be, and have been in the past, provided for free, especially in an electronic format (one could see charging for print-outs or publications).

    My gut feeling is that our courts are increasingly being placed in a situation where those who can afford to pay, and to pay the most "user fees" are able to experience an unequal and therefore unjust access to the authority of the courts. This is something that we see everyday in credit cases and rental evictions -- let alone the massive mortgage frauds that still remain under-investigated by the state and Federal judiciaries.

    In a Democracy, primary access to all necessary levels of government probably ought to remain free, and the product of our democratic government needs to be distributed freely so that it is not only the prerogative of the wealthy to seek and understand justice and so that the judiciary can not be blindly abused by those who can pay against those who cannot (returning us to the abuses of the afore-mentioned rather corrupt ancien regimes of France and pre-Revolutionary England.

    A copy of a simple estate filing would cost between $5.00 and $10.00. A copy of the Obamacare ruling would cost $19.30 and a copy of the controversial Vaughn-Walker decision California regarding the legality of Prop 8 would cost $13.80. A regular citizen seeking to remain informed or a school child writing a report would probably find such fees preventative -- especially for documents that are easily generated and distributed for free.

    So hopefully this clarifies the basic facts regarding PACER while indicating that the admitted factual error on my part has no implications for the alarm expressed by those who would tend to agree with Swartz's actions in these matters.


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