The JSTOR Case - US Government v Aaron Swartz

Although we have thus far discussed P2P file-sharing in terms of its most representative instances, that is, the exchange of materials drawn from popular culture, other artefact classes are also swapped, from pornography to ‘serious’ publications. Sometimes genre-specific events can bring into focus larger issues arising from cultural commodification, public domain contraction, and resultant counter actions and movements. For example, recently American digital activist Aaron Swartz allegedly downloaded a massive number of papers from the JSTOR academic database. Subsequently the United States Government brought unprecedented charges against him, claiming that he planned to release the material through P2P networks. This case demonstrates how even the spectre of unsubstantiated file-sharing can trigger disordering responses across informational domains (academia, publishing, policing, justice), some of which which might be more rooted in emotions (anger, fear, revenge, spite, etc.) than in pragmatic circumspection.

We will examine some elements of this data liberation tale with reference to two of our mess principles: Principle 4, ‘as information is easy to replicate, it can escape its confines,’ and Principle 5, ‘the information economy is a parasitic economy.’

JSTOR is a US-based not-for-profit organisation which aims to help ‘scholars, researchers, & students discover, use, and build upon a wide range content in a trusted digital archive’ ('JSTOR Fact Sheet' 2011). Established in 1995 it provides a gateway into over 1400 academic journals spanning 50 disciplines, doing so by licensing content from more than 800 publishers (ibid.). JSTOR is a bulk transmitter of information with its users downloading over 63 million articles in 2009. It is also an organisation which embraces the rhetoric of neoliberalism, and of neoliberalism’s artistic wunderkind, the creative industries. The project prominently declares that it uses ‘information technology and tools to increase productivity and facilitate new forms of scholarship’ ('JSTOR Home Page' 2011, emphasis added). It seems curious that a portal into specialised libraries would trumpet ‘productivity,’ a word which for many would evoke imagery of employer/employee conflict, union accords, and the exploitation of casualised ‘flexible’ labour. And indeed, JSTOR had already been the subject of some controversy regarding knowledge and property, periodically accused of assisting publishers’ exploitation of authors amongst other charges.

The structure of JSTOR’s pay-for-access model suggests that despite concessions for poorer countries, it nevertheless replicates old forms of elitist scholarship. It charges institutions (7,000 of them from over 150 countries) a fee for their students to access specific journals via the JSTOR portal, with 90% of these institutions being medium to very small schools ('JSTOR Fact Sheet' 2011). Although 14% of institutions receive free or reduced fees, the costs for most are extremely high. For example, in his Guardian article entitled 'Academic publishers make Murdoch look like a socialist' George Monbiot (2011) notes that an annual subscription to a chemistry journal is USD3,792, other journals might cost USD10,000, and Elsevier's Biochimica et Biophysica Acta costs USD20,930. Journals consume 65% of academic libraries’ budgets, says Monbiot, forcing them to reduce book purchases. Unsurprisingly only around 50 North American public libraries are JSTOR members, which means that the bulk of the general population in this region are excluded from accessing such material. For individuals not linked to participating organisations access costs can be prohibitive, especially because the first stage of most research typically involves broad literature searches. Publishers themselves set the price per article accessed via the JSTOR database, and these range between USD31.50 (Elsevier) and USD42 (Wiley-Blackwell) (ibid.). Publishers’ profits are ‘astronomical’ with Elsevier’s profit margin for instance being 36% or UK£724m on revenues of UK£2bn (ibid.). The academic publishing market is an oligopoly fueled by acquisitions of smaller players; Elsevier, Springer, and Wiley ‘now publish 42% of journal articles’ (ibid.).

The corralling of academic research in general into the walled gardens of professional peer-reviewed journals is a clear example of how knowledge enclosures operate within information capitalism. Most research within academia is publicly funded, notwithstanding the increasing dependency of tertiary institutions upon corporate funds to co-finance industry-oriented projects). Yet the tangible outcomes of this research, the journal papers, are mostly privatised because they are published in publications requiring expensive subscriptions. So research costs are socialised, and research output privatised, accessible only to those who have a key to the gardens via institutional gateways.

Universities maintain and extend these hierarchies of exclusion. Academic work in general, note De Angelis, and Harvie (2009: 6) possesses ‘all the basic characteristics’ of what post-Autonomist theorists term ‘immaterial labour,’ that is, cooperative labour grounded in the social which produces ideas, symbols, relationships, and affects. Such ‘biopolitical’ labour is the paradigmatic form of work within informatised societies and opens new territories of exploitation of workers’ innately human capacities—for thought and language. ICTs mine, harness, and commoditise such output, assisted by legal instruments developed in pre-digital eras. The ‘widespread restructuring of education’ since the 1970s have seen universities become a ‘terrain for marketisation agendas’ (ibid. 7). To further this agenda they require their researchers to ‘publish or perish,’ with the imperative to disseminate output via the most prestigious journals and publishers.

The academic publishing machine can only function on the basis of incalculable amounts of non-remunerated labour. Although some researchers (increasingly less due to casualisation) are paid for the time it takes to write, peer-reviewers are not paid, and neither are many of the editors of anthologies and journal special issues. This model is based upon the ‘private appropriation of public labour,’ because although publishers value-add by taking on ‘copy editing, layout and design...the overwhelming majority of the labour involved in the process of producing a journal-article is given freely by academics employed by public institutions’ (Pirie 2009: 32) . Yet no-one else in the publishing food chain is working gratis. The rationale for this overt exploitation of those whom some refer to as the ‘cognitariat’ (ref) is that payment comes in the form of reputation, and enhanced reputation (amongst a relative elite who can afford to read one’s work) increases one’s employment prospects. This techno-social assemblage of ‘cognitive workers’ (the serfs and the overlords) and informatised systems of production and distribution provides an excellent demonstration of our fifth mess Principle, namely that ‘the information economy is a parasitic economy.’

A hesitation by the academy’s ‘precarious’ workers to rock the boat could explain why there has been little academic research to ‘develop a critical political economy of the process,’ leaving it to ‘politicians and the major charitable foundations that support scientific enquiry,’ in the United Kingdom at least, to commission reports on the current model’s ‘limitations’ (ibid.). For example, the Wellcome Trust (a philanthropic funder of scientific research) commissioned a study to compare the costs and benefits between a ‘subscriber-pays’ and an ‘author-pays’ model (‘where the author (or their funder or institution) pays for the publishing services but where the final paper is published in an open access journal, available for free via the Internet’) (SQW Limited 2004: iii). Wellcome’s starting proposition is that an ‘organised’ and equitable information ordering regime for the ‘output of scientific endeavour’ is an ‘important activity for any sophisticated society’ (17). The final report concluded that an author-pays model was a ‘viable alternative’ which could deliver ‘high-quality, peer-reviewed research at a cost...significantly less than the traditional model while bringing with it a number of additional benefits’ (iii).1

Although this report focused on scientific, technical and medical (STM) journals its findings are applicable across the spectrum of academic publishing. In this ‘complex’ dual market supply and demand are determined by ‘factors relating to current research concerns and the quality of output,’ whereas the associated commercial market ‘shadow[ing]’ the academic is ‘relatively conventional’ with publishers selling a product (journals) to libraries (SQW Limited 2004: 1). These publishers are not homogeneous as they combine ‘profit-maximising companies’ with other organisations ‘seeking a satisfactory profit or surplus’ (ibid.). The buyers are the libraries with fixed budgets who they can only ‘respond to price by increasing or reducing purchases’ until their limit is reached. Clearly competition operates differently in this system, because if a library requires a specific journal for its subscribers to be kept up to date with the latest developments, it cannot purchase something similar or identical from another publisher—these are unique goods. For instance, the British medical journal The Lancet is nearly 200 years old, and it would be difficult for a potential rival publication to gain purchase in the market.

However this fact begs the question of whether other more equitable ways to disseminate new knowledge in any field exist or can be created. As the report notes, ‘electronic archiving’ on the internet is relatively cheap and facilitates access to timely research outputs (17). The absence of an ‘efficient, centrally-funded electronic archive’ challenges traditional publishers’ relevancy in that a ‘de facto’ open archive offering ‘very cheap or free document delivery’ will emerge organically and become the global ‘norm’ (ibid, emphasis in original). Which returns us to the story of JSTOR, the privately-funded database which arguably does not offer affordable access to the treasure troves of multi-disciplinary research.

Aaron Swartz (b. 1986) is a young American programmer and and digital activist based in Cambridge, Massachussetts
bearing prodigious geek credentials. At age 14 he helped develop the technical specs for the RSS software for automating newsfeeds; later he co-founded the Reddit user-driven news aggregator platform/community, developed meta-data for the Creative Commons content licensing system, co-founded the Demand Progress digital activism organisation, and was a Fellow at Harvard’s Edmond J. Safra Center for Ethics. Swartz’s credentials suggest that he belongs within the camp of technolibertarianism, an ideology promoting electronic freedom and individual rights which is strongly influenced by the broader libertarian ideals deeply rooted in the United States. The magazine WIRED is a classic example of technolibertarian thought. Technolibertarians take the first part of our third Mess Principle, namely that the ‘information society requires free, easy distribution of information’ while totally rejecting the second part, that it also requires ‘restrictions on information so as to create shortages, property and profit.’ They cludge together the entrepreneurial individualism of free markets with a digital utopianism and, it could be argued, a steadfast (and naïve) faith in the instrumentalist power of information.

Swartz’s (2008) ‘Guerrilla Open Access Manifesto’ released online exhorted activists to ‘fight back’ against the sequestering of scholarly papers and information behind paywalls. ‘It’s time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture,’ the manifesto declared. Significantly, one of its goals announced that ‘We need to download scientific journals and upload them to file-sharing networks.’ Swartz enacted the spirit of these ideals a year later when he responded to an public appeal by open- government activist Carl Malamud. The State-run Public Access to Court Electronic Records (PACER) database system was running a free trial enabling people to download US court records without incurring the normal charges. Malamud believed that ‘putting the nation’s legal system behind a wall of cash and [technical] kludge’ separated citizens from the ‘operating system for democracy’ (Schwartz 2009). Consequently, Aaron Swartz wrote a PERL script which automated the downloading process, and retrieved ‘an estimated 20 percent of the entire database’ or almost 20 million documents (ibid.). This same script uploaded the files to Amazon’s EC2 cloud computing service where they could be publicly downloaded, although not in an easily searchable form. The Government Printing Office suspended the free trial and alerted the FBI that the PACER system had been ‘compromised’ (Singel 2009). The FBI investigated the mass download, and although no charges were laid Swartz was now on the government’s radar.

In the fall/winter period of 2010-2011 Aaron Swartz was alleged to have hacked into the network of Massachusetts Institute of Technology (MIT) computer archive to download in an ‘unauthorised fashion’ a ‘substantial portion’ (some 4 million articles) of JSTOR’s publisher partners’ content (‘JSTOR Statement: Misuse Incident and Criminal Case' 2011). JSTOR claimed that the content was ‘systematically downloaded using an approach designed to avoid detection by our monitoring systems.’ To hack the database Swartz allegedly wrote a script in python, which he named JSTOR identified Swartz as the individual responsible, retrieved the digital content, and was assured that the ‘content was not and would not be used, copied, transferred, or distributed’ (ibid.). Nevertheless the US Department of Justice (DOJ) commenced a criminal investigation and indicted Swartz on 19 July 2011, under the direction of the United States Attorney’s Office ('United States of America v Aaron Swartz' 2011). Swartz pleaded not guilty to all counts, and was released on USD100,000 unsecured bond. JSTOR reiterated that their aim was to secure the content, and that they ‘had no interest in this becoming an ongoing legal matter’ (ibid.). Why then was the DOJ intent on bringing a case against Swartz, the potential consequences of which included a prison sentence of up to 35 years and a USD 1million fine?

Some possible answers might be revealed by returning to the conflictual relations between knowledge and property in the digital era, and the tension between the need for information to be free (as in unfettered) for social, technological and cultural innovation to flourish for the public good, and yet constrained to maintain profit for the private purse. The DOJ’s treatment of Swartz was likened to ‘trying to put someone in jail for allegedly checking too many books out of the library’ said David Segal from Demand Progress, implying that a natural thirst for knowledge was being criminalised (Morgan 2011). Reddit forum contributor mizhi (2011) focussed on the ‘outrageous’ practices by ‘data warehouses’ such as JSTOR and Elsevier which ‘lock up scientific knowledge,’ noting that these organisations exploit both authors and reviewers. Another Reddit contributor justinh_tx (2011) cynically commented ‘Hell, if he was a Wall Street CEO they'd just give him a bonus,’ alluding to those white-collar crimes which are permitted and even handsomely rewarded within information society compared to infractions by benevolent robbers.

The US government took the view that all property is equal, no matter its type, evoking images from earlier eras. US Attorney Carmen Ortiz asserted that ‘Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data, or dollars (Valencia 2011). Ortiz brooked no trust with a potential Robin Hood defence, stating that theft is ‘equally harmful to the victim whether you sell what you have stolen or give it away’ (ibid). The language used—crowbars, victims—evokes crimes against the person, the body, instilling a degree of anxiety about where this kind of theft could lead to. Steven D. Ricciardi, special agent in charge of the US Secret Service in New England described the Electronics Crimes Task Force as taking an ‘aggressive stance in the investigation of computer intrusions and other cyber crimes,’ stressing the imperative of cooperation amongst law enforcement agencies to ‘investigate and prevent this type of fraud’ (ibid.). This perspective shifts back to the spectre of white collar crime and fraud, implying that financial profit motives rather than political principles were the driving factors in this case.

What about the indictment itself? The DOJ ('United States of America v Aaron Swartz' 2011, emphasis added) described the offences in the following way:

Between September 24, 2010, and January 6, 2011, Swartz contrived to:
a. break into a restricted computer wiring closet at MIT;
b. access MIT’s network without authorization from a switch within that closet;
c. connect to JSTOR’s archive of digitized journal articles through MIT’s computer network;
d. use this access to download a major portion of JSTOR’s archive onto his computers and computer hard drives;
e. avoid MIT’s and JSTOR’s efforts to prevent this massive copying, measures which were directed at users generally and at Swartz’s illicit conduct specifically; and
f. elude detection and identification;

all with the purpose of distributing a significant proportion of JSTOR’s archive through one or more file-sharing sites.

While clearly the DOJ believe that enough direct evidence exists for them to bring a case against Swartz, there is no proof to support the allegation that Swartz’s intention was to distribute the materials via file-sharing sites. The only ‘evidence’ is circumstantial, residing in the words of Swartz’s Guerrilla Open Access Manifesto (2008). In this he states that ‘We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that's out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks.’ (Initiatives such as LibraryPirate (2011) follow the spirit of this this idea, by enabling students to co-purchase time-limited digital rental copies of text books, and then stripping the DRM from the PDF files and releasing them as torrents (enigmax 2011)). While the DOJ has not publicly linked this passionate call to arms to its case against Swartz, other commentators have made the connection. For instance, Maria Bustillos (2011) writing for The Awl argued that the ‘Feds’ had been ‘waiting for a chance to go after him’ since his PACER download, because ‘perhaps a certain resentment lingered’ as they were then unable to press charges. Moreover Swartz was a ‘progressive activist and passionate champion of the free Internet and of open access,’ with Bustillos noting that his Manifesto had been removed from its website ‘apparently in response’ to the legal situation.

So here we have the spectre of the hacker seeding a kind of ‘data panic’ due to the loss of state/corporate control over individual and collective acts of data liberation. Other recent newsworthy data emancipation actions such as Wikileaks’ publication of the Iraq and Afghan war logs and the ‘Cablegate’ diplomatic cables, and Anonymous’s hack of internet security firm HB Gary have produced comparable states of panic and attempts at retribution by authorities (Greenwald 2011; Bright 2011). This returns us to a fundamental question: is the Swartz case yet another politically driven attempt to criminalise knowledge democratisation in order to uphold the larger status quo, or is it an effort to protect the IPR of copyright owners & intermediaries by applying criminal law to protect specific corporate interests?

In any highly mediated society the representation of protagonists embodying and enacting the dynamics of complex contested issues can influence public perception. In Swartz’s case quality American print media depicted him as a heroic figure. In a single New York Times (NYT) article (the conveniently photogenic) Aaron Swartz was described as a ‘respected Harvard researcher,’‘internet folk hero,’‘member of the Internet elite,’ and ‘civil liberties activist who crusades for open access to data’(Schwartz 2011). This was an elevation from his depiction by the same journalist as a ‘22-year-old Stanford dropout and entrepreneur’ two years earlier (Schwartz 2009). Another NYT journalist tagged him as a ‘free culture advocate’ and ‘not a run-of-the-mill hacking suspect’ (Cohen 2011). Influential digital culture magazine Wired described him as a ‘well-known coder and activist’ and a ‘general friend of’ (Singel 2011). For columnist Glenn Greenwald (2011) Swartz was a ‘copyright reform advocate.’ Across the Atlantic The Guardian described him as ‘Harvard's Aaron Swartz,’ a ‘self-styled digital Robin Hood,’ ‘well-known digital activist, the founder of online group Demand Progress and...a brilliant programmer’ (Adams 2011).

It is instructive to compare these highly positive depictions to those of another young data liberationist, the alleged leaker of US defence and diplomatic files, Bradley Manning, the recipient of ‘cruel and degrading treatment’ by the State (Greenwald 2011). The ‘common thread’ linking the Swartz and Manning ‘persecutions,’ says Greenwald, citing other recent instances also, is to ‘stifle meaningful dissent of any kind—especially civil disobedience—through intimidation and excessive punishment.’ The result is a ‘sprawling Surveillance State’ which recognises the power of the ‘free flow of information and communications enabled by new technologies’ are hence are ‘increasingly fixated on seizing control of it’ to ‘snuff [] out its potential’ for subverting the social order. Greenwald’s ongoing critique of the power dynamics within the United States’ version of informational capitalism highlights the fact that singular acts of information sharing, whether or not facilitated by P2P file-sharing systems, can have profound consequences, both for those parties directly involved, and the larger society to which they belong. The disproportionality of the penalty Swartz faces if convicted of the hacking felonies is comparable to the excessive fines imposed on alleged music file-sharer Jammie Rassett-Thomas in her long-running legal battle with the RIAA who now owes ‘$62,500 for each of the 24 songs she was accused of illegally sharing’ totaling USD 1.5 million (Sandoval 2010).

We will conclude this narrative of Swartz, JSTOR and the United States government with two examples of how the unfolding situation generated further disorder in the info domain. From below came a solidarity action in the form of a data dump of 18,592 scientific articles on The Pirate Bay (TPB). Inspired by Aaron Swartz’s arrest, in July 2011 American ‘technologist’ Gregory Maxwell posted a 32GB file of papers published before 1923 (and hence under US copyright law should now be in the public domain) (Lee 2011). In a kind of manifesto Maxwell (2011) explained that he had obtained these ‘historic back archives of the Philosophical Transactions of the Royal Society, a prestigious scientific journal with a history extending back to the 1600s’ some years earlier from JSTOR through ‘rather boring and lawful means;’ his fear that ‘paywall gatekeepers like JSTOR’ would have meted out ‘unjust legal harassment’ had previously prevented him from uploading them online. Although not identifying as an academic himself Maxwell demonstrates a thoughtful critique of the academic publishing system which perpetuates ‘dead business models’ and depends on the political passivity and ignorance of ‘those with the most power to change the system--the long-tenured luminary scholars whose works give legitimacy and prestige to the journals’ (ibid.). Copyright is a ‘legal fiction representing a narrow compromise’ in which people partially relinquish their ‘natural right to exchange information in exchange for creating an economic incentive to author’ in order to encourage original production. However, publishers ‘abuse’ this system to perpetuate their own businesses and use legal threats to ‘suppress the dissemination of publicly owned works.’ Thus they are ‘stealing from everyone else’ (ibid.).

Many Pirate Bay forum participants voiced their support for the action: ‘DL [and] seed just for the cause!,’ ‘I'm sure William Herschel [18th C astronomer] thanks you, as ..he would [have] enjoyed a larger audience than his research has been allowed,’ ‘science must never be a hostage to business,’ ‘let's jimmy this system open, and keep it as open as it can be,’ ‘a blow to those who would privatize humanity's birthright,’ and ‘the embodiment of what knowledge file sharing truly is.’ While probably many of those who downloaded the archive would have no immediate use for the contents, 2 months after its release 161 people were seeding it, a high ratio for such arcane material indicating that this was a ‘swarm’ of solidarity with the cause of open knowledge. Swedish anticopyright group Missionerande Kopimistsamfundet (the Missionary Church of Kopimism) expressed it thus: ‘Let science flow, through fiber an’ through copper. Let knowledge fly through our satellites and back. Let understanding be copied to each others minds, through dialogue and reading. Let scientific data be mailed, downloaded and uploaded’ (laxsill 2011).

Aaron Swartz never released the JSTOR documents he had allegedly acquired to the public domain, and so while his actions had caused some temporary disturbances to MIT’s and JSTOR’s computer networks the main direct outcomes would play out within the informational fields of the law, the media, and the academy. The ripple effect would however generate other outcomes in other fields, such as Maxwell’s direct action dump of paywalled materials onto the internet, where the document contents and Maxwell’s ‘manifesto’ proliferated across new networks further seeding arguments for open knowledge systems.

Finally, a recent action from above has further disordered the boundaries between private and public knowledge pathways. On 7 September 2011 JSTOR’s Managing Director Laura Brown (2011) announced that JSTOR was making selected journal content ‘freely available to the public for reading and downloading.’ These 500,000 newly-liberated articles published prior to 1923 in the US and prior to 1870 elsewhere represented approximately 6% of JSTOR’s total content. On one hand this could be regarded as a tokenistic act as the material excluded more contemporary output; however it could also be interpreted as an action which could inspire other copyright holders and publishers to review how to change their practices around the commodification of knowledge. JSTOR and some of their publishers had already been experimenting with initiatives targeting unaffiliated individuals wanting to access to content on JSTOR for individuals. The Swartz case had impacted on the timing of the Early Journal Content release, as JSTOR considered whether to ‘delay or accelerate this action, largely out of concern that people might draw incorrect conclusions’ about their motives, eventually deciding to proceed ‘in the best interest of our library and publisher partners, and students, scholars, and researchers everywhere’ (ibid.).

The Swartz/JSTOR/US government narrative exemplifies how an action in one informational domain can resonate across other domains, producing both disorder and new ordering attempts. Swartz’s python script accerelated and massified the downloading process, but was implemented in a partially analog fashion, by Swartz allegedly entering an MIT server cupboard and attaching drives to the machines. There was an embodied performative aspect to his actions, the wearing of a basic disguise (a bike helmet). Satisfied that Swartz had not released the data to the public domain (thus not threatening their paywalled information business model) JSTOR did not want to the incident to migrate to the media sphere by pressing charges. However the State had different priorities, making an example of this transgression by applying extremely serious charges equivalent to those targeting hackers of military databases (see for example 'Free Gary McKinnon' 2011). This in turn generated pro-Swartz media coverage, with the news of the Swartz’s arrest inspiring Maxwell to conduct a direct action on The Pirate Bay, posting a manifesto about the commodification of knowledge and torrenting 1000s of arcane scientific files which continue to be seeded in solidarity. From this chaos JSTOR attempted to reinscribe some order by releasing a small tranche of free files, while maintaining their user-pays model.

Significantly, all of these events have occurred with little discussion about the larger context of user-pays education, where the converging currents of corporatisation, bureaucratisation, and informatisation of institutionalised higher education are rapidly changing how learning happens, and who are the real beneficiaries of these changes. In postings to the Institute of Distributed Creativity list, cultural critic and activist Brian Holmes (2011a, 2011b) describes a ‘knowledge economy that never became a knowledge society,’ in which ‘bloated’ and ‘corrupt’ universities play an important role in perpetuating this economy and the ‘neoliberal ideology’ underpinning it. American universities, Holmes claims, ‘massively manufacture, not only neoliberal subjectivities but also neoliberal policy and technology,’ and are severely compromised by the corporate and military funding upon which they have become dependent. Hence alternatives must come from below, from self-organised cooperative communicative autonomous initiatives sharing the intention to ‘start a revolution in the knowledge factory,’ beginning with a ‘critique that is turned toward action’ (ibid.). In a small way, Maxwell’s release of a manifesto and files to the swarm could be read as just that.

This first-draft text is part of a longer book chapter on peer-to-peer file-sharing for Marshall, J., Goodman, J., Zhowgi, D. & da Rimini, F. 2012 (under contract for January 2012), Disorder and the Disinformation Society: the dynamics of networks and software, Routledge.


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