During the two-day retreat in Cupramontana, Swartz listened and grew indignant as scholars and librarians from third-world countries recounted their struggles with access restrictions. Though the specifics of each story differed, the outlines were similar: outdated libraries, frustrated researchers, underserved students, and unresponsive publishers. Governments passed laws to support old structures rather than encourage the development of new ones. Publishers relegated information behind paywalls, accessible only to those who could afford the toll. Database providers let long-forgotten books and papers molder in their archives, instead of releasing them to the public domain.
To Swartz, these policies were inefficient, and, worse, irrational—an affront to his utilitarian moral code. While short-term financial logic suggested that the publishers should cling tightly to their copyrights, the world would surely be better served if they relaxed their grip. The publishers’ business model seemed fundamentally immoral in the Internet age and, left unchallenged, would ultimately prove fatal to the open, collaborative Web. If the public wasn’t rising in opposition to restricted-access policies, it could only be because they didn’t understand the stakes. So, one night in Cupramontana, Aaron Swartz tried to elucidate the gravity of the situation as clearly as possible.
He began with a simple, declarative sentence that doubled as a statement of purpose. Information is power, he wrote, which is why it should come as no surprise that the status quo would prefer to keep information scarce. Want to read the papers featuring the most famous results of the sciences? You’ll need to send enormous amounts to publishers like Reed Elsevier.22
Had they been invited to Cupramontana, Reed Elsevier and its fellow publishers would have disputed Swartz’s accusation that they were hoarding the world’s cultural heritage to benefit the rich at the expense of the poor—or, indeed, that anything was venal about their buy-low, sell-high business model. Reed Elsevier profited by publishing academic journals and selling them for a fee. Its digital activities were neither particularly nefarious nor unprecedented. The company was simply using the Internet to develop another distribution channel for its products.
In 2003, the Downhill Battle activists had argued that the rise of the iTunes digital music store discouraged musicians and record companies from experimenting with new distribution models, ones that might better serve both musicians and consumers. An analogous interpretation can reasonably be applied to academic publishing. For Reed Elsevier and its competitors to try to impose an old model on an emerging medium, as if the Internet were just a printing press with a new paint job, wasn’t just a matter of ignorance or inertia, but an act of willful obstruction.
There are those struggling to change this, Swartz continued. He was one of those people. So were the others at the EIFL retreat, and all the far-flung open access partisans who had fought valiantly to ensure that scientists do not sign their copyrights away but instead ensure their work is published on the Internet, under terms that allow anyone to access it. But change wasn’t coming fast enough. With every day that passed under the current state of publishing and copyright, more and more material was being unjustly withheld, accessible only to those who could afford it, denied to those who could not.
It’s called stealing or piracy, Swartz wrote, as if sharing a wealth of knowledge were the moral equivalent of plundering a ship and murdering its crew. But sharing isn’t immoral—it’s a moral imperative. Only those blinded by greed would refuse to let a friend make a copy. Any reluctance to embrace free culture is a function of greed: for Swartz, the moral equation was often that simple. During his work with Open Library, for instance, Swartz hoped to utilize existing online catalog records that had been created by a pioneering library consortium called the Online Computer Library Center (OCLC). OCLC was the first group to digitize massive amounts of card-catalog information, and its database, WorldCat, today contains almost 340 million bibliographic records itemizing the collections of libraries around the world. OCLC is inarguably the world’s largest and most important library catalog, and Swartz came to believe that it did not want Open Library to challenge its supremacy. In November 2008, OCLC changed its terms of service to now stipulate that users were forbidden to use WorldCat data for any project that “substantially replicates the function, purpose, and/or size” of OCLC’s database.23
The consortium’s apparent power play infuriated Swartz. “As servers have gotten cheaper, it’s become easy to do for free the things OCLC charges such outrageous amounts for. But OCLC can’t have that,” he argued. “So they’re trying to stamp out the competition.”24 He couldn’t abide the logic of profit, whether it was advanced by OCLC, Reed Elsevier, or any other entity. After railing against large corporations that were unwilling to work toward open access, Swartz came around to his point, his call to action:
There is no justice in following unjust laws. 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.
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. We need to fight for Guerilla Open Access.
With enough of us, around the world, we’ll not just send a strong message opposing the privatization of knowledge—we’ll make it a thing of the past. Will you join us?
He called the document the “Guerilla Open Access Manifesto,” which, in retrospect, was perhaps nomenclaturally unwise. Manifesto connotes instability and political upheaval, the rise of people with nothing to lose but their chains; guerilla, for its part, brings to mind barbate insurgents in berets, toting Kalashnikovs through some fetid jungle. The title certainly suggested that Swartz stood for anything but peaceful, law-abiding resistance. That implication caused discomfort among some open access supporters.
Quinn Norton has claimed that others at the conference also contributed to the manifesto. But Swartz was the only one willing to take responsibility for it, which perhaps answered the question posed in the manifesto’s final line. This reluctance to embrace Swartz’s cri de coeur persisted as the document spread throughout the open access community. “I thought he was ethically right, but I was unwilling to put my own livelihood on the line with such strong statements,” the librarian and former EIFL affiliate Bess Sadler wrote years later of Swartz’s polemic. “A librarian who issued a manifesto like that would be unemployable, and that’s something that should give us all pause.”25
Librarians and academics, after all, had to work for and exist within the system they were criticizing. They tended to support incremental measures achieved through indirect means: petitions, consensus building, conferences, visioning retreats. But Swartz, now a freelance idealist, was uninterested in waiting around for systems to gradually reform themselves. Four years after Chomsky’s Understanding Power first sent him reeling with the vertiginous power of its transgressive political ideas, Swartz was surer than ever that systems existed to be bucked and refuted. If you want to save the world, sometimes you have to be willing to take to the caves.
* * *
IN 1991, when both the Internet and Aaron Swartz were still young, a man named Carl Malamud launched a guerilla open access campaign of his own. The International Telecommunication Union, a nonprofit group that promulgates global telecommunications standards, agreed to let Malamud post its nineteen-thousand-page Blue Book standards manual on the Internet.26 The ITU earned about $5 million per year from the manual’s sale, which was a good thing for the ITU, if not for the engineers who had to pay the Book’s steep purchase price.27 But now the standards were available online, for free, and they had proved much more popular than anyone had expected.
Malamud, at the time, was a thirty-two-year-old consultant and writer of professional reference books; his work required access to stan
dards documents, and he was routinely frustrated at their inaccessibility and excessive cost.28 Treating technical standards as if they were trade secrets only served to slow their global adoption. As he put it, “Standards have to be widely available or the standards are irrelevant.”29
So Malamud approached the ITU and volunteered to take their standards, convert them from the group’s archaic internal format into something more modern, and post them online. (Malamud billed himself as a founder of something called the Document Liberation Front, which probably should have given pause to the ITU.)30 The ITU, as an institution, still labored under the misimpression that the Internet was a niche medium used mostly by academics. The body agreed to comply with what it thought of as Malamud’s experiment, with no expectation that the Blue Book would find any significant online audience.
They couldn’t have been more wrong. “The academic toy, to the bureaucracy’s horror, turned out to have over seven million people,” Malamud wrote. “They were shocked to see hundreds of thousands of ITU documents being accessed by thousands of people in dozens of countries.”31 The ITU, envisioning that $5 million in annual sales evaporating into networked oblivion, hastily ended the project and attempted to reassert control over the Blue Book. Officially, the ITU stated that the “successful experiment has now served its purpose.”32 Writing in the trade publication Communications Week, a peevish Malamud suggested some ulterior motives behind the reversal: “If we gave away the standards, there would be fewer jobs at the ITU. There would be less control over distribution and more pressure to start responding to the realities of engineering in the rest of the world.”33
But Malamud had made his point. Though observers might dismiss the Internet as a novelty, the network had immense potential as a conduit for useful information. Later, Malamud compiled the results of his work with the ITU standards into a curious book called Exploring the Internet: A Technical Travelogue, in which he examined the ease with which the standards spread as well as the folly of trying to suppress data online. “The Internet is here,” wrote Malamud, “and it is not an academic toy.”34
Since then, Malamud has dedicated his life to demonstrating all the ways the Internet will change the world, once the world gets out of the Internet’s way. In 1995, Malamud was the first person to broadcast live online audio feeds from the floor of Congress. In 1996, in an effort to raise public awareness of the Internet and its potential as a democratic tool, Malamud organized an online world’s fair, featuring “pavilions” from countries around the world. “Previous world’s fairs have been very effective at exposing millions of people to new technologies,” Vice President Al Gore wrote in a letter endorsing the project. “A World’s Fair for the Information Age will give people a look at the not-too-distant future—a future in which all of us will be connected by a global network of networks.”35
Malamud’s Internet evangelism was inextricable from his open-data advocacy. “The Internet is a powerful force for democratic values and for an informed, responsive government,” he wrote in 1993, and he spent much time making the case to skeptical bureaucrats who did not take naturally to the Internet.36 The earliest federal websites lacked substantive information and functioned primarily as promotional brochures. More meaningful Internet adoption was inhibited by officials who dismissed the network as little more than a glorified party line for eggheads. In 1993, after listening to a representative from the Securities and Exchange Commission explain that the SEC wasn’t making corporate filings freely available on the Internet because Internet users weren’t “the right kind of people,” Malamud indignantly blurted that he, for one, thought “the American people were the right kind of people.”37
While Frank Capra would have applauded Malamud’s retort, the SEC official was somewhat less enthusiastic. “My input was not appreciated,” Malamud noted, but that was nothing new: a prophet, after all, is rarely appreciated in his own time. But the promised land was nigh, so to speak, and Malamud was determined to lead the federal government to it, by means of good example, moral suasion, or, if necessary, blunt force.
He used all three tactics with the SEC. Each quarter, the SEC requires all US public corporations to file reports that offer an accounting of their recent financial activities; these companies are also required to disclose other changes of state, such as insider stock transactions or executive turnover. In the late 1980s, the SEC hired private contractors to manage its electronic filing system, which was called Electronic Data Gathering and Retrieval (EDGAR). One of those firms, Mead Data Central, took the EDGAR filings, digitized them, and charged institutional subscribers approximately $138,000 per year to access the data online. (An overnight data-tape delivery service was also available, for the comparative bargain price of $78,000 per year.)38
These documents have immense public value. They are the primary sources that journalists, investors, public watchdogs, and others use to gauge public companies’ financial health, evaluate their business strategies, and detect potential corporate malfeasance. The good stuff appears in the SEC filings, not because these companies want to reveal their data but because they must. When Malamud and others started wondering publicly why the SEC didn’t just put the disclosure documents online for free, one of the responses they received was that the SEC was worried that doing so might ruin the market for the services provided by their commercial data contractors.39
Existing contracts and relationships with private firms had fostered the sort of disconnect between the government and the public that Lawrence Lessig would later decry. Though the SEC database was comprised of public data, the agency persisted in treating it as proprietary information. “The SEC database is not a product, but the way that investors are informed of the status of public corporations so they may direct their investment dollars to the proper place,” Malamud wrote in 1997. “Large government databases are not products; they are the very fuel that makes an information economy function properly.”40
Since the SEC filings were public data, once they were purchased from Mead they could be redistributed freely and legally. Theoretically, nothing could stop Malamud from subscribing to EDGAR and then posting every document for free online. And that’s just what he did. He obtained a grant to purchase the data tapes of all SEC filings—the $78,000 option—and, starting in 1994, posted those filings on his website.41 Gradually, the database found an audience. Then, in August 1995, Malamud announced that he would cease updating the free SEC database in October of that year.
“We weren’t running the SEC database because we wanted to be in the database business; we wanted the SEC itself to provide free public access to its information,” Malamud later related.42 The announcement had its intended effect. Eventually, facing public outrage over the vanishing resource, the SEC conceded and agreed to take over Malamud’s project.
Malamud spent the next fifteen years deploying similar tactics with other, similarly recalcitrant government agencies and offices. Though his targets changed, his position remained constant: public data belongs to the public, and the government should not unnecessarily restrict the public from accessing that data. In a 2001 New York Times article about Malamud, a friend, Paul Vixie, spoke approvingly of the archivist’s work: “Often, he succeeds at what I think his primary goal should be, which is to change the world.”43
In 2007, with funding from Google, Yahoo, the Omidyar Network, and other donors, Malamud launched his biggest shot yet at effecting this change. He established a nonprofit website called public.resource.org, which was intended to host public-domain data sets of all sorts.44 Not long thereafter, the intrepid archivist announced yet another guerilla data campaign, this time to be waged against a federal database called Public Access to Court Electronic Records, or PACER.
The database, which was created by the US federal court system in 1988, is a comprehensive online archive of federal court documents: millions of motions, transcripts, affidavits, all searchable and downloadable. PACER is an invaluable resource for researche
rs, who, rather than having to rummage courthouse archives for the files they need, can access that material from the comfort of their own homes. This convenience comes at a cost, though: PACER users must pay ten cents for every page they access. (The fee is only assessed if more than $15 worth of charges is accrued in a given quarter.)
Ten cents per page is not an exorbitant price, in either absolute or relative terms. The statutes supervising Court Fees for Electronic Access to Information, 28 US Code § 1913, specify that the court system can “prescribe reasonable [access] fees,” but “only to the extent necessary” to “reimburse expenses incurred in providing these services.”45 In practice, though, the yearly revenue generated by PACER exceeds maintenance costs.46 The surplus income has been spent on other things: installing flat-screen monitors and speakers in federal courtrooms, for instance.47
The fees and the surplus income notwithstanding, the court records are online and accessible, and that is a legitimate accomplishment, especially considering other federal agencies’ reticence to digitize their data. “PACER is the greatest technological achievement in the court system in the last twenty years,” a spokesman for the US Courts would later boast to Wired.48
Malamud disagreed. “The PACER system is the most broken part of our federal legal mechanism,” he told Wired. “They have a mainframe mentality.”49 To Malamud, PACER was “a classic old-fashioned ‘big iron’ project with tons of big computers and loads of contractors,” which inherently generated bloat and inefficiency.50 There were easier ways to get federal court records to the people who needed them, he felt. And there ought to be a way to make all that PACER data available online for free.
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