[3][4][5] JSTOR is a digital repository that archives − and disseminates online − manuscripts, GIS systems, scanned plant specimens and content from academic journal articles.
[7] According to state and federal authorities, Swartz downloaded a large number[i] of academic journal articles from JSTOR through MIT's computer network, over the course of a few weeks in late 2010 and early 2011.
[24][25] On December 16, 2011, the district attorney's office filed a nolle prosequi declaration in the case generated by Swartz's initial January 6, 2011, arrest.
[26] A report later submitted to the president of MIT about the Swartz case suggests, however, that Massachusetts state law required the Middlesex district attorney to dismiss the charges after the Boston U.S.
"[28] After the publication of his Massachusetts Lawyers' Weekly piece, Silverglate explained to CNET's Declan McCullagh that if the defendant manages to stay out of further legal trouble after such a continuance, the case is typically dismissed.
According to Verge reporter Jeff Blagdon[30] and the Huffington Post,[31] federal rather than local prosecutors had been "calling the shots" on the prosecution of the case since Swartz's arrest.
I couldn't imagine that these people who had just claimed to have read everything I'd ever written had never looked at their target's blog, which appeared in his FBI file, or searched for what he thought about "open access."
[3][23] According to the indictment, Swartz surreptitiously attached a laptop to MIT's computer network, which ran a script named "keepgrabbing.py",[3][18] allowing him to "rapidly download an extraordinary volume of articles from JSTOR.
[36] After his arrest, JSTOR released a statement saying that though it considered Swartz's access to be a "significant misuse" committed in an "unauthorized fashion," it would not pursue civil litigation against him;[10][36] MIT did not comment on the proceedings.
[37] The New York Times wrote of the case: "a respected Harvard researcher who also is an Internet folk hero has been arrested in Boston on charges related to computer hacking, which are based on allegations that he downloaded articles that he was entitled to get free.
[1][42] George Washington University Law School Professor Orin Kerr, writing on the legal blog Volokh Conspiracy, opined that the risk of a maximum sentence in Swartz's case was not high.
The "Register & Read" service, in beta for the previous 10 months, was capped at three articles every two weeks (78 per year), readable online only, with some downloadable for a fee.
"[54] Former Nixon White House counsel John Dean wrote an article on the legal blog justia.com entitled "Dealing with Aaron Swartz in the Nixonian Tradition: Overzealous Overcharging Leads to a Tragic Result", saying "these are not people who are conscientiously and fairly upholding our federal laws.
"[58] In response to a piece by Larissa MacFarquhar in the New Yorker, retired journalist Jane Scholz objected to what she perceived as an effort "to turn Swartz into a hero for facing government prosecution after hacking the JSTOR archive", arguing that "Swartz was apparently familiar with laws protecting proprietary-information-management systems, so he should not have been surprised by the severity of the prosecution's response to his crime.
Law professor Mike Maddison commented on Scholz's letter: "it is difficult to find a better example of the glib equation of 'my career isn't the success that it once was' and 'somebody committed a crime' that infects contemporary dialogues about IP rights.
"[59] David Aaronovitch noted in The Times that JSTOR was itself a "product of philanthropy" but that it had to charge access fees so that it could pay academic publishers for rights to their publications.
[60] In contrast, Peter Ludlow in The Chronicle of Higher Education argued that due to the publish or perish nature of academia and the importance that journals' reputations have, "[w]hen an academic signs away copyright to an academic publisher, it amounts to a 'contract of adhesion'—meaning a contract in which one party has all the power and it was not freely bargained" and that "like the original authors, JSTOR had to negotiate its licensing agreements from a position of weakness", which Ludlow illustrated with a bargaining agreement from JSTOR's history, which stipulated that the publishers "be compensated if there was a loss to their (minimal) sales of rights to older materials, and they demanded compensation even before JSTOR covered its own expenses".
Ludlow concluded that "Until academics get their acts together and start using new modes of publication, we need to recognize that actions like Aaron Swartz's civil disobedience are legitimate.
The great ones almost always operate at the edge" writes Wu, in support of this thesis that "We can rightly judge a society by how it treats its eccentrics and deviant geniuses—and by that measure, we have utterly failed [in the case of Swartz].
"[64] After Boyle's Huffington Post column, Kerr returned to the topic, advocating reform of the Computer Fraud and Abuse Act (CFAA) under which Swartz was prosecuted.
"[66] Jennifer Granick, Director of Civil Liberties at the Stanford Center for Internet and Society, both defended Swartz and challenged the scope of the law under which he was prosecuted.
[67][68] Law professor Stephen L. Carter agrees that the prosecution of Swartz was ridiculous, but also lays the blame on Congress for creating a new type of federal felony roughly every week.
Alex Kozinski, chief judge of the U.S. Court of Appeals for the Ninth Circuit, warned in an opinion last spring [of 2012] the government's position 'would make criminals of large groups of people who would have little reason to suspect they are committing a federal crime.
[75] Carmen Ortiz's husband, IBM executive Tom Dolan, replied through his own Twitter feed, @TomJDolan, "Truly incredible that in their own son's obit they blame others for his death and make no mention of the 6 month offer.
"[76] In Esquire, Charlie Pierce wrote that "the glibness with which her husband and her defenders toss off a 'mere' six months in federal prison, low-security or not, is a further indication that something is seriously out of whack with the way our prosecutors think these days.
[78] On January 16, 2013, Ortiz released an official statement, in which she reiterated that "I must, however, make clear that this office's conduct was appropriate in bringing and handling this case," and that her subordinates "took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably.
[79] In an opinion piece for Wired magazine, they wrote that "This is, in fact, what happened to Aaron Swartz — more than a third of the charges in the superseding indictment against him were under this redundant CFAA provision.
[32][81]On March 15, the lawyers asked the federal court to modify the protective order on Swartz's file to permit public disclosure of the discovery materials, including the names and titles of MIT, JSTOR and law enforcement employees.
"[82] The First Assistant U.S. Attorney for Massachusetts, Jack Pirozzolo, said he was taking a role in the discussions and would be asking the court to give the affected employees an opportunity to be heard on the proposed disclosures.
The estate's argument for disclosure of these names was "substantially outweighed by the interest of the government and the victims in shielding their employees from potential retaliation," wrote Judge Nathaniel Gorton.