The United States Federal Government does a lot with tax dollars. One of those things is that it funds research in many areas that lead to published papers in basic science, medicine, engineering, and many more fields. Another is that it runs the Federal Court system, which publishes orders, rules, opinions, and the like. What do all of these publications have in common?  It’s that even though your tax dollars paid to create them in the first place, you will almost certainly have to pay again if you want to read them. You may pay a journal publisher thousands of dollars per year for a subscription, or pay $20-$45 for a copy of a single article.  You may pay 10¢ per page to PACER, the online court system operated by the government, but you’ll pay.

Some argue that if tax dollars are used to create a document, then taxpayers should not have to pay to read it.  Certainly, this was the argument of young Aaron Swartz, when he downloaded a significant slice of the PACER database and put it online for free. He also argued that the JSTOR database of articles was largely the result of publicly funded work, and should be freely available. JSTOR, a nonprofit organization, is a database of scholarly publications, including thousands journals that cost thousands of dollars each per year in subscription fees – and that publish taxpayer-funded research.

According to the famous “hacker ethic”, information wants to be free.  This ideal, often in conflict with the proprietary rights regimes of patent and copyright, sets in motion a conflict that, in the case of Mr. Swartz, led to his prosecution and the threat of crushing legal fees, heavy fines, and a potential prison sentence far longer than if he had killed someone while driving under the influence of alcohol. In the face of these penalties, Mr. Swartz, age 26, took his own life.

The hacktivist group “Anonymous” has expressed its collective disgust with this situation using its recognizable Guy Fawkes masked persona, by inserting a message onto the website of the Federal Sentencing Commission. Their message, hacked into the website stated, in part,

There must be reform of outdated and poorly-envisioned legislation, written to be so broadly applied as to make a felony crime out of violation of terms of service, creating in effect vast swathes of crimes, and allowing for selective punishment. There must be reform of mandatory minimum sentencing. There must be a return to proportionality of punishment with respect to actual harm caused, and consideration of motive and mens rea. The inalienable right to a presumption of innocence and the recourse to trial and possibility of exoneration must be returned to its sacred status, and not gambled away by pre-trial bargaining in the face of overwhelming sentences, unaffordable justice and disfavorable odds. Laws must be upheld unselectively, and not used as a weapon of government to make examples of those it deems threatening to its power.

This crie de coeur goes beyond making information free, and the delivery method, hacking a website, is, itself, criminal, but the message rings true to those who remember the social activism of the 1960s and who lived through the Pentagon Papers, Watergate and Iran Contra. Even some intellectual property attorneys (but not many) have come to recognize that our present laws punish what used to be considered artistic creativity, and thus impoverish our culture and our civil discourse.

Perhaps the young Congressional staffer who suggested that we rebalance the interests of publishers and the public they used to serve was on the right track after all – just before he was fired for suggesting that copyrights ought to be a bit shorter than a century!

Lawrence A. Husick Esq.