Last month, Aaron Swartz, a 24-year-old digital activist, internet analyst and anti-corruption researcher, was criminally indicted by a grand jury in Massachusetts for downloading millions of articles from the research database JSTOR. If convicted he faces a fine of up to a million dollars and a prison sentence of up to 35 years. ‘Stealing is stealing,’ the district attorney said, ‘whether you use a computer command or a crowbar, and whether you take documents, data or dollars.’

Between 24 September 2010 and 6 January 2011, Swartz, then a fellow at Harvard’s Edmond J. Safra Center for Ethics, is said to have used a guest account at MIT to access JSTOR and automatically download nearly five million articles. At one point the JSTOR servers crashed; they later blocked access from all MIT users. Swartz is alleged to have deliberately evaded identification and capture by JSTOR and MIT, both physically – hiding his laptop in a computer wiring closet at MIT, concealing his face with a bicycle helmet, and fleeing when approached by MIT campus security – and electronically: changing the laptop’s digital addresses, registering his MIT guest account under false name and using a ‘throwaway’ email address.

The DA’s press release calls Swartz a ‘hacker’, but he hasn’t been accused of hacking (now or ever). The indictment repeatedly accuses him of ‘stealing... with the purpose of distributing through file-sharing sites’, but brings no formal charges of theft against him, or of copyright infringement. Swartz has been charged with wire fraud, computer fraud, unlawfully obtaining information from a protected computer and recklessly damaging a protected computer, though JSTOR have said that they have ‘no interest’ in pursuing the matter further. In 1995, US courts dismissed a similar federal case brought against an MIT student, David LaMacchia (whom the DA also called a ‘hacker’), on the basis that the wire fraud statute and copyright law did not apply to non-profitable internet activity. Swartz has pleaded not guilty on all counts. The trial is set to begin on 9 September.

As Adam Penenberg has written, the definition of ‘hacker’ is contentious and unsettled, and law enforcement bodies have an obvious interest in making it as broad as possible. But Swartz’s alleged actions should probably be seen not as a form of criminal hacking, but as a form of civil disobedience in support of the open access movement for making research publications more widely accessible.

It’s not a fringe position: the Wellcome Trust now ‘supports unrestricted access to the published output of research as a fundamental part of its charitable mission and a public benefit to be encouraged wherever possible’. Writing in the LRB in 1999, John Sutherland called scholarly publishing a ‘sweet deal’ for large commercial publishers that do not pay for the cost of the scholarly research but effectively sell it back to the institutions that do – universities with ever-shrinking library budgets. Since September 2009, a growing number of institutions – including CERN, MIT, and Harvard – have signed the Compact for Open-Access Publishing Equity, committing them to give financial support to open access journals. And MIT isn’t the only university where researchers’ scholarly articles are now automatically designated open access unless they secure special permission to publish elsewhere.

Swartz is apparently the author of the Guerrilla Open Access Manifesto, which rejects the ‘private theft of public culture’, and the inequalities in access to knowledge between affluent nations and the developing world, or between members of elite research institutions and ordinary citizens. In protest at Swartz’s indictment, a user (or should that be ‘hacker’?) called Gregory Maxwell posted more than 18,000 out-of-copyright articles from JSTOR on the Pirate Bay, denouncing the ‘dead business models’ that ‘suppress scientific and historic understanding’.

Others in the open access movement, however, are more cautious: as Peter Suber, the editor of Open Access News, has observed, lawful tactics that ‘push the envelope’ may be effective, but commercial publishers are likely to benefit from misunderstandings and misperceptions around the issues and the legislation. A high-profile criminal prosecution of a ‘hacker’ for ‘stealing’ journal articles is likely to reinforce the misunderstandings that strengthen the commercial publishers’ hand.

Just before Swartz was indicted, the activist organisation Demand Progress, which he founded, was leading a campaign against Senate Bill 978, which proposes tightening the laws against online copyright infringement.

Meanwhile in Britain, Richard O’Dwyer, a student at Sheffield Hallam who ran the video-linking site TVShack.net, faces extradition to the US. TVShack did not host any copyrighted content, but provided links to other websites that did. The US prosecution’s claim of jurisdiction, or ‘nexus to the US’, rests on O’Dwyer’s use of the domain name .net: none of the TVShack servers were in the US, O’Dwyer is a British citizen operating in the UK, and a similar case against a site called TV-Links.co.uk was dismissed by the English courts in 2010.

WikiLeaks has so far evaded criminal charges for publishing leaked US diplomatic cables because of a lack of relevant legislation. Julian Assange is not a US citizen; WikiLeaks and its mirror sites don’t operate from US servers; and neither WikiLeaks nor Assange carried out any ‘hacking’ to obtain the classified information. The so-called Shield Bill, however, would make any repeat of Cablegate illegal.

The open access movement clearly has some way to go.