[ScottBurson]

My understanding is that the articles Aaron downloaded and intended to distribute were in the public domain. I suppose one could make a case that the scans of those articles that JSTOR had prepared at its own expense were not in the public domain, but even if copyright law supports such a distinction, which I'm not sure it does, it seems to me that the worst crime Aaron would have commmitted would have been copyright violation -- a civil matter, and not one, AFAIK, that the US Secret Service routinely gets involved in.

In short, if Aaron had scanned the same articles and made them available on his own server, he would have been in the clear. Here's an interesting analysis from well before Aaron's death: http://www.theawl.com/2011/08/was-aaron-swartz-stealing

[sociotech]

No, no. Some of the articles were in the public domain, but not all of them. (The precise ratio could have been a relevant fact at sentencing for some of the charges, because it would speak to the monetary value of what his actions threatened to publicize in violation of copyright law.) Copyright violation is routinely both a civil and a criminal manner.

He would not have been in the clear if he scanned and publicized the articles himself.

[ScottBurson]

I said, "the articles he downloaded and intended to distribute". There is some suggestion he only intended to distribute the public domain ones. Of course, this might be hard to prove in court.

[sociotech]

If the government couldn't prove beyond a reasonable doubt that he intended to distribute the public-domain part of the archive, he would have won the largest part of his case, or at least received a very minimal sentence (with no prison time).