When I first became aware of Aaron Swartz about a year ago, I really felt like a dope. I had reported a story for the Prospect about online piracy, and so joined the foolhardy who ponder what the digital age meant for copyright law’s central tension—the vital act of sharing information versus the fair expectation of artists, intellectuals, and entertainers to be compensated when their creations get shared. I understood at least this much: The Internet had essentially reduced the cost of reproduction to zero (which heavily favored information, and seriously distressed creators) and in doing so, exploded an already fraught arrangement into atomic complexity. But I also thought I’d identified one clear-cut foe of intellectual freedom. Countless times foraging online for story ideas, I’d land on a journal article that I knew revealed a conceptual plain ripe for the cultivating powers of hard-hitting reporting, only to find all but the first page locked within JSTOR, a digital library of more than a thousand academic journals.
JSTOR! Once it occurred to me, I ranted to anyone who’d listen about the gross injustice of JSTOR. This vault held the world’s most important scholarship; scholarship originally researched, written, and published for free. Only the privileged at institutions that annually doled out five-figure sums had access. After my piracy piece ran, I met someone at a bachelor party who had read it, and whose kind response prompted a well-rehearsed denunciation of what I may or may not have alluded to as the 21st century’s William H. Vanderbilt. After some cautious agreement, he stopped me, “You know who Aaron Swartz is, right?”
I’m sorry, who?
Calling Aaron Swartz a prodigy is an understatement. At 14, he was a major author of the RSS feed, and at 19 merged his software startup with Reddit, which sold a year later to the magazine publisher Condé Nast (my employer) for an estimated $5 million. He spent a year as an undergraduate at Stanford, but quickly grew disillusioned with the university’s lack of intellectual rigor. He left to crusade full-time for the Open Source and Free Culture Movements, related causes that believe software and other creative works should be freely transferable on the Internet. He launched a pair of prominent nonprofits, and his rising star status as an online activist wunderkind earned him a fellowship at Harvard University’s Center for Ethics. The center’s director, Lawrence Lessig, is the undisputed godfather of the Free Culture Movement, and quickly became Swartz’s close friend and mentor.
While living in Cambridge in September 2010, Swartz connected a new Acer laptop, which he’d designated “Gary Host’s” computer, to MIT’s server, and ran a computer script he’d written to download the entire JSTOR catalog. Over the next couple of months, he downloaded nearly five million articles, averting multiple attempts by the university’s IT department to shut down his operation. Campus police finally spotted him trying to retrieve the laptop in January 2011, and legal drama quickly displaced his activist adventuring.
Carmen Ortiz, the prosecutor assigned the case at the U.S. Attorney’s Office in Massachusetts, proved the perfect minor villain for the exacting world of online activism. Oritz characterized Swartz as a dangerous master hacker, and then reportedly likened his actions to a common thug using a crowbar to burgle a house. JSTOR, much to its credit, declined to press charges, while MIT was less clear about its position. Ortiz took it upon herself to charge Swartz on 13 counts of fraud, criminal forfeiture, and obtaining information from a protected computer, which threatened to land him in prison for 35 years. By all accounts, Swartz’s actions on the MIT campus were intended as a statement, not a petty theft for financial gain. Perhaps the most troubling fact for many observers, though, was that Swartz never actually distributed any of the documents. His assumed intent seemed to inflame the prosecution nonetheless.
Reading about Swartz’s attempt to crack open JSTOR was at once thrilling and humbling. Swartz and I, and surely many others, felt aggrieved that the technological infrastructure was in place for everyone to access the world’s greatest minds, and yet, somehow, we still couldn’t. Swartz had the rare gifts to unilaterally do something about it, and he very cleverly did it. There was some debate in the press, and even among advocates for Internet Freedom, about Swartz’s methods, but almost everyone agreed the Justice Department had gone too far in going after him. I'd rather set aside the criminality of the act; here was someone who could think a problem through to a solution. That put him in a special category of thoughtful citizenship: he was a change agent.
Last Friday, with his JSTOR trial pending, Swartz hanged himself in his Brooklyn apartment. He was 26 years old.
That the Justice Department would try to lock Swartz up for half his life on what amounted to a nonviolent act of protest suggests it too saw his capacity to effect change. He was to be a model of deterrence. So much more in the way of information sharing is possible than what the laws of intellectual property allow. Only punitive examples can keep the enterprising and curious from unlocking content that delights and stimulates millions. In a statement posted online following his death, Swartz’s family wrote: “Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach.” At Swarz’s funeral yesterday morning, his father said his son was “killed by the government.”
In his eulogy to Swartz, Lessig implored, “Please don’t pathologize this story.” Swartz suffered from depression, which certainly facilitated his suicide, but he was also a brilliant programmer, all too keyed-in to the tactics of command sequencing. In his "Guerilla Open Access Manifesto," Swartz encouraged readers (especially gatekeepers of information like students, librarians, academics, and scientists) to, "in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture." If the prosecution intended to exploit his case to prevent this type of lawlessness, Swartz may have thought his fatal play the perfect counter.
Which leaves the next move to the rest of us. Many academics now routinely upload PDFs of new papers to open-access platforms, like the Social Science Research Network and the Public Library of Science. Artists, teachers, journalists, computer programmers, even government agencies are registering new works through Creative Commons, a free licensing agreement that Lessig founded, and Swartz helped develop and promote. A year ago, Swartz, alongside a strident online coalition, which included many of the economy’s new heavy hitters, like Google and Wikipedia, successfully opposed two pieces of copyright legislation that would have restricted much of what we still share on the Internet. And yes, last month, JSTOR announced it would allow registered users to access many of its articles for free. Perhaps these incremental gains, accomplished on behalf of the passionate and inquisitive, will eventually shift the burden of proof to those who try to block the open flow of information. Maybe that will force a reconsideration of the terms of copyright, and all the information and content that came before will be available to everyone as well.
There’s still much more to be said about prosecutorial “example-setting” in cyber crimes, particularly as the case of Bradley Manning unfolds. Even for first offenders, the Computer Fraud and Abuse Act—the statute behind Swartz’s prosecution—allows punishments of up to five years for every count of unauthorized access to a protected computer. The Justice Department has encouraged Congress to pass even harsher cybersecurity-sentencing laws to protect “America’s New Frontier.” That’s the frontier where the Occupy Movement hoped to see promised deliverance from the international hacker collective, Anonymous. An elaborate cyber statement never came, but the piqued anticipation, the rapidity with which Anonymous’s trademark Guy Fawkes mask became a symbol of Occupy, and Homeland Security’s vigilant monitoring of Anonymous during the demonstrations, all attest to a fresh understanding that the most startling acts of resistance can be committed online. The sphere of protest is not moving completely off the campus quad and onto the campus server; the two frames have simply become one. A serious and much more frequently held conversation is required to ethically deal with the consequences of that.
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