RIP Aaron Swartz

An enormous system of legal and commercial machinery (i) makes it possible for you to read this, or to read anything, or to listen to music or see a show, and (ii) makes it worthwhile for anyone to provide it for you.  This machinery was created by some of the most brilliant minds in the law, government, and business, but they made it for a world that no longer exists.

When industrial machinery breaks, it produces less, or worse, stuff, and sometimes it maims or kills workers.  The machinery of intellectual property worked more or less well until about thirty years ago, despite wrenches like mindless and venal copyright extension to make Disney heirs even richer being thrown into it.  That machinery has not, however, survived being tasked to process digital content, which has broken teeth off its gears, garbled its control system, and clogged its conveyor network.   Stuff is falling out of the system to be swept up as trash, lost in transit, delivered broken or with parts missing, sent to the wrong recipients, and it’s piling up in warehouses where no-one can use it.  Half-finished goods sit, sometimes forever, waiting for essential parts.  The waste of the most precious stuff in the world is bad enough, and the prices my students are paying for textbooks (and for my services) are bad enough, but today we learned that the malfunctioning machinery has killed a worker, and not just any worker but a genius engineer, and philanthropist in the best sense of the word, who had only begun to design priceless parts of it.

Aaron Swartz’s death isn’t just  overreach or judgment error by a Boston judge and prosecutor, though if either of them ever again  dines with anyone whose cultural competence is higher than a Big Mac it will be an outrage.  It was an industrial accident caused by ongoing, feckless, reckless failure to maintain the intellectual property machinery, a core piece of social infrastructure being run into the ground for greed (no, not for efficient price signals) by the ignorant, the frightened, and the incompetent.  The reasoning of the captains of this industry, as their sales fall, bookstores close, newspapers shrink and close, and our best musicians wait on tables,  goes as follows: “It’s our property, shut up!”  It is a failure of the law to accommodate reality.

Aaron isn’t the only casualty of this system, either: people are dying all over the world for want of drugs trapped in the patent system.  Maybe we should think of him as channeling Mario Savio: “There’s a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can’t take part! ….you’ve got to put your bodies upon the gears and upon the wheels…upon the levers, upon all the apparatus, and …make it stop!”

Joe Hill would say, “Don’t mourn for Aaron, organize!”  We need Aaron’s Law, a reform of intellectual property law that recognizes the world the way it is, more than we need anything except climate stabilization; indeed, if we don’t get Aaron’s Law we will not be able to do the politics (or the science) that could save the planet, or whatever your favorite piece of collective work may be. If you read, write, sing, listen, or think, you will be talking about this with your other friends who do those things and watch for a chance to get engaged.  I’m looking, too, and when I find some, I’ll post them here. [minor edits 9:16PM PST 12/I/13]

Author: Michael O'Hare

Professor of Public Policy at the Goldman School of Public Policy, University of California, Berkeley, Michael O'Hare was raised in New York City and trained at Harvard as an architect and structural engineer. Diverted from an honest career designing buildings by the offer of a job in which he could think about anything he wanted to and spend his time with very smart and curious young people, he fell among economists and such like, and continues to benefit from their generosity with on-the-job social science training. He has followed the process and principles of design into "nonphysical environments" such as production processes in organizations, regulation, and information management and published a variety of research in environmental policy, government policy towards the arts, and management, with special interests in energy, facility siting, information and perceptions in public choice and work environments, and policy design. His current research is focused on transportation biofuels and their effects on global land use, food security, and international trade; regulatory policy in the face of scientific uncertainty; and, after a three-decade hiatus, on NIMBY conflicts afflicting high speed rail right-of-way and nuclear waste disposal sites. He is also a regular writer on pedagogy, especially teaching in professional education, and co-edited the "Curriculum and Case Notes" section of the Journal of Policy Analysis and Management. Between faculty appointments at the MIT Department of Urban Studies and Planning and the John F. Kennedy School of Government at Harvard, he was director of policy analysis at the Massachusetts Executive Office of Environmental Affairs. He has had visiting appointments at Università Bocconi in Milan and the National University of Singapore and teaches regularly in the Goldman School's executive (mid-career) programs. At GSPP, O'Hare has taught a studio course in Program and Policy Design, Arts and Cultural Policy, Public Management, the pedagogy course for graduate student instructors, Quantitative Methods, Environmental Policy, and the introduction to public policy for its undergraduate minor, which he supervises. Generally, he considers himself the school's resident expert in any subject in which there is no such thing as real expertise (a recent project concerned the governance and design of California county fairs), but is secure in the distinction of being the only faculty member with a metal lathe in his basement and a 4×5 Ebony view camera. At the moment, he would rather be making something with his hands than writing this blurb.

53 thoughts on “RIP Aaron Swartz”

  1. aaron schwartz, a child prodigy of reddit fame, dared to ask why people have to pay for PACER court files when these public court documents were already paid for by taxpayers and why already published scientific articles weren’t free. so massachusetts prosecutors sought to make him pay with the pain of facing 35 years in prison for “stealing” these articles. but like wikileaks, aaron tried to expose the secrets of our complex world by setting these articles “free” so all could read. if aaron’s tragic suicide resulted from his depression over facing a trial and unrelenting prosecutors, maybe DOJ, Congress or the Courts should take a hard look at the boundaries of prosecutorial discretion which the §9-2.001 of u.s. attorney’s manual says “The USA is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority.” maybe broadest is necessary but is not always best.

  2. I am nowhere near him in talent or goodness, but I have had the experience of brushing up against the machine and seeing that, yes, it cares nothing for anything other than profit.

    A few years after becoming an attorney at age 43, I learned how the legal/public notice system “works” in America, and was dumbfounded. Essentially, every state has a mass of was that require each and every state and local agency, county and municipality to give the public fair notice of upcoming events, request for proposals, elections, rezonings, ordinance changes, foreclosures (tsunami alert!), etc etc etc. And many private citizens are occasionally required to publish such notices as well.

    This is a good thing. In a democracy, you want government to be open and transparent.

    Which s why, in every state, the IT revolution has been a godsend. The interwebs allow everyone who speaks or reads any common language to dial into a single website and, with just a few clicks, read public notices in their native language or, if they are illiterate, to hear it read by a native speaker; hotlinks lead to definitions of confusing legal jargon in lay terms; notices about real property come with rich maps and overlays so that the notices are truly effective at explaining what is proposed. Notices about People being sought for service of process allow anyone to go to the complaints without having to go to the courthouse. best of all, the revenue generated by this system amply funds legal aid services in every state, even though the costs of publishing notices to public agencies and individuals hav been slashed.

    Hahahahahahaha! Just kidding! PSYCH!

    Of course we don’t have any of that. Legal notices are still tiny mice type ads of black English-only words printed on dead trees in the classifieds, published only in the smallest paper in each county that still manages to qualify as a paper “of general circulation in the county.”. Which usually means a tiny rag published in a second or third-tier town in a county in which a major city exists, a rag that enjoys an absolute monopoly and prices accordingly. The newspaper publishers in Oregon even got their monopoly dobly hardwired in the law, by getting their legislative minions in Salem to pass a law so that, even if you wanted to start the New York Times of Oregon here, you could not accept legal notice advertising until you had been a paper with audited circulation for at least a year.

    I proposed a new, centralized legal notice system, all online, with all the benefits outlined above and many others, with significant savings to governments (and the ability to provide notices for free to indigent persons) WITH backstops to provide redundant options to get more and better notices to anyone, even those without Internet or computers (what is a touch tone phone if not a device for telling computers what to do at a distance). It’s a wonderful idea, and the more time you spend on it, the more possibilities you see.

    The newspaper publishers have so intimidated the bar that the board of governors — the leaders of a quasi-governmental nonprofit whose core mission includes enhancing access to justice — couldn’t bring themselves to endorse the idea. I had to go to the house of delegates to get a resolution telling the governors to reconsider it, which they’re now doing– even though the only real issue is that the newspapers don’t want to stop doing a crappy job for outrageous profits (three random sample months suggest that legal notice in OREGON alone put $30 million per year into the pockets of the handful of companies whose papers publish the vast bulk of the notices. Even if that figured is 3x normal because of the foreclosure tsunami, we’re still talking $10mm/yr that could be going to enhanced access to justice and providing legal notices people can actually find and read without a magnifying glass).

    I guess the message I’ve received loud and clear is that these companies do not care one whit about anything other than their bottom lines, and all their editorials … about the importance of smarter government that innovates and how it’s crucial that government be run like a business, and be willing to innovate … Are just hypocritical bs.

  3. Hi Michael:. You wrote “Aaron isn’t the only casualty of this system, either: people are dying all over the world for want of drugs trapped in the patent system.”

    Are you referring to particular drugs that you think should have their patent removed for emergency public health reasons or are you saying no one should able to patent a medication? If the latter I have to disagree. In my field, mental health and addiction, pharma companies are already disinvesting because of the low profits for stigmatized disorders — removal of patent would be the death knell to what little remains. And if think the public sector can take up the slack, recall that the entire annual budgets of NIDA plus NIAAA plus NIMH is enough to bring at most 2-3 medications to market a year, presuming they cancel their entire grant and education programs and did nothing but that (which would be tragedy in a hundred other ways).

    1. “at most 2-3 medications a year”: isn’t that roughly what Big Pharma is producing now? I mean real new compounds, not fiddling at the edges.
      One casualty of the patent research model is transparency. Big Pharma labs work competitively and in secret, like Hitler’s fragmented atom bomb teams. It would be much more efficient if they shared information, as do public-sector teams working for DARPA or the NIH or Wellcome.
      We need a plan B for pharma research funding, not scrapping the current broken model without a replacement.

      1. There are more than that every year just for oncology and for that matter for conditions for which no other medication exists.

        You went Godwin on the system we have, but didn’t offer an alternative — what is it? Having served on NIH committees designed to review the portfolio of institutes, I am not optimistic that a central committee can order scientists it controls to innovate more effectively than do thousands of government supported but not controlled independent scientists in the public and private sector. Nobel Prizes for intramural work happen, but they are rare.

        1. The NIH is a public agency. Wellcome is a charity; I could have cited Gates. If you get rid of drug patents, you would need a large expansion of the public and philanthropic models. This is clearly feasible, if unlikely.

          My source on drug innovation is the (controversial) Marcia Angell. From her 2004 NYEB article:

          Of the seventy-eight drugs approved by the FDA in 2002, only seventeen contained new active ingredients, and only seven of these were classified by the FDA as improvements over older drugs. The other seventy-one drugs approved that year were variations of old drugs or deemed no better than drugs already on the market. In other words, they were me-too drugs. Seven of seventy-eight is not much of a yield. Furthermore, of those seven, not one came from a major US drug company.

          Seven is, I admit, more than one or two. I’ll look for more recent data on the controversy.

          That said, the patent system is nowhere near as broken as the copyright one. The life is still reasonable (20-22 years), costs filers something, and they have to prove innovation, though patent offices have been getting too slack in checking it (eg business methods). Violations are pursued as torts in civil actions, not prosecuted as crimes. Copyright is automatic, free, and ever-extended, the clear goal being perpetual rents, and has captured the criminal law for essentially civil violations. But patenting also impose economic costs, for instance the way thickets of defensive patents by incumbents create barriers to entry into high-tech sectors.

          1. Interesting proposal. I’m trying to figure out what it means that a government that makes and controls patent law is considering circumventing the law by buying and freeing patents instead of amending the law to achieve it’s goal. It seems sort of like buying and freeing slaves a handful at a time as an alternative to proclaiming their emancipation (which of course was done before emancipation, but not by the federal government itself AFAIK).

  4. If media reports are accurate, then Aaron Swartz killed himself. Or, if you like, his sickness killed him. Apparently he had a history of clinical depression. Mark’s observation that he seemed “remarkably calm” is consistent with that kind of history. His legal troubles might have precipitated his suicide or they might not have. In any case, if the government allegations are correct, he brought the whole thing on himself.

    Some of the issues that have been brought up:

    There is no single “intellectual property” system in the US. Intellectual property law comprises several different areas of law, the most important of which are patents, copyrights, and trademarks. The laws governing these areas vary widely, as is fitting, because the characteristics of the property being governed are very different. Sometimes there’s a little bit of overlap — computer software isn’t an easy fit for either patent or copyright law, and consequently is governed by both.

    Patent law can and does work to either promote or stifle innovation. Pharm companies, without some kind of protection, there will be no incentive to develop the drugs in the first place. If the patents are issued too broadly, then it would be harder to build on somebody else’s idea. There are plenty of debates about to reform patent law, and I don’t know enough to have a strong opinion about the best way to do it.

    Copyright law, for the most part, works just fine in protecting what it’s intended to protect — books, phonographic records, and motion pictures. It does what the Constitution says it’s supposed to do, “promote the progress of Science and useful arts.” Another reason for copyright (not specifically in the Constitution, but this was certainly part of the thinking) is that an individual is entitled to the fruits of his or her own labor. Copyright means that if I write a book, some big corporation (or small corporation, for that matter) can’t take the book without my permission and sell copies of it to make money. Copyright protection (“the right of authors”) is also a basic human right enshrined in the Universal Declaration of Human Rights.

    Some people are saying, copyright law is stifling my creativity because (for example) it won’t let me publish my own Batman comic book. Well, to those people I would say, make up your own costumed superhero and you can make him do whatever you want him to do. Wouldn’t that be more creative than using somebody else’s property?

    Mark’s point that the JSTOR article ought to be available to everybody, not just those affiliated with member universities, is actually a good one. It’s kind of frustrating that I can’t download the articles from my home PC, but if I hop in my car and drive to the nearby university library I can read whatever I like. A solution, as Mark seems to be suggesting, is to have government pay for such universal access. But I’m not sure why you need to change the copyright laws to do that.

    Textbooks are expensive, and their price seems to be outpacing inflation. But why is this an intellectual property problem? This seems to be a textbook publishing issue. Textbooks have a captive audience; if you sign up for a particular class, you have to get the right book (or books). Therefore, or so the argument goes, the publishers can charge an excessively high price. The problem with this argument is that there is a competitive market for many if not most subjects, and when there is such a thing, the prices are still high. So, even if the student don’t choose what books to buy, the professor or whoever is setting the curriculum will be doing so. Textbooks are indeed, to use Mark’s locution, “rival-consumption goods.”

    If any professor thinks the books are priced higher than they ought to be for the amount of effort that went into them, my suggestion is that you get together with some of your colleagues and put together your own “textbook.” You don’t really need it in a printed form — you can post everything on the web. Every student has computers and web access these days. You could lock it down with a password or leave it open for everybody. If that’s not cost-effective, then don’t complain about the price of textbooks.

    In fact, there was a recent effort to bring laws governing intellectual property in line with modern realities. The House version was the Stop Online Piracy Act (SOPA) and the Senate version was Protect Intellectual Property Act (PIPA). In his post, Mark wrote that “the selling of what ought to be free is a big business.” SOPA and PIPA were went to take action against another big business, giving away free what you really ought to pay for. They would have allowed sites who trafficked in illegally copyrighted materials to be blocked. I can understand why it’s in the public interest to make academic journal articles available to everybody. But it’s hard to construct a public interest argument with such as the movie “Avatar,” which was one of the most popular illegal downloads.

    SOPA and PIPA were stopped by a sleazy disinformation campaign. There are legitimate criticisms, but what we heard was a stream of lies. SOPA/PIPA, it was said, was a web censorship bill, it violated the First Amendment, it allowed Hollywood to control the web, it didn’t allow for due process of law, etc. A reading of either bill would show these claims to be nonsense, but nonetheless the bill was dead.

    One articulate voice in this effort was Aaron Swartz. I’d like to say that his arguments were informed and principled, but they weren’t. He was spitting out the same shit as everybody else. He might have been, in his own way, a philanthropist, and his action here was perhaps motivated by youthful idealism. But part of his legacy will be that he was a part of something very sleazy.

    1. I agree that blame for Swartz’s suicide is being unfairly placed on the fact of his prosecution. Unfortunately, Swartz appears to have had an extensive history of serious depression, and that is probably the explanation for his death.

      Obviously, there is a great deal of controversy regarding the current copyright law. Many, including Swartz, are frustrated that copyright protection prohibits access to certain works which many people believe ought to be free to all. But the relevant issue here isn’t whether the law is “broken” or not; it’s whether deliberate violation of the law should be prosecuted and subject to appropriate punishment. The key principle of civil disobedience is that the individual violating the law should be prepared to accept his or her punishment. If Swartz’s actions were intended as civil disobedience, neither he nor his supporters had justification to complain that he was indicted. If that was not his intention, then he was, in effect, a common thief. The fact that this crime could be described as “victimless” is both inaccurate and irrelevant.

      I feel sorry for Swartz, his family and friends, but the attempt to shift blame for his death to the prosecutors is unfair and inappropriate.

      1. I hold the prosecution blameless for his death, but that does not mean that I think the prosecution did well. To the contrary, even if Aaron Swartz were alive, I’d still think that they are poster children for much of what’s wrong with the US justice system.

        More precisely, I have sincere doubts that the prosecution wrote up its indictment the way it did because society needed to be protected from a dangerous criminal. I saw them going for a career-enhancing high profile case (up to and including the usual abuse of the plea bargain system). Scalp collectors, if you will.

        A reasonable prosecutor would have seen a kid who did something seriously stupid and needed some sense knocked into him. Instead, we have the prosecution bringing the hammer down and going for a felony conviction at a minimum.

        In related news: Why we have ten times as many prisoners in our jails (per capita) as the Netherlands or Germany.

        1. I don’t hold the prosecution blameless. They overreached wildly.

          If you ever catch the eye of a prosecutor, and I hope you never do, you will come to appreciate what a powerful effect that has on you, and how unbalanced the situation is. For the prosecutor it’s all in a day’s work. She does her job, goes home on the weekend, enjoys her holidays and vacations, and collects her paycheck. All routine. For you it drags on, creates massive anxiety, ruins every waking amount, and drains your emotional and financial resources. You can’t get it off your mind.

          For the unfortunate individual lime Swartz, prosecutors are more powerful than Presidents, Governors, legislators at al levels, and everyone else. Sadly, they are way too seldom held accountable for their abuse of that power. It’s absurd to say that threatening someone with a fifty-year jail sentence has no impact on their emotional state.

          1. I’m not sure why you’re thinking that we disagree much. My opinion of the prosecution’s behavior, as I said above, is pretty low.

            I am just not agreeing that it follows that the prosecution is responsible for Aaron Swartz’s death.

          1. I have thankfully never suffered from clinical depression myself, but I have friends who do and am pretty well aware of what that means, thank you very much.

            At the same time, just because someone suffers from clinical depression does not mean that they should be immune from prosecution if they break the law. And, like it or not, Aaron Swartz did break the law. It may be a bad law, but he did get in trouble through his own actions and decisions that he made, consciously and repeatedly.

      2. “Appropriate” is a key word there. Do you think that what Swartz did justified trying to put him in prison for 30+ years? The introduction of harsh criminal penalties into civil offenses is inexcusable overreach in my view. Do you know that the prosecutor was using the draconian interpretation of the law by the Seventh Circuit (later rejected by the Tenth Circuit and not appealed by the Obama adminsitration) that equated a violation of the Terms of Service agreements to the violation of the Computer Fraud and Abuse Act intended to fight hacking?

        Copyright ought to be part of civil law and the government should have nothing to do with it except to provide a legal system (courts, enforcement of payment of damages, etc.) to administer claims brought by private parties. Putting a person in jail for violating copyright, particularly a person who is clearly able to pay damages if required to do so, is ridiculous.

    2. “Or, if you like, his sickness killed him. Apparently he had a history of clinical depression.”

      Would you characterize Turing’s death the same way? Or heck, for that matter, Socrates?

  5. In a significant victory for public access to publlcly funded research, the NIH recently tightened up its rules:

    [The NIH public access policy] requires scientists to submit final peer-reviewed journal manuscripts that arise from NIH funds to the digital archive PubMed Central upon acceptance for publication. To help advance science and improve human health, the Policy requires that these papers are accessible to the public on PubMed Central no later than 12 months after publication.

    Their emphasis. The policy has teeth as it’s tied to the disbursement of funds.

    1. Other funding sources (Hughes, I think also Wellcome) did this a few years ago. It’s a great policy; even better would be finding some way to destroy McMillan, Elsevier, and the other parasites upon the scientific publishing world, for example by a strengthening of PLoS. The policy however applies only to new articles and has little if any effect on the materials JSTOR largely targets, which tend to be older archives that otherwise would not have been digitized, or at least not yet. For example, for years you could access issues of Science from before say 1980 through JSTOR but not through the AAAS, and that’s an example of a high-profile, well-funded journal more able to digitize its own back issues than are many of those JSTOR offers.

  6. It’s sad, and as somebody who suffered from clinical depression, I have a great deal of sympathy. But, just as I would not think my ex-wife would really have been responsible if I’d cut a little deeper that night in the bathtub, I don’t think you can really hold the prosecutor responsible for his suicide.

    Outside of extraordinarily bad circumstances, which even this didn’t rise to, suicide is an irrational act, of an irrational person.

    I think, however, Rachel’s defense of copyright is well over the top; Just as the Constitution says, “promote the progress of Science and useful arts.”, it goes on to say, “by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    When copyrights are endlessly renewed, and last for longer than the author or inventor’s lifetime, the notion that the term is still meaningfully “limited” is a bit of a joke.

    1. The underlying problem stems from the fundamental differences between the Anglo-American and the continental European copyright system and attempts to merge them regardless.

      Modern US copyright is largely the old US version with a duration modeled after the continental European system grafted on, but without all the provisions in the continental European system that make such a long duration more tolerable (also, without all the protections for authors that would give Hollywood a collective heart attack).

    2. Sayin the prosecutor bears some blame is not the same thing as, say, convicting her of murder.

      But when she takes the extreme position she did she is not blameless. Sure, someone not suffering from depression might not have reacted as Swartz did, and a prosecutor acting reasonably would not be blameworthy in any case. I do think the case pushed him along, and given its harshness, I think the prosecution is far from innocent.

  7. I think that it is fair to call the prosecutor and judge the guards of Mauschwitz.

  8. Pharm companies, without some kind of protection, there will be no incentive to develop the drugs in the first place.

    Please stop. As a society, we can collectively come up with rules and incentives to encourage innovation without giving the store away to private interests and creating destructive economic rents.

    1. Pne of the problems with neoliberal and libertarian ideology is that it radically reduces the kinds of things we can think about as solutions to problems. If it can;’t be made to appeal to a sociopath- whether as a CEO or a corporation – it won’t work. Simply not true.

  9. Having paid good money for the privilege of reading the thoughts of multiple posters on this site in the form of published works, I am eagerly awaiting the publication of their next works.

    Given the tenor of their posts, I am sure that these will be published as .pdf files, and will be freely available on this website for all future Aaron Swartzes to download without fear of prosecution.

    And I am sure that said authors will be donating all proceeds from their past works – including advances and royalties – to a PAC committed to reforming the same copyright laws that made these proceeds possible.

    1. I am not a famous writer, but I do publish papers in peer reviewed journals. And I just about have to give up my copyright to the publisher. But I have pre-publication versions of my papers on my open-access website as do most of the other scholars I know.

    2. Josh has just set himself up for an unanswerable question: “Did anybody pay you to write your post?” Any answer undercuts the point he is trying to make.

    3. And let me add (similar to my earlier comment) that the main question presumably is not whether to have copyright at all (although we clearly have gone overboard with the degree and length of copyright protection). The disgusting thing in this case and in general is that we have been treating copyright violations as crimes instead of civil violations punishable by the payment of damages.

    4. Josh: “Given the tenor of their posts, I am sure that these will be published as .pdf files, and will be freely available on this website for all future Aaron Swartzes to download without fear of prosecution.”

      Like this, you mean?

    5. What is your point, Josh?
      I have no idea about the mores and motivations of the authors on this blog, but you surely cannot be so ignorant as to be unaware of arxiv?
      In the fields of physics, math, astronomy and like fields, it is just treated as standard that whatever you publish will be submitted to arxiv for free immediate viewing. If you don’t make such a submission, you’re going to be considered a rather strange sort of person.

      This has been going on for what, maybe twenty years or more now — doesn’t seem to have had negative effects on physics and math, even though authors are no longer pulling in the megabucks that highly technical papers with titles like “A Polynomial Invariant for Rank 3 Weakly-Colored Stranded Graphs” used to make every day…

    6. I haven’t followed this case closely, but I have to say — how many people even wanted to read any of the stuff the kid “stole?” (I gather, a lot of it was from public money in the first place…) Shouldn’t those authors be flattered? Don’t most studies get cited an average of once? All due respect to scientists, of course.

  10. Perhaps I should rephrase my point, since it seems to have been ill understood:

    Like many who read this website, I am highly educated. This has of course necessitated spending many years on various college campuses. One of the joys of this was the access that I had to various academic sites such as jstor, and I believe that everyone should have access to such sources. However, over those same years, I also spent quite a bit of money purchasing books written or edited by my professors. I am not an academic and I certainly don’t know the finances of academic writing, but I have a difficult time believing that the professors wrote or edited those books for free, or that there was no pecuniary benefit to forcing me to purchase their works. (Maybe I’m wrong.) Some of those professors write for this site. At least one has weighed in on this debacle by demonizing the judge and the court.

    It is only this that offends me. For better or worse, we live in a system that protects, and perhaps overprotects, intellectual property. Congress has enacted these laws, and many posters on this site have benefited from these laws. Some, like you Mike, may have opted out of accepting money for writing, but other writers on this site have devoted entire posts to touting their newly published books. Where is the self-reflection?

    1. So your complaint is that people who get royalties for published works have no business criticizing copyright law? If those laws were utterly unalterable then you’d have a point. The OP didn’t say copyright is inherently evil and must be abolished; only that it’s seriously dysfunctional and needs to be fixed. More particularly, that our current system just doesn’t deal with digital media realistically, efficiently, or fairly.

    2. If you write a best-seller, especially one that has movie potential, or a widely-adopted textbook, I think you can make enough money to support a family for a while. I don’t know any academics who have earned more than enough to pay their taxes one or two years from royalties, nor do we make anything from academic publications. In the sciences, it’s conventional to pay the journal to publish it (usually covered by your research grant). If you buy a commercial book for $20, you can expect the author got about a buck; a textbook for $100, maybe $10. Very few books sell tens of thousands of copies, much less hundreds. Other writing: I made $150 each, more than once for an op-ed piece, and my Zodiac history for Washington Monthly pulled down 3 C’s! I’m not complaining: the deal for academic writing is that publishing stuff gets you a job that I can’t believe they actually pay me for, and then advancement in it. It also gets attention from people who I admire and want to be like, and sometimes (in classics or medieval history not so much) makes the world better in some way. I don’t know if Mark is putting any dinner on the table from his books, or any of the other RBCers, but I know what he counts to go to sleep: people not going to prison because they didn’t commit crimes, and other people not being mugged and robbed, because of what he writes.
      No, I didn’t write my books for free, but money isn’t why I wrote them (the royalties were trivial). I don’t write anything for free, because the distinctive financial arrangement for an academic is to be on salary to write things. In a coarse and irregular way, I make somewhat more money if I write more better stuff. But lots of what i write, including this, has no demonstrable effect on my money income; in my business (and other businesses are different) writing is mostly about other kinds of income. This arrangement is a cool niche deal for me and my prof colleagues, but it’s not a scheme that will ensure society access to the right amount of good stuff, whether music, news, movies, or even (you since you lost your JStor access) research, and the shortfall is very large.
      No, Josh, the system does not protect intellectual property either from the consumer’s or the creator’s perspective. Lots of it is taken from creators without payment, therefore without signalling them to make more like that not to mention stiffing them unjustly, and lots of it is withheld from consumers by charging more than marginal cost.
      If you search this site for “Paying for digital goods” you will find a long series of posts that explain what I am and am not upset about in this area, and (I hope) will clarify exactly what is and isn’t wrong with the current rules and practices.

    3. Josh- Every system has its abuses, but when I asked my students to buy a book of mine, I gave the equivalent of the royalty money back as a pizza feast at the end of the semester because I thought it unethical to keep it. That was my personal response.

      A deeper more general response- most all academic publishing is part of the “gift economy.” We do not expect to be paid, but if the paper or book is regarded as worth while we expect our contribution to be acknowledged within the community with things like reputation, tenure, invitations to conferences, and maybe even a raise. But the dynamics are very different when comparing non corrupt academic publishing and publishing for the general reader.

      The internet has in may ways revitalized the gift economy as an alternative to the commodity economy with respect to knowledge. I think Yochai Benkler’s “The Wealth of Networks” is a excellent introduction to these issues. He walked his talk. Even though the book was published by Yale, Benkler also made it free for downloading on his website.

      Corporate values in science and academia are poisonous to the entire enterprise- in fact, to call academia an ‘enterprise’ is to misname it.

  11. I have no inside information about the prosecution’s intent. I would suggest the reason why they pursuing at least initially maximum charges was that — if they reduced the charges or just settled on a plea bargain as some have suggested — Mr. Swartz would just continue to find other stunts to pursue that at some point might cause some real tangible harm.

    Someone may even much higher up in the DOJ than those directly on the case may have made the decision that we intend to stop this guy here & now as Mr. Swartz had himself written that he sees no reason to obey laws that HE considers unjust.

    Regardless, it is all a tragedy that he never received the help he obviously desperately needed. RIP.

    1. John, can you say to yourself with a straight face “thirty years in prison is the right sentence for Swartz’ non-violent, no-pecuniary-gain, offense”? A home-invasion robbery is obviously worse, would you say thirty-one years?
      Where are you on a graffiti sprayer caught in the act: ten to twenty? An unrepentant, compulsive o-filler nailed right in the library by the video surveillance; that should get some serious hard time, right?
      Do you seriously advance a theory of incarceration based on pure incapacitation and a prosecutor’s hunch (more precisely, what a prosecutor is willing to assert about his hunch) about what the perp might do in the future? That’s life for the o-filler…

      1. The prosecutors having thrown the entire book at the late Mr. Swartz could have then constructed a plea agreement such that they would not have to deal with anymore of Mr. Swartz’s stunts. I do not think the 30-years in jail was ever to be a reality.

        1. It doesn’t matter what you think.

          When a prosecutor threatens you with thirty years in prison you don’t shrug it off.

          1. OK then. That’s fine.

            But I happen to think that viewing the prosecution’s behavior strictly in a sort of game-theoretical mode is wrong. I think that prosecutors should not routinely think that way. Whatever laws Swartz broke, he was neither violent nor acting for personal gain. And of course, your analysis of prosecutorial motives also omits the possibility that they had personal goals of their own in mind. Swartz’ lawyer is quoted in today’s Boston Globe as suggesting that the prosecutor managing the case – Stephen Heymann – saw the case as a major opportunity to advance his career. Not an unbiased source, of course, but surely it’s not unknown behavior.

          2. So now we’re down to the influence on the DOJ by Hollywood moguls, personal political aspirations of one or more prosecutors involved, maybe long-standing animosities of prosecutors from their childhood toward persons who were much smarter than they were, etc. It seems to me that often the simplest explanation is the most likely: The prosecution/DOJ were trying to prevent the late Mr. Swartz from any further hacktivist activities of any sorts — benign or malevolent — and send a message to those with similar computer capabilities who might be contemplating the same.

            That would also seem to be a common prosecutorial intent.

        2. They did offer a plea bargain and he turned it down.

          I have to say, I’m gobsmacked by all the commentators on these two Swartz threads who know for certain that it was his depression, not the looming stresses of the upcoming trial and the threat of jail time, no matter how short or long, which triggered his suicide (People who think it was the trial don’t seem to me to be as adament that they alone have figured out the truth).

          Nobody here appears to have ever even met him once, let alone known him well; none of us here is in any position to know how much one or the other motivated him, or in what proportions or degrees. It could have been his depression, it could have been the trial, it could have been both. We can’t and won’t ever know. It’s a very dumb thing to think you can have an informed opinion on this.

          1. You’re right of course that I never met Swartz, and can’t really know what drove him.

            What I do know is that, prone to depression or not, finding oneself in a prosecutor’s crosshairs is an enormously draining and stressful experience, and you never get a day off while the process is ongoing. Surely it’s all the more so when the penalties you face are so draconian.

            Even without the suicide, I think this maximalist prosecutorial tactic was abhorrent.

          2. Byomtov, I apologize for what was obviously a problem with the tone of my comment. I didn’t mean you (I’ve just reread your comments on both threads), I meant the commentators who said things like “his sickness killed him,” and “history of serious depression, and that is probably the explanation for his death” — and if you look over the threads, there were a number more comments along these lines. These comments discounted the pressures generated by the court case, and in some cases, sounded as if the writer knew nothing about the complete intransigence of the prosecution.

            You and I are pretty much on the same page. We can’t know the role his brain chemistry might have played but we also can’t dismiss how absolutely terrified he probably was. I mean really, it’s just a coincidence he hanged himself after a long period in which his attorneys had next to no success in negotiating with the prosecution? The Wall Street Journal had a good review of these two issues:

            I myself didn’t know much about Swartz until a few days ago. Crooked Timber in particular had some very interesting posts that put the JSTOR incident in the much larger context of Swartz’s earlier activism (I hadn’t known he’d had such a large role in stopping SOPA) and I liked Glenn Greenwald’s piece in The Guardian as well:

  12. What a loss.

    Here is something eerie from Swartz’s 2008 review of books, on the subject of David Foster Wallace:

    “DFW’s suicide hit me very hard. I ended up coping by reading every piece of nonfiction he’d ever published. He was a brilliant, tortured man and I see so much of myself in him. His nonfiction was fantastic and I will consider my life a success if I can do half of what he did.”

  13. I join everyone in their grieving and I send my sympathies to Aaron’s family and his loving friends and colleagues the world over. We have lost an extraordinary intellectual luminary and a gifted champion for civil rights. Too young, too young.

    But in his spirit, some of us have to stand up and speak out about what’s being said in his name.

    After all the years of global struggle to reduce suicide rates, progressives have finally hit upon the silver bullet, now regularly deployed in too many cases to enumerate: simply declare every suicide a homicide. (Problem solved.)

    RIP Aaron Swartz. I won’t try to sensationalize the death you brought yourself, in Brooklyn, by hanging. Its narrative is as complicated as you were, I’m sure.

    All those who now martyrize you, in their grand stand against the government and all forces of evil and injustice, unwittingly imply your death was that of a weakened, embittered person who chose the only reasonable way out, given the circumstances. The eulogy they’d write would be incomplete, were your death not caused by the heinous acts of others mistreating you.

    What an insult this tale lays upon your legacy of triumph and courage. As if something like a mere criminal prosecution could ever be sufficient to bring you down.

    Whether you’d choose it or not, Aaron, you’ve now been turned into someone who would rather end your unbearable legal suffering – by doing yourself lethal harm – than fight on and sustain your legendary battles for our freedoms. You’re now an ill-fated genius, replete with a Shakespearean blind spot: a tragic hero who wasn’t smart enough to know that suicide is the ultimate mistake. It’s an overreaching federal prosecutor who drove you – you, of all people! – to end your own life.

    Far from celebrating and honoring you, this story of your sudden end trivializes your wonderful, short life. Now, in the telling of this tale, you are just another victim too small to confront the beast.

    I didn’t know you, Aaron, but I sense this much: you were aching to go to trial on the JSTOR case, if that’s what it took to advance the cause and vindicate our rights.

    And you would have won, if not at trial than on appeal, or afterward in Congress and the state legislatures. Being the genius you were, you knew that. You believed above all in our collective capacity for progress. If people would only listen.

    Why many now wish to turn your final months into a tragic opera – with its plot’s customary, violent climax – is beyond me.

    They feign understanding the incomprehensible.

    Yet who can blame them? It’s a way of converting their inconsolable grief into something real, something tangible, a void somehow capable of recompense. When all else is lost … the fight for justice lives on.

    Perhaps in time they’ll regain their perspective, on the now-inconvenient difference between a suicide and an assassination.

    * * *

    In the meantime, my heart goes out to all those who grieve for Aaron and his world during this time of mourning.

  14. Maybe his suicide was rational in a sense, history of depression notwithstanding? He was by all accounts a genius in the classic sense and passionate about his beliefs. He was facing a 35 year sentence and knew the government wanted to make an example of him (I wouldn’t be at all surprised if the industry sponsors of SOPA/PIPA were putting extra pressure on DOJ, but I’m not suggesting anyone wanted him dead). Which means he wouldn’t make the short list for any kind of early release. Thus his effectiveness for his causes was essentially over. Unless he could inspire others to step up. Martyrdom can do that. Personally, I hope it will.

    [And I’ll apologize now if this suggestion is just too gauche at this moment.]

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