The Idealists

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  CONTENTS

  Dedication

  Author’s Note

  INTRODUCTION The Bad Thing

  CHAPTER 1 Noah Webster and the Movement for Copyright in America

  CHAPTER 2 A Tax on Knowledge

  CHAPTER 3 A Copyright of the Future, a Library of the Future

  CHAPTER 4 The Infinite Librarian

  CHAPTER 5 The Case for the Public Domain

  CHAPTER 6 “Co-opt or Destroy”

  CHAPTER 7 Guerilla Open Access

  CHAPTER 8 Hacks and Hackers

  CHAPTER 9 The Web Is Yours

  CHAPTER 10 How to Save the World

  Acknowledgments

  About the Author

  Notes

  Select Bibliography

  Index

  To my parents

  AUTHOR’S NOTE

  This book began as an article in the online magazine Slate. The article was a long profile of Aaron Swartz, his life and work and undoing, written and reported in the weeks after his death. Called “The Idealist,” it ran on February 7, 2013. The next day, an editor at Scribner contacted me and suggested that I consider expanding the story into a book. I spent several months completing a book proposal, and when I was finally finished, I realized that my book had no title. After giving it some very brief consideration—I pluralized the title of the Slate profile and called the book The Idealists, thinking that we would come up with a better title later. We did: The Idealist. Sometimes your first instincts are your best ones.

  The Idealist is not meant as a comprehensive biography of Aaron Swartz or a comprehensive history of Internet activism or American copyright law. Little at all about this book is comprehensive. Someone could easily make another book consisting exclusively of material omitted from this one, and if you do, please send me a copy. Instead, The Idealist is a provisional narrative introduction to the story of free culture in America, using Swartz’s life as a lens on the rise of information sharing in the digital age.

  The first half of this book presents a basic narrative introduction to the history of copyright and free culture in America. In these chapters, I focus on various representative individuals whom I found interesting and significant, in hopes that emphasizing their personal stories will help animate and simplify otherwise abstract topics. Chapters 3 and 4 utilize archival research performed at the University of Illinois at Urbana-Champaign, which hosts both Michael Hart’s personal papers and the archives of the American Library Association.

  The second half of this book is based mostly on a close reading of Swartz’s own writings, supplemented by interviews and public documents. Chapter 8 employs a trove of redacted internal JSTOR e-mails to tell the story of Swartz’s fateful MIT downloading spree. Chapters 9 and 10 draw on thousands of pages of redacted US Secret Service documents acquired through the Freedom of Information Act by Wired’s Kevin Poulsen. Throughout the book, I have occasionally reused some material from my original Slate profile of Swartz. This material is used with Slate’s permission, and I am grateful to Slate for granting it.

  I decided to let Swartz’s own voice be the principal one in this story, in an attempt to simulate aspects of a first-person narrative. I have emphasized certain incidents and characters and de-emphasized others, for reasons of thematic relevance and narrative economy. Other ways of telling Swartz’s story certainly exist, and I can only hope that any deficiencies in my own approach are offset by its merits. I hope I have contextualized a debate that often seems entirely contemporary, humanized some of its most revered figures, and inspired curious readers to pursue further research on the issues and the individuals covered herein. Any errors and omissions are my responsibility alone.

  —Justin Peters

  Boston, Massachusetts, July 2015

  INTRODUCTION: THE BAD THING

  On Friday, January 4, 2013, Aaron Swartz awoke in an excellent mood. He brought his girlfriend, Taren Stinebrickner-Kauffman, up to the roof of their apartment building in Brooklyn, New York. Under overcast skies, he turned to her and said, unprompted, “This is going to be a great year.”1

  The statement was wildly optimistic. Two years earlier, Swartz had been caught using the computer network at the Massachusetts Institute of Technology to download millions of scholarly journal articles from the online database JSTOR. While downloading academic papers is not in itself against the law, doing so in bulk without explicit authorization is—or, at least, that was what the US Attorney’s Office in Boston had claimed. Swartz was arrested and indicted on felony computer-crime charges that carried a maximum penalty of ninety-five years in prison and more than $3 million in fines.

  Swartz ran no risk of receiving the top sentence. But his friends and family did not think he deserved any prison time at all. When his former girlfriend Quinn Norton met with the prosecutors in April 2011, she marveled at their stubborn insistence that excessive downloading was a serious crime. “I told them this case was ridiculous, I told [lead prosecutor Stephen Heymann] not to do this,” Norton wrote of the meeting. “They listened in silence.”2

  The prosecutors, as prosecutors tend to do, were using the threat of a long sentence to pressure Swartz into pleading guilty. But they were adamant that any plea bargain would have to include some jail time. The government initially offered Swartz a relatively lenient deal: plead guilty to a single felony count and serve a few months in a federal prison, followed by a period of supervised release.3

  But Swartz refused to sign any plea that would send him to prison. He resented that the supervised release program would restrict his access to computers. Nor was he keen to have a felony conviction on his record. Several months after his arrest, Swartz and Norton had visited Washington, DC. While walking by the White House, Swartz got sad. “They don’t let felons work there,” he said.4

  Swartz was twenty-six, small and dark, with shaggy black hair that fell below his ears, and an occasional beard that fell somewhere between stubble and scruff. As a boy he had been ashamed of his body, which he felt was “embarrassingly chubby.”5 But time had straightened and sharpened his features, and now he was handsome and barely resembled the awkward young computer prodigy he had once been. “Teenager in a million,” the Sunday Times had dubbed him in 2001, when he was fourteen, in an article lauding him as a computer programmer whose gifts far exceeded the norm for his age.6 At age nineteen, his whiz-kid reputation only grew when Reddit, the Internet start-up he had helped to build, was purchased by the publisher Condé Nast for an undisclosed sum said to be somewhere between $10 million and $20 million.7

  Swartz never told anyone how much money he earned from the sale, though it was clearly a substantial amount. “His reticence became a running joke between us,” Norton wrote, “me prying, cajoling, pressuring, and Aaron never giving in.”8 Swartz kept a lot of things to himself. When Swartz first started dating Taren Stinebrickner-Kauffman, he withheld all details of his legal predicament, not even mentioning that he had been arrested. Instead, he referred to the case, euphemistically, as “the bad thing.”

  The bad thing came into being during the first few days of January 2011, when network engineers at the Massachusetts Institute of Technology discovered a laptop concealed in a basement closet and wired into the campus network. The computer had been programmed to download documents from JSTOR at a rapid rate. The school installed a surveillance camera and, on January 6, photographed a young white male with dark, wavy
hair entering the closet to retrieve the laptop. The man attempted to conceal his face behind a bicycle helmet, but he was clearly Aaron Swartz.

  This discovery raised far more questions than it answered. Aaron Swartz was famous. He was neither a malicious hacker nor a vandalistic “script kiddie,” but rather a well-known programmer and political activist. He was friends with the Internet icons Lawrence Lessig and Tim Berners-Lee. He was a research affiliate at Harvard. His blog was internationally popular. So why was he skulking around an MIT basement siphoning obscure research papers like some tenure-track cat burglar? What were his plans for the nearly 5 million JSTOR documents he had acquired? What in the world was he thinking?

  Even two years after his arrest, these questions remained unanswered. The prosecutors believed that Swartz intended to post the JSTOR archives for free on the Internet. Since childhood, he had been affiliated with the “free culture” movement, whose members believe that digital networks ought to remove barriers to information access, not erect them—that the Internet ought not to be considered a bookstore so much as an infinite library, its contents made available for the benefit of all.

  Free culture is rooted in the public domain, a concept that dates to the earliest formalized copyright laws. In America, when a work’s copyright expires, that work falls into the public domain, which means that the public is free to use, modify, and distribute it at will, without having to pay a fee or ask permission. In 1790, when the United States passed its first federal copyright statute, the standard copyright term lasted fourteen years, with a fourteen-year renewal period. By the time Swartz first started downloading JSTOR articles, the standard copyright term for new works in America lasted until seventy years after the author’s death, and the public domain had correspondingly dwindled.

  The existence of the public domain implies that the public has an inalienable stake in works of culture and scholarship—even works that they did not themselves devise. Stories mean little unless they are told and retold, and in the retelling, new meaning accrues to the original tale. The effect a given work has on its audience—and vice versa—is intrinsic to its social value.

  Many free culture advocates believe that copyright terms should be reduced and that the public domain should be reinvigorated. “I want to see copyright regulation shrunken back down to where it came from,” Swartz wrote in 2002. “These freedoms likely won’t be retroactive, and they certainly won’t be easy, but we must try to achieve them.”9 Swartz even argued that restricting public access to useful knowledge was immoral, and that the information-rich were obliged to share their bounty with the information-poor.10

  This sort of rhetoric horrifies many of the publishers, film studios, record companies, software developers, and other culture merchants whose businesses are based on the artificial maintenance of information scarcity. Radical free culture could drive them into bankruptcy. They see unauthorized online file sharing not as an act of liberation, but of larceny; to them, someone like Swartz wasn’t an idealist, but a common thief.

  “Stealing is stealing, whether you use a computer command or a crowbar and whether you take documents, data or dollars,” said US Attorney Carmen M. Ortiz in a press release that announced Swartz’s indictment.11 From her standpoint, American law and custom clearly establish copyright as a property right, and society has derived clear benefits when the laws protecting property are vigorously enforced.

  Writing for the online magazine Guernica, days after the indictment, Swartz’s friends John Summers and George Scialabba ridiculed Ortiz’s simplistic moral tautology: “ ‘Stealing is stealing’ is phrase-making designed to confuse the legal and moral distinctions between the kind of cyber-crime everyone should oppose, such as stealing credit card and social security numbers, and efforts, like Aaron’s, to make knowledge more accessible to the educated public. Ms. Ortiz, incredibly, asks the public to ignore the motive behind the act.”12

  But Swartz never publicly revealed his motives. He rarely discussed the case at all, even with his closest companions. His silence seemed impelled by shame, an intrinsic emotional solitude, and a reluctance to involve his friends in his troubles lest they, too, incur the government’s wrath. As Stinebrickner-Kauffman later said, Swartz generally believed “that he shouldn’t rely on anyone else . . . that strength meant standing alone.”13

  Swartz’s self-reliance often proved debilitating, to the extent that even the prospect of asking a flight attendant for a glass of water was enough to inspire paroxysmal guilt. “I feel my existence is an imposition on the planet. Not a huge one, perhaps, not a huge one at all, but an imposition nonetheless,” he wrote in 2007. “Even among my closest friends, I still feel like something of an imposition, and the slightest shock, the slightest hint that I’m correct, sends me scurrying back into my hole.”14

  Swartz had been in his hole since his arrest, in a sense, and at times it seemed that he would never be able to emerge. His decision to spurn the proffered plea bargain had irked the prosecutors, and since then the two sides had been at loggerheads. As the April 1, 2013, trial date approached, the lead prosecutor, Stephen Heymann, said that he would request a federal-guidelines sentence of at least seven years in prison if he won the case.

  But new years represent new beginnings, and at the start of 2013, Swartz saw reason for optimism. He had new lawyers, from Keker & Van Nest, a San Francisco firm that specializes in intellectual property law and white-collar-criminal defense. His lead attorney, Elliot Peters—no relation to the author of this book—was prepared to argue that the authorities had inappropriately searched and seized Swartz’s computer and USB drive, and he hoped to convince the judge to bar prosecutors from using any of the evidence they had found therein. If the suppression motions succeeded, then maybe the prosecutors could be induced to offer a better deal. Maybe Swartz would go to trial and win.

  “We’re going to win, and I’m going to get to work on all the things I care about again,” Swartz told his girlfriend on their rooftop that day. That list was long. Swartz had innumerable interests, and he indulged them all—a trait that occasionally exasperated the colleagues and collaborators who struggled to command Swartz’s full attention. He was a programmer and a political activist, an aspiring author who had started and abandoned drafts of several books. He had recently become a contributing editor to a small magazine called the Baffler. He was beginning to do research on how to reform federal drug policy. He loved the novelist David Foster Wallace. He watched a surprising amount of television—Louie, Boss, and The Newsroom were favorite shows.

  In 2006, Swartz penned a “generalist manifesto” in which he urged his readers to elevate their professional ambitions and transcend their self-imposed limitations. Software engineers, for instance, shouldn’t settle merely for writing effective computer code; they should think about how they could apply their talents toward more majestic ends. “People are afraid of grandeur; it challenges the status quo. But you shouldn’t be,” he wrote. “ ‘Look up more’ should be your motto; ‘Think bigger’ your mantra.”15

  He followed his own advice and came to think of himself as an “applied sociologist,” actively working to develop rational strategies for making the world a better place. “Saving the world” had long headed Aaron Swartz’s bucket list, and he was intent on achieving that goal. In 2011, he even drafted a document titled “How to Save the World, Part 1,” in which he identified and analyzed eight methods that could be used to amass power and influence policy, ranging from innovative public-relations messaging (“In a democracy, changing the world usually means changing the public’s mind”) to tactical legal pressure (“Litigation in general is a powerful activist strategy”).16

  Swartz planned to save the world by making it more effective. He was a voracious reader of business books: the biography of investor Warren Buffett; the biography of Walmart’s founder, Sam Walton; anything that might contain insights into organizational behavior and successful management strategies. At the beginning of
2011, in a capsule review of a book about the Toyota Motor Corporation, Swartz wrote that “lean production”—the Toyota management strategy that prioritized perfectly efficient manufacturing techniques—was “undoubtedly the greatest human art form,” and he meant it (“with sex running a close second,” he clarified).17

  Swartz was obsessed with systems, optimizing and improving them; with making things work where they hadn’t before. “The revolution will be A/B tested,” he liked to say, meaning, essentially, that the most effective organizations recognized their successes and their failures, learned from both, and adjusted their tactics accordingly. “The revolution will be A/B tested” was something of a life philosophy for Swartz. In project after project, he probed and tinkered until he had elicited the answers he was seeking, forever iterating his way toward the ideal outcome, the logical solution.

  The bad thing was bad, in part, because it resisted logical analysis. Aaron Swartz had no criminal record. His alleged crime was neither violent nor actively malicious. Swartz returned everything he had downloaded, and JSTOR, conscious of its public image, told prosecutors that it did not want to see him go to prison. Yet the US Attorney’s Office in Boston had delivered a thirteen-count felony indictment and pursued the case with what Swartz and his allies considered disproportionate zeal.

  Getting caught inside an irrational, inflexible system—one that made no provisions for his own exceptionalism—was one of Swartz’s great fears. He had fled from most of the hierarchies he had encountered during his life. High school, college, the business world: he departed all three prematurely, after finding himself unable to accept their partitions and constraints. The Department of Justice was yet another sclerotic institution, best withdrawn from rather than withstood. But a defendant cannot unilaterally withdraw from a criminal indictment, and that was perhaps the worst, most frustrating thing about Swartz’s legal situation: he couldn’t improve it, and he couldn’t escape it.