The tragedy of the creative commons

Two weeks ago Aaron Swartz, co-creator of Reddit and RSS, hanged himself in his New York apartment. He was just 26 years old. Swartz was seen by his supporters as a visionary hero, fighting to make information freely available on the internet. As the founder of Demand Progress, which advocates a free and open internet, he was heavily involved in the opposition to the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA).

At the time of his death, Swartz was fighting criminal charges brought by the US government for using computers at the Massachusetts Institute of Technology (MIT) to gain illegal access to millions of scholarly papers kept by JSTOR, a subscription-only service for distributing scientific and literary journals. If he had been found guilty, he faced a maximum of 35 years in prison and millions of dollars in fines.

Swartz’s friends and family firmly believe that the possibility of years in prison and huge fines eventually prompted his suicide. His family stated: ‘Aaron’s death is not simply a personal tragedy. It is the product of a criminal-justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts US attorney’s office and at MIT contributed to his death.’

Many have criticised the US government prosecutors, saying the case was too aggressively pursued, especially after JSTOR had decided to drop charges against Swartz. Lawrence Lessig, the Harvard law professor who founded Creative Commons, argues that what happened to Swartz was a legal and societal form of bullying. Similarly, groups like the Electronic Frontier Foundation and Students for Free Culture believe the Swartz case has exposed the unfairness of the legal system in its treatment of copyright infringements. MIT’s website has also been hacked and defaced several times since Swartz’s death, and Anonymous, the hacker-activist group, claims it hijacked the website of the US sentencing commission and replaced it with a message warning that ‘a line [had been] crossed’.

There has also been petition calling for Swartz’s lead prosecutor, US attorney Carmen Ortiz, to be sacked. Ortiz, however, has revealed that the prosecutors had no intention of seeking the maximum legal penalties. They were in fact in plea-bargaining discussions with Swartz’s counsel and were recommending a sentence of four-to-six months in a low-security setting. So it actually seems unlikely that Swartz would have served a long prison sentence if found guilty.

We will never know the exact reasons why Swartz took his own life. The uncomfortable truth is that he was a deeply troubled young man who had been fighting depression for a very long time. As tragic as his death was, the fact is that some people do decide to take their own lives.

While it is easy to try to blame the US government, MIT and the Massachusetts US attorney’s office for Swartz’s death, there is no direct causal link between the actions of the US government and Swartz’s suicide. His death was never an inevitability. For example, compare Swartz’s case with that of Kim Dotcom. Last January, the FBI shut down Dotcom’s Megaupload – one of the largest file-sharing sites on the web – claiming Dotcom was entangled in racketeering, money laundering and infringing US copyright to the tune of US$820million. Indicted in New Zealand, Dotcom could face extradition to the US and up to 20 years in prison.

Dotcom is facing the same court battles as Swartz (although Dotcom is also accused of profiteering from his actions). However, Dotcom’s reaction to his indictment has been very different to Swartz’s. Exactly one year on from his arrest, Dotcom launched Mega, a new file-sharing website. The lavish launch party featured a re-enactment of the dramatic dawn raid on his Auckland mansion a year earlier. The timing and grandiose manner of the launch is seen as a defiant move against the US government. In a recent interview, Dotcom said: ‘The US government will probably try and destroy the new business… you’ve got to stand up against that, and fight that, and I’m doing that… I will not allow them to chill me.’

Thus we have two people facing similar criminal charges but who responded in two very different ways. Nevertheless, Swartz’s suicide is still being blamed on the US prosecution services and presented as a symptom of governments’ all-too-aggressive pursuit of copyright-law infringment. As a tribute to Swartz, many are now demanding changes to the law – a new ‘Aaron’s Law’ – to reduce the penalties for cybercrime. Californian congress representative, Zoe Lofgren, has stated that she will introduce an ‘Aaron’s Law’ bill to the House Judiciary Committee in the coming weeks. Her proposal is to make minor changes to the Computer Fraud and Abuse Act (CFAA), which was used to prosecute Swartz. Under her bill, the violation of online terms of service would stop being a felony. Lofgren hopes ‘these discreet changes will prevent any other person from being tortured the way Aaron was’.

This need to ensure that Swartz did not die in vain represents a common trend in society today. In this way, a tragic death is swiftly transformed into a cause. In the form of thousands of tributes and eulogies, Swartz is now being canonised. As one commentator notes: ‘In death, [Swartz has been] hoisted on to the shoulders of others and recruited as an activist for a wide number of causes, including the liberation of big data in academia and in publicly funded research… We are seeing the beginnings of the construction of a mythology around Aaron Swartz that will grow ever larger.’ Indeed, this seems to be happening already, with one columnist comparing Swartz to an internet-age Martin Luther King Jr.

That is not to say that the US government’s attacks on our freedoms should be ignored. In the name of fighting copyright infringement, online piracy and trafficking in counterfeit goods, the US and other governments are increasingly curbing our rights and freedoms, online and offline. This should be strongly opposed. At the World Economic Forum in Davos, the inventor of the web, Tim Berners-Lee, warned that government control is limiting the possibilities of the internet. Rather than spending billions in fighting online piracy, government and organisations should use those resources to adapt the existing copyright laws to align with our digital age.

Censoring or shutting down opponents through hacking will not help the cause of internet freedom. Nor will depicting Swartz as a martyred hero hounded to his death by a bullying government. We are quite capable of fighting these restrictions through open and political debate. We do not need to gag our opponents or be protected from bullies.

Theresa Clifford is a digital strategist currently based in Auckland. Visit her website here. Follow her on Twitter @TheresaClifford.