Poets are expected to proclaim unprofitable sentiments from on high; corporations, however, do not generally share the artist’s disdain for business dealings. In October 1998, partially at the behest of Disney and other companies terrified of losing the copyrights on their lucrative corporate mascots, Congress finally passed a version of the copyright term extension bill that Senator Orrin Hatch had first introduced in 1995.8 The law was called the Sonny Bono Copyright Term Extension Act (CTEA), in honor of the recently deceased congressman and songwriter. Bono’s widow, Representative Mary Bono, claimed that her husband had “wanted the term of copyright protection to last forever,” and his former colleagues in Congress basically decided to grant his wish.9 The CTEA extended the copyright term on any given work created before 1978 to ninety-five years after its first publication. Works published after 1977 would remain under copyright until seventy years after the author’s death.
The bill was officially celebrated as a victory for artists and writers. “Extending the term of copyright protection by twenty years will ensure that the American public continues to enjoy the contributions made by our creative community,” Congressman Bill McCollum, who represented Orlando, Florida, home of Walt Disney World, said upon the bill’s passage in the House.10 But it also put New Hampshire out of Eric Eldred’s reach.
The CTEA was one measure in a series of congressional bids to modernize federal intellectual-property statutes. The day after he signed the CTEA into law, President Bill Clinton did the same for a bill called the Digital Millennium Copyright Act (DMCA), which fortified federal efforts to prevent unauthorized access to copyrighted material. Not only did the DMCA prohibit the circumvention of copy-protection technology—for example, the mechanisms that require you to activate an expensive computer program before using it—the law also forbade people from using the Internet to explain how to evade copy-protection, or even linking to those explanations.11
The year before, in December 1997, President Clinton had signed a kindred bill, the No Electronic Theft Act (NET Act), which stipulated felony criminal penalties for people charged with the unauthorized online distribution of copyrighted material, even in cases where the distributor had no profit motive. The NET Act was intended to close the so-called LaMacchia loophole.12 In 1994, federal prosecutors indicted an MIT undergraduate named David LaMacchia for allegedly operating an online bulletin board that people used to freely trade copyrighted computer software. While it appeared to prosecutors that LaMacchia had helped facilitate software piracy, his actions were not considered criminal under the terms of the Copyright Act, since he had not acted for any clear commercial purpose. Though prosecutors instead charged LaMacchia with wire fraud, the case was eventually dismissed on the grounds that the wire-fraud charge was misapplied. Even so, Judge Richard Stearns sharply criticized LaMacchia in the dismissal, characterizing his alleged actions as at best “heedlessly irresponsible, and at worst as nihilistic, self-indulgent, and lacking in any fundamental sense of values.”13
In a 1997 statement to the House Subcommittee on Courts and Intellectual Property, Register of Copyrights Marybeth Peters noted that, absent strong laws to deter cultural-chaos agents like LaMacchia, heedless hackers would continue to use the Internet to destroy legitimate markets for creative works. “While the existing ‘commercial purpose’ requirement, in the world of physical copies, has served to limit criminal liability to piracy on a commercial scale, a new standard is needed in the digital environment, where significant economic damage can be caused without a commercial purpose,” Peters testified.14 Information, after all, wants to be expensive.
These three bills gave copyright holders effective recourse against self-indulgent nihilists, amoral fraudsters, and other blithely piratical souls. But they also hampered the work of volunteer librarians such as Michael Hart and Eric Eldred. “The new laws make no sense when the technology of electronic publishing has made it so cheap and easy for a person like me to publish much better stuff than the print publishers can do,” wrote Eldred upon passage of the CTEA. “They make sense only if they are means to retard technological change and serve as protectionist measures to allow the old print publishers to continue in their ways.”15
“When I first started Project Gutenberg nearly 30 years ago, I predicted that by the time that we could put a million books in a single box we could hold in one hand, that they would make it illegal to do so,” Hart wrote to Book People, an online mailing list for e-text devotees.16 The list’s name referred to the novel Fahrenheit 451, Ray Bradbury’s tale of a world in which books had been banned and were regularly burned by the state. Hart interpreted the new law as a similarly dystopian measure, an active attempt to serve corporate interests and check the spread of knowledge. On the Book People mailing list, Hart wrote, “It will take some SERIOUS revolutionary times and persons . . . if we are ever to get back the right of public domain as it is and was supposed to be.”17
Eric Eldred agreed. The new law appeared to have ruinous consequences for his work with Eldritch Press. If he put Frost’s book online without authorization, he risked criminal charges. Eldred had been living on workers’ compensation payments ever since repetitive-stress injuries had forced him into early retirement, didn’t want to go to jail, and couldn’t afford to pay a fine. “After many years, and after I am dead, society will awake to the insanity of all this,” he wrote in frustration to the Book People list.18 In the meantime, he shuttered Eldritch Press for good. Then he got a phone call from a Harvard professor who was seeking a plaintiff for a test case to challenge the laws governing the public domain.19
Lawrence “Larry” Lessig was a law professor at Harvard University, where he was affiliated with the Berkman Center for Internet & Society. Though he had come to lead a movement looking to liberalize America’s copyright laws, he didn’t immediately seem like a particularly radical fellow. Lessig “grew up a right-wing lunatic Republican” and had clerked for the conservative jurists Richard Posner and Antonin Scalia.20 He had a receding hairline and a memorably large forehead offset only by a small pair of eyeglasses. The Los Angeles Times once described him as “very pale and very quiet, as if he doesn’t want to bother the fellow in the next cubicle.”21
As Scalia’s clerk, he helped to convince the Supreme Court that its archaic internal computer system was in desperate need of an update by demonstrating to Scalia the thesaurus function on a more modern machine.22 Following that victory, he continued in his efforts to persuade the government that technological change was nothing to fear. Lessig, like Eldred, believed that copyright in America had strayed from its original purpose, and that lawmakers failed to recognize the realities of digital culture. “To digitize a book is to copy it,” he would later write. “To do that requires permission of the copyright owner. The same holds for music, film, and every other artifact of our culture protected by copyright. The effort to make these things available to history, or to researchers, or to those who just want to explore is now inhibited by a set of rules that were written for a radically different context.”23 Congress clearly had no intention of rebalancing those rules; therefore, Lessig concluded, he would have to convince the courts to strike down the recent copyright extension and revitalize the public domain.
Lessig initially identified Michael Hart as a good plaintiff for his CTEA test case and even flew to Urbana to discuss a potential alliance. But Hart insisted on taking an active role in the case and demanded that he be allowed to append a polemical personal statement to Lessig’s legal briefs. Hart’s manifesto “was great rhetoric, but all it was going to do was make people think we were a bunch of crazies,” Lessig recalled.24 Their partnership was short-lived, and Lessig sought out a more stable collaborator.
He found one in Eric Eldred. “You basically couldn’t ask central casting for a better face,” Lessig’s colleague Jonathan Zittrain remarked of Eldred to the Chronicle of Higher Education. “There’s none of the sort of ego that one stereotypically encounters with people on a m
ission.”25 In Eldred, Lessig saw a sympathetic defendant—not a moody loner, but a family man and lover of classic literature. “I try not to get involved in politics. I just like books and can’t imagine not being able to share them with other people,” Eldred wrote.26 After the two men met for coffee and conversation, Eldred agreed to keep his site alive and sign on to the case. They filed suit in January 1999.
In October 2002, Eldred v. Ashcroft—John Ashcroft was, at the time, the US attorney general—was heard by the Supreme Court, prompting a rush of excitement among America’s public-domain enthusiasts: a small but avid group of law professors, librarians, computer geniuses, and other bookish, persnickety souls. Like sports fans traveling to see their team compete for a title, many of them made the trek to Washington, DC, to support Lessig as he prepared to argue Eldred’s case in the country’s most important judicial venue. And what is the Rose Bowl, really, without a proper tailgate?
On October 8, the night before oral arguments began, a few of the Eldred pilgrims camped on the steps of the Supreme Court to ensure admittance the next morning. They approached the evening with a spirit of adventure and bonhomie: they played board games, sang songs, even ordered pizza. (Police officers helpfully provided the name of a pizzeria that would deliver to the courthouse steps.)27 One of the campers, the Creative Commons cofounder Lisa Rein, brought a video camera and taped her companions as they explained what they were doing and why they had come to the court.
“Why did you fly out here from Chicago and come all this way to see the Eldred argument?” Rein asked one of her cohorts, a teenager in a brown jacket, who tugged on his chin in response, seemingly perplexed by the question. “It’s very exciting to see the Supreme Court, especially such a prestigious case as this one,” Aaron Swartz finally replied after he stopped fidgeting. Then he paused and tilted his head. “And . . . Larry invited me. Couldn’t turn it down.”28
* * *
AT the time, Aaron Swartz was almost certainly America’s youngest public-domain enthusiast. A small and thoughtful fifteen-year-old from the wealthy Chicago suburb of Highland Park, Illinois, Swartz had flown to DC to watch oral arguments as a guest of Lawrence Lessig—with an assist from Lisa Rein, who had convinced Swartz’s mother to let him attend. “When Lessig asked me if I was free that day to come, I laughed because I couldn’t (and still can’t) think of anything I’d rather do than attend,” Swartz wrote at the time.29 Though he already had a ticket for the oral arguments, he chose to spend much of the night shivering outside the Supreme Court alongside some of the only other people in the world who shared his special passion for open culture.
Aaron Swartz had always been an outlier. Even before he was acclaimed as the unofficial protégé of the copyright reform movement, Swartz was separated from his peers by the depth and breadth of his interests and intelligence, and the vehemence with which he expressed his unusual opinions. At school, he responded to roll call not with “Present,” but with “I think, therefore I’m here.”30 He touted the virtues of The Teenage Liberation Handbook. His business card—he was the sort of boy who had a business card—billed him as “Writer, hacker, kid,” and his line of work as “Emergent crypto anarchy.”31
Swartz was born on November 8, 1986, and grew up with two younger brothers in what was surely the most computer-friendly household in Highland Park. His father, Robert, worked in the computer industry, and the Swartz home was filled with useful machines. “We were one of the first users of Netscape,” Robert Swartz remembered. “We had an ISDN line, we were absorbed in this kind of technology when there weren’t a whole lot of people doing it.”32
Early on, young Aaron developed a keen interest in computers and information, and how the former could be used to acquire and organize the latter. (“I don’t think I have any particular technical skills; I just got a really large head start,” he later reminisced.)33 Before reaching puberty, Swartz was writing simple computer programs and creating websites: for himself, for his family, for a local Star Wars fan club called Chicago Force. In 2000, when he was thirteen, Swartz built a website called The Info Network, which was a crowdsourced encyclopedia to which anyone could contribute. It was essentially the same concept as Wikipedia—but it predated Wikipedia by several months.34 Swartz submitted The Info Network for the ArsDigita Prize—a youth Web-design competition sponsored by the entrepreneur and MIT researcher Philip Greenspun—and was named a finalist. He traveled to Cambridge, Massachusetts, to claim his prize.
That same year, the Chicago Tribune ran a story about the young prodigy and his online encyclopedia. “Getting ‘real information’ to people on the World Wide Web is 13-year-old Aaron Swartz’s job. He’s tired of all the banner ads, the sponsorships and other miscellaneous ‘junk’ hogging the screens,” the article began.35 “That’s not what the Internet was made for. It was based on open standards and freedom,” Swartz explained to the reporter. Swartz gravitated to others who felt the same way.
Around the same time he founded The Info Network, he also began contributing to online message boards and mailing lists for people who wanted to make the Internet more functional, which in turn, they hoped, would make the world a better place. “We were part of an inchoate, ad-hoc community of collaborators who helped each other learn how to code. No, not how to write code—how to write code for the purpose of changing the world,” Swartz’s friend Zooko Wilcox-O’Hearn later remembered.36 Swartz barely paused to test the water before jumping in.
Wilcox-O’Hearn was already an adult when he made Swartz’s virtual acquaintance. So were all the other people who haunted these lists, discussing open information and Internet usability issues. Most of them were professional programmers and academics who worked on these problems for a living. “You meet these people in text originally,” recalled Dan Connolly, a software engineer and mailing list participant. “The guy’s writing code, making intelligent comments; as far as you know, he’s your peer. Then you find out he’s fourteen, and you’re, like, ‘Oh!’ ”37 These groups were, in a sense, modern-day inheritors of the AI Lab’s hacker ethic. A participant’s status was measured not by age or title, but by the quality of his contributions to the group.
Aaron Swartz didn’t advertise his youth, and by the time that most of Swartz’s correspondents discovered his juvenescence, they were already impressed enough by his intelligence that it didn’t make much of a difference.“On the topic of not necessarily having a good feel for the age of net-based collaborators, I was blown away to learn that Aaron Swartz is in 8th grade :-!!,” a developer named Gabe Beged-Dov wrote to an online mailing list on July 3, 2000.38
Swartz responded: “I generally try not to mention my age, because I find that unfortunately some people immediately discredit me because of it. :-(, Thanks to everyone who is able to put aside their prejudices not only in age, but in all matters, so that work on standards like these can go ahead and we can build the Web of the future. I don’t know about all of you, but I get very excited when I think about the possibilities for the Semantic Web. The sooner we get standards, the better. It’s not hard—even an 8th grader can do it! :-) So let’s get moving.”39
Swartz attended a private school, North Shore Country Day, in Winnetka, Illinois, and he chafed at its rules and customs. After-school sports were mandatory, much to his dismay. (“I narrowly escaped another day of practice due to an awful migraine headache. I don’t know which is worse: the headache or practice,” he blogged in August 2000.)40 Students were burdened with too much homework and too many course requirements. Not only did his school inhibit intellectual curiosity, Swartz argued, it also seemed designed to stifle it. Also, the school’s stairs were steep, and his backpack always seemed too heavy.
As he entered ninth grade in August 2000, Swartz launched a blog called Schoolyard Subversion, in which he portrayed organized schooling as a dystopia and himself as the leader of a burgeoning underage rebellion. “They drum it into your head. Stop fighting now. You can’t escape the message. Slowly
, your brain shuts down. You stop thinking, stop challenging, stop asking questions,” Swartz wrote with great melodrama. “You can’t do it. You can’t give in. You can’t let them control you. You have to fight it, fight it every minute.”41
Disenchanted students have long been fond of comparing high school to prison, but few have ever done so with such flair. While comparing an expensive private school to some sort of Orwellian dictatorship indicates a profound unfamiliarity with real institutional repression, Swartz was barely a teenager, and an unacculturated one at that. Though Swartz wasn’t a social outcast, he never excelled at making close friends his own age. “I have developed my most meaningful relationships online,” the fourteen-year-old Swartz wrote in April 2001. “None of them live within driving distance. None of them are about my own age. Even among those who I would not count as ‘friends,’ I have met many people online who have simply commented on my work or are interested by what I do. Through the Internet, I’ve developed a strong social network—something I could never do if I had to keep my choice of peers within school grounds.”42
But most adults were not prepared to accept the young Swartz as a peer. Swartz’s former principal, Robert Ryshke, remembers him as an assertive child who thought nothing of scheduling one-on-one appointments in which he would direct the bemused administrator toward books and articles about education reform. Even so, Swartz soon saw that the reforms he proposed were not imminent. High school students, he realized, were at the bottom of a fixed hierarchy, prevented from defining the contours of their own education. Every student, no matter how precocious, had to follow the standard path.
Swartz wanted to map his own route, and his parents allowed him to do so. “High school was for me probably the most unpleasant experience I ever had in my life,” Robert Swartz would later say.43 “So I was very sympathetic to the notion of Aaron’s not wanting to go to high school.” In the summer of 2001, Aaron gave notice: he would not return for tenth grade.
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