For the rest of his high school career, Swartz took classes at a local college and spent most of his spare time on the Internet, redoubling his involvement in online communities, where neither his age nor his maladroit manners held him back. Many of those in his online social network were involved with the World Wide Web Consortium, or W3C, a nonprofit group established by Tim Berners-Lee to promote technical standards and keep the Web running smoothly. Ten years after its public debut, the Web indeed resembled an infinite library, albeit a terribly disorganized one. The W3C members were among the first to understand the potential value and power of metadata as a solution to the search-and-retrieval problems that plagued the Web.
Just as a supermarket checkout machine scans a bar code to determine exactly what you’re buying and how much it costs, a computer reads a website’s metadata to acquire salient information about that site and the content therein. In a 2001 Scientific American article, Berners-Lee, James Hendler, and Ora Lassila made the case for a metadata-rich “Semantic Web” as one “in which information is given well-defined meaning, better enabling computers and people to work in cooperation. . . . In the near future, these developments will usher in significant new functionality as machines become much better able to process and ‘understand’ the data that they merely display at present.”44
The idea sounded great to Swartz. “The future will be made of thousands of small pieces—computers, protocols, programming languages and people—all working together,” he wrote in January 2002. “We need to stop worrying about how to make everyone do the same thing, and instead work on how to connect the (not so) different things that people do together.”45
Swartz preached the virtues of Berners-Lee’s project and became known in online communities for his youth, his intelligence, and his demeanor. “He seemed so confident about things even when he wasn’t an expert,” remembered Wes Felter, a software engineer who also participated in these groups.46 “You couldn’t just tell him, ‘Well, you know, you’re not an expert, you don’t know what you’re talking about. You’re just a kid, you don’t have experience.’ He wouldn’t take those bland arguments. He’d fight back.”
Swartz’s profile only rose once his correspondents started to meet him in person. His emancipation from high school had freed up his daily schedule, which allowed him to start occasionally attending computer conferences around the country. In the fall of 2001, accompanied by his mother, Susan, Swartz traveled to Washington, DC, for a conference sponsored by O’Reilly Media, a publisher of technical books and manuals. Susan Swartz brought Aaron to the conference and left him there in the care of Zooko Wilcox-O’Hearn, who had promised her that he would watch over her son. “I didn’t sweat the ‘keeping an eye on him’ part much, but we did mostly hang around with each other that day,” wrote Wilcox-O’Hearn, who was meeting Swartz for the first time.47 “I remember being annoyed that he wouldn’t eat his hamburger at lunch and he also wouldn’t tell me why not.”
Also at the conference was Lawrence Lessig, who, at the time, was almost three years into the Eldred case and was on the verge of opening a new front in the copyright wars. Lessig’s new initiative had started when Eric Eldred suggested that somebody should establish a “copyright conservancy,” a resource that collected material that had willingly been donated to the public domain. “If such an organization were set up, something on the order of The Nature Conservancy, then it would be something that authors and heirs could donate to themselves, when they have copyright to a work that is no longer published, but which deserves to be read still,” Eldred wrote in 1998.48 The idea eventually evolved into the distributed copyright conservancy known as Creative Commons.
Creative Commons was an effort to establish a more flexible framework for rights management in the digital era. One of the problems with copyright, Lessig reasoned, was that it was absolute. Once copyright was conferred, the rightsholder reserved all the rights to his creation. Creative Commons provided alternatives for people who perhaps wanted to reserve some rights to their creations, but were willing to cede others to the public.
The solution was a series of “licenses” that allowed creators to grant preemptive permission to people who wished to use and distribute their work. A photographer could publish one of her photographs under a Creative Commons “attribution” license, for example, which meant that anyone was free to copy, distribute, and display the photograph as long as they credited the photographer for her work. A “noncommercial” license bestowed usage and distribution rights as long as the photograph was not being used for commercial purposes. Creative Commons was not an attempt to replace statutory copyright—licensors retained the copyright to their works, and the licenses were fully compatible with existing copyright laws. But it was an unmistakable commentary on how statutory copyright often failed to meet the needs of the networked society. Copyright law needed to catch up with the times, Creative Commons implied—and if the laws lagged behind, then people would simply find a way to work around them.
When Lessig assembled a team to build the Commons, one of the first people he approached was the technology writer and archivist Lisa Rein. Rein, who was familiar with Swartz from his participation on various online mailing lists, suggested that Lessig ask Swartz to help implement the website’s metadata. “I won’t lie and say it wasn’t hard at the time to convince these people that I needed this fourteen-year-old on the project,” Rein said. “I took a pretty big hit for it politically at the time. Until they met him. It didn’t make sense to anybody until they met him.”49
When they met him, they were inevitably impressed—and occasionally they were intimidated. “He had incredibly high standards and we were not meeting them,” remembered Ben Adida, a computer programmer who worked as a contractor on the project. “He was very critical of my work, and he said so publicly. The guy was pretty hard on me, and I didn’t take that very well. He had a lot more of an audience on the Internet than I did, and it was hard for me to work with such a brutally honest person.”50
Swartz was forthright about the ethicality of the Creative Commons project, too. He insisted that withholding access to information wasn’t just bad policy: it was also morally wrong. “Without saying that what everybody else is doing is bad, we just thought these licenses might be good to help people share their stuff more,” Rein remarked years later. “Aaron was ready to say, ‘This system is bad, we need to change this.’ ”51
Swartz’s dogmatism was sincere, but must have been derived, at least partially, from his environment. In less than a year, he had gone from complaining about the burden of a heavy book bag to collaborating with the intellectual elite of the open Web. Adults—important, smart adults—took his suggestions seriously. Swartz had joined a movement, and had even become a leader in that movement. These changes must have been exhilarating, and people moved by the fervor of exhilaration tend to yell the loudest.
In May 2002, Swartz traveled to San Francisco to attend another O’Reilly Media event, the first annual Emerging Technologies Conference, where Lessig and his cofounders planned to introduce the Creative Commons concept to a crowd that included some of the Internet’s loudest yellers. For the fifteen-year-old Swartz, the trip was a succession of pinch-me moments. He spent much of his time in the hotel lobby, blogging and socializing alongside Wes Felter and other online friends. He joined them one evening at the Jing Jing restaurant in Palo Alto for a “Spicy Noodles Festival” organized by the software developer Dave Winer and the blogger Robert Scoble. (Swartz woke the next morning “with a neckcramp, a nosebleed, and a stomach-ache.”)52 He toured Google headquarters one afternoon at the invitation of employees there who admired his blog. “I had a wonderful time there,” he wrote. “I got to meet lots of great Googlers and see all sorts of famous stuff.”53
On the antepenultimate night of the conference, Swartz attended a party thrown by the writer Danny O’Brien and his housemates Jon Gilbert and Quinn Norton. There, he mingled with Bram Cohen, who designed th
e peer-to-peer file-sharing program BitTorrent; Cory Doctorow, who ran the massively popular blog Boing Boing; Jason Kottke, whose blog kottke.org was also widely read; and plenty of others. Though he was a fifteen-year-old boy at a party thrown and attended by adults, Swartz, for the most part, fit right in. (“It wasn’t a really sophisticated scene, honestly,” Wes Felter said of the era’s tech-conference circuit. “[Swartz] was obviously less mature than other people there, but I would say not by a wide margin.”)54 At 11:00 p.m., Norton gathered everyone together to attend the midnight showing of George Lucas’s new Star Wars film, Attack of the Clones. Swartz sat in the very first row. He was a long way from Highland Park.
On the final day of the conference, Lessig gave a speech drawn from the premises of his book The Future of Ideas. “Content providers launched a war to protect last century’s way of business,” Lessig said, in Swartz’s paraphrase. “So far they’ve succeeded in stopping innovation. They’ve convinced the world that it’s a choice between property and the American way or anarchy and evil communism. They’re winning because that choice is simple. But there’s something more.”55
Something more referred to the Internet, and its unique decentralized architecture. “Technologists need to tell politicians the importance of the values held by the technology,” continued Lessig, in Swartz’s rendering of the speech. “They have a Valenti-like view of the world—‘their terrorist war against the most important industry in America.’ Rhetoric is right but the target is wrong. Technology is the most important industry. Need to let the folks back east understand this.”56 The remarks were a recruiting pitch, soliciting soldiers to join the cause of free culture. How could Aaron Swartz decline?
* * *
DESPITE Swartz’s bravado, Lessig’s words, and their colleagues’ enthusiasm, “the folks back east” in Congress remained suspicious of file sharing, the Internet, and the public domain. “Not a single congressman will speak out against the interests of powerful computer or publishing companies,” Eric Eldred predicted in 1998, and their reluctance was easy to understand.57 From a politician’s perspective, “the Internet will bring us intangible wealth and make us rich in knowledge” is a much less compelling argument than “the Internet is costing my campaign donors money.”
The CTEA, the DMCA, and the NET Act were legislative attempts to thwart online copyright infringement. But in the years since their passage, online copyright infringement had ballooned into an international craze, largely thanks to the rise of peer-to-peer file-sharing services such as Napster, which allowed users to download digital music files for free from one another’s computers, and which became ubiquitous in college dormitories soon after it launched. The Recording Industry Association of America (RIAA), the primary trade organization for record companies, claimed in 2002 that American manufacturers’ earnings from the sale of recorded music had dropped by almost $2 billion since 1999, when Napster was released.58
In a July 2000 Senate Judiciary Committee hearing on the merits and demerits of online music downloading, Metallica drummer Lars Ulrich portrayed Napster as a digital den of unrepentant piracy. “Every time a Napster enthusiast downloads a song, it takes money from the pockets of all these members of the creative community,” Ulrich said, remarking that the “touted new paradigm that the Internet gurus tell us we must adopt sounds to me like good old-fashioned trafficking in stolen goods.”59 Ulrich’s position was clear: file sharing victimized songwriters, musicians, and record companies and threatened the survival of the entire music industry.
In Moral Panics and the Copyright Wars, the copyright scholar William Patry astutely noted that the mainstream culture industries operate on a mildly coercive “push marketing” model in which companies use advertising and promotions to create consumer demand for the products they want to sell, and the formats in which they want to sell them. Online file sharing repudiates “push marketing” by allowing consumers to unilaterally decide what they want to consume and how they want to do so. As file sharing grew ever more popular in the early 2000s, bringing with it potential opportunities for new, collaborative models of marketing and production, the culture industries instead focused almost wholly on ways to regain their lost control.
At that same hearing in July 2000, Gene Kan, one of the developers of the peer-to-peer file-sharing network Gnutella, offered a rebuttal, and a challenge, to those who claimed that the Internet was killing the music business: “Can we stem the tide of new technologies?” Kan asked. “Highly unlikely. So what does the future hold? Great things if profiteers adapt, if intellectual property profiteers adapt. Technology moves forward and leaves the stragglers behind. The adapters always win and the stalwarts always lose.”60
As the Eldred oral arguments approached, the adapters and the stalwarts made their respective cases. The RIAA filed an amicus curiae brief that argued in favor of elongated copyright terms: “Petitioners’ rhetoric masks what they are asking for: the right to copy—jot for jot—the works of others, often in order to profit economically,” the trade group claimed. “Copyright piracy in the music business alone exceeds $4 billion annually. . . . Congress needs the flexibility to meet this threat effectively.”61
The copyright conservatives didn’t always frame their case in reactionary terms. They occasionally emphasized the social and cultural benefits of extended copyright, and all the good things that might be lost if Eldred and Lessig were to prevail. In another amicus brief filed in support of the federal government’s position on Eldred, Dr. Seuss Enterprises argued that the long copyright terms provided by the CTEA promoted progress and creative expression. Without them, Americans would never have known the pleasures of Seuss Landing, a $100 million children’s theme park built at Universal Studios Orlando: “At Seuss Landing, children can enjoy a ‘Caro-Seuss-el’ merry-go-round and other rides derived from such famous Seuss books as The Cat in the Hat and One Fish Two Fish Red Fish Blue Fish. This park would never have been created had the Seuss works not been protected by copyrights.”62 The implication was clear: assigning books into the public domain would deprive the world of theme parks inspired by those books.
No matter your opinion of the culture industries, it’s true that the people employed in them tend to lose their jobs when revenues decline. There are valid economic arguments in favor of long copyright terms. But the entities making those arguments often seemed to willfully ignore any public benefit that might be derived from the public domain. In 2002, Brewster Kahle devised a novel way of illustrating that public benefit.
Kahle, an engineer and entrepreneur who had worked at the MIT AI Lab during the tail end of the hacker-ethic period, had been waiting for twenty years for technology and circumstances to catch up with his dream of building a computerized library that could rival the ancient Library of Alexandria in breadth and ambition. Kahle was gangly and bespectacled and looked like someone who might be hired to host a children’s television program about science. In 1999, he sold his company, Alexa Internet—an homage to his beloved Library of Alexandria—to Amazon for $250 million in stock, and then turned his attentions to building and maintaining the Internet Archive, which he founded in 1996. The nonprofit Internet Archive is dedicated to the overwhelming task of archiving the entire World Wide Web. It sends little “spiders” spinning across the Web to “crawl” through every website they can find and to memorize what those sites looked like on any given day. Those snapshots are then stored on the Internet Archive’s servers, where they serve as a massive, functional photo album of the World Wide Web past and present.
For Kahle, however, archiving websites for posterity had always been a prelude to the archiving of books. In late summer 2002, Kahle began uploading public-domain books onto the Internet Archive servers. Then he purchased an old Ford minivan and christened it the Internet Bookmobile. On the side of the bookmobile, written in the Comic Sans typeface, was the phrase 1,000,000 Books Inside (soon). Inside the bookmobile were a couple of laptop computers, a high-speed color printer
, and a bookbinding machine; on its roof sat a satellite dish connected to the Internet Archive’s servers in California. That fall, Kahle packed his eight-year-old son, a couple of friends, and a freelance journalist named Richard Koman into the bookmobile, and drove it cross-country in a mobile demonstration of the good things that can happen when the public domain meets an eccentric, civic-minded multimillionaire.
Kahle made stops in Salt Lake City, Columbus (Ohio), Akron, Pittsburgh, and Baltimore. He also stopped in Urbana, Illinois, to surprise Michael Hart, but Hart was loath to leave his house. (“When we arrive at his house, there is a car parked in the driveway but no other signs of life,” Koman wrote. “A sign on the front door says ‘RING BELL LOUD. RING AGAIN. PAUSE. THEN RING AGAIN.’ Following these directions yields no response.”)63
At every stop, Kahle and his bookmobile gathered a crowd. “Woohoo! We’re making books!” he cried, and that’s exactly what he proceeded to do. A user could connect to the Internet Archive’s servers, download a public-domain text, print it out, and run it through the bookbinding machine. After fifteen minutes, the user owned a brand-new book. “The books aren’t perfect: There are a few typos, some bad line breaks, and straight quotes instead of curly quotes, but they still look remarkably good,” Koman reported. They were inexpensive to produce, too: “In a print-on-demand world, where the cost of creating a book runs about $1 and the capital costs run under $10K, libraries don’t lend books, they give them away.”
Kahle’s road trip concluded in Washington, DC, right before Lawrence Lessig delivered the Eldred v. Ashcroft oral arguments. On his own blog, Lessig hailed Kahle’s vehicular agitprop, noting “the difference between a brilliant mind and a lawyer’s mind. While we brought a law suit [sic], Brewster built a bookmobile.”64 Though he had spoken in passionate tones at the Emerging Technologies Conference, Lessig was much less strident when bringing Eldred v. Ashcroft to the Supreme Court, instead seeking to “frame the Eldred case in a very sterile constitutional way.”65 In his opening brief, Lessig had argued that, by passing the Copyright Term Extension Act, Congress exceeded its constitutional mandate. The framers had intended copyright to be a limited-time right, and the retroactive nature of the CTEA violated that provision. As he prepared to address the nine justices, Lessig tried to maintain this professorial dispassion. Eldred was “the rare case where the law, properly and carefully read, yields one right answer,” and Lessig was determined to lead the court to that answer through reason rather than rhetorical appeal.66
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