The Idealists

by Justin Peters

  His colleagues were more than happy to pick up his declamatory slack. In the months preceding the Eldred v. Ashcroft arguments, Swartz’s blog posts continued to frame the copyright question as a moral matter: “I’ve often complained to folks about their use of the term ‘pirate’ to mean ‘share,’ ” he wrote in February 2002. “When folks complain about pirated movies, do they really mean to imply that sharing movies with someone is the moral equivalent of attacking a ship?”67 He bragged that he was using a service called LimeWire to download copyrighted music for free.68 On his way to Washington for the oral arguments, Swartz fantasized about encountering Jack Valenti in O’Hare Airport and asking the copyright lobbyist the sorts of hard questions that would leave him “mumbling and looking down at his watch.”69 The real debate, on the courtroom floor, would not so easily be won.

  The day before oral arguments were scheduled to begin, Lessig delivered a pep talk to a group of supporters. A few days later, Swartz paraphrased those remarks on his blog:

  Four years ago, when we filed this case, people laughed us out of their office. “You want to take away people’s property?” they exclaimed. No one understood what the public domain was, the media thought we wanted to get rid of copyright. That’s not the case now. Every article understands the issues, people know what the public domain is. That’s an important victory.

  Even more important is that we have a group like this. We’ve got a team of people here fighting for our freedom. Whatever happens tomorrow, whatever the court decides, let’s not lose this, let’s not stop the momentum. There are many battles to fight, and we need to keep going.70

  Later that night, Swartz returned to the Supreme Court steps, where he talked and laughed and played the board game SET with the other members of his tribe, waiting for morning to come and the world to set itself right.

  The next morning, the courtroom was completely full. The Federal Reserve chairman Alan Greenspan was there; so was Hackers author Steven Levy. Jack Valenti was there, as was Sonny Bono’s widow, Representative Mary Bono. “The courtroom itself was an impressive structure,” Swartz noted on his blog. “Everything was very, very tall.”71

  The court seemed skeptical of Lessig’s argument. “Many Justices repeatedly said that they felt [the CTEA] was a dumb law, that it took things out of the public domain without justification,” Swartz reported later on his blog. “But they were having trouble finding a way to declare it unconstitutional without also having to overturn the ’76 extension, something they clearly didn’t want to do.”

  Lessig had argued a case in open court only once before, and his courtroom inexperience was evident. He was too much the professor, and not enough the performer, it seemed to Swartz. “I thought Larry had done an awful job until Solicitor General Olson (the man who argued for Bush in Bush v. Gore) came up,” Swartz wrote. “The Justices had a field day with him. Rehnquist got him to admit that a perpetual copyright would violate the Constitution. Kennedy got him to admit that a functionally perpetual (900 year) copyright would also be a violation.” Neither Olson nor Lessig had clearly triumphed, and as oral arguments concluded, the case seemed to be either side’s to win. Eldred later summarized his day in court for the members of the Book People mailing list. “Our side was ably argued and the government’s case was very weak,” he wrote, noting that “the calls from reporters are petering out, so maybe now I can go back to scanning books.”72

  That afternoon, Swartz and his friend Seth Schoen visited the Library of Congress and toured the Main Reading Room. Similar to the Boston Public Library in 1895, the ornate and sumptuous gallery seemed to apotheosize the notion that unfettered information was the guarantor of American liberty. “Seth exclaimed that the LOC Reading Room was the most beautiful thing he’d ever seen,” Swartz reported, but the setting made both of them emotional.73 Hours earlier, Lessig had issued the Supreme Court a challenge to greatness. Standing inside the Reading Room, acolytes in a temple to the transformative power of the written word, they could hardly doubt that the court would rise to meet it.

  * * *

  ON January 15, 2003, the Supreme Court ruled 7–2 in favor of Ashcroft. In her majority opinion, Justice Ruth Bader Ginsburg wrote that the Sonny Bono Copyright Term Extension Act was “a rational enactment” and that the court was “not at liberty to second-guess congressional determinations and policy judgments of this order, however debatable or arguably unwise they may be.” Lessig’s contention that a consistently extended copyright term effectively constituted perpetual copyright was unpersuasive, Ginsburg opined. “Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA’s long terms,” she concluded. “The wisdom of Congress’ action, however, is not within our province to second-guess.”74

  That was that, and as the industrial copyright stakeholders celebrated their victory, their opponents struggled to process the predictably unhappy outcome. “It’s Over. We Lose,” Lisa Rein headlined her blog post on the Eldred decision. “So the Public loses again. Par for the course these days.”75 On the website Boing Boing, the writer Cory Doctorow expressed his sorrow: “This blog will be wearing a black armband for the next day in mourning for our shared cultural heritage as the Library of Alexandria burns anew.”76

  “We’d be interested in your ideas about what to do next,” Eric Eldred wrote to the Book People mailing list hours after the court released its decision.77 While some respondents proffered new strategies and tactics, others just seemed frustrated and sad. “Obviously the goal is to have virtually no public domain left at all,” Michael Hart wrote.78 Lessig’s gambit had failed, and the public-domain enthusiasts could reasonably wonder whether they ever had any chance of winning a game that seemed rigged in favor of their opponents.

  Lessig later acknowledged that he had mistakenly approached the Eldred case as a strict legal question, instead of framing it as a moral issue. “I have stood before hundreds of audiences trying to persuade; I have used passion in that effort to persuade; but I refused to stand before [the Supreme Court] and try to persuade with the passion I had used elsewhere,” he admitted in 2004’s Free Culture, a book-length attempt to reargue the Eldred case and extrapolate its principles across other modes of culture.79 Dispassion might be the standard in academic circles, but political outcomes are rarely decided by strict appeals to reason. American copyright law is a product of morality and metaphor. It is difficult to win a game that you choose not to play.

  Aaron Swartz’s response to the Supreme Court’s decision was uncharacteristically subdued. On his blog, he linked to some coverage of the verdict, then added a single optimistic line of his own: “If we cannot overturn it in the courts, then we shall overturn it in the legislatures.”80 In January 2003, this outcome did not seem particularly likely. The copyright industries had all the advantages on their side: lots of money, a gaggle of experienced lobbyists, and a century’s worth of legislative precedent.

  The free culture advocates had energy and time. If nothing else, Eldred v. Ashcroft was a chance for them to declare their existence; to announce their cause to the federal government and certain spirited segments of the American public. “We’re an emerging society!” Lisa Rein exclaimed as the free-culture group set up camp outside the Supreme Court the night before oral arguments began.81 She was right. This society was emerging from the depths of the Internet. And Aaron Swartz was emerging as one of its foremost citizens.

  6

  “CO-OPT OR DESTROY”

  During his “unschooling” years, uninhibited by other people’s standards, Aaron Swartz pursued his own interests and developed his own identity, more so than most teenagers of his generation. “Unschooling has been great for me. I’ve never felt so relaxed or at peace with myself before,” Swartz wrote in December 2001. “While making it work and finding things to do have been difficult, I’ve been forced to sort out my priorities and figure out how I work best. I doubt thi
s would have happened in school, where you are told what’s important and when it is due.”1

  But if withdrawing from high school because it was insufficiently challenging made you a prodigy in the eyes of the world, forsaking college entirely just made you look lazy. In the fall of 2003, during what would have been his senior year at North Shore Country Day, Swartz prepared to reenter the world of mainstream education. Stanford University, in Palo Alto, California, seemed like the most promising option. Lawrence Lessig had relocated there. It sat at the heart of Silicon Valley and was close to San Francisco and all of Swartz’s friends in that city’s free culture scene. So Swartz applied. Tim Berners-Lee wrote him a letter of recommendation. On the day Swartz received his acceptance letter, he noted the occasion on his blog with exaggerated glee: “so, like, i totally asked Stanford out, like a whole month ago, and today she said YES! omg!!!!!!! so cool!!!”2

  This mock enthusiasm soon subsided. On his first night at Stanford, orientation leaders schooled the new arrivals in “the dos and don’ts of campus life. You know: smoke your pot over by the lake, keep your vomit from binge drinking off the floor, and never, ever share files over the Internet. (To underscore the last point, we were given an MPAA flier along with the key to our room.)”3 By his third day in Palo Alto, Swartz’s tone already indicated his fear that he had made a mistake. “It’s hard to say this without sounding even more superior than usual, but it doesn’t strike me that most Stanford students (and professors) are exceptionally bright,” Swartz posted on his blog. “I was led to believe that Stanford was a magical place where everyone was a genius. This is somewhat disappointing.”4

  As the months passed, Swartz’s disappointment mounted. His classes were boring, his fellow students insufficiently serious. He made few friends. Stanford was North Shore Country Day with more people and better weather. As a teenager in Illinois, Swartz had valued his online friendships in part because so few of his local peers shared his interests. “I remember he was really hoping that that’d change when he went to Stanford,” his friend Seth Schoen recalled. “And I visited him there and he basically said that it hadn’t—that even the other Stanford undergrads around him weren’t curious about the things he was curious about.”5

  By Swartz’s own account, his freshman year was a social disaster, an adventure in loneliness and miscommunication. On his blog, he chronicled college life, adopting the tone of a priggish anthropologist studying some vulgar foreign culture. At times, his isolation is painfully evident:

  Stanford: Day 58

  Kat and Vicky want to know why I eat breakfast alone reading a book, instead of talking to them. I explain to them that however nice and interesting they are, the book is written by an intelligent expert and filled with novel facts. They explain to me that not sitting with someone you know is a major social faux pas and not having a need to talk to people is just downright abnormal.

  I patiently suggest that perhaps it is they who are abnormal. After all, I can talk to people if I like but they are unable to be alone. They patiently suggest that I am being offensive and best watch myself if I don’t want to alienate the few remaining people who still talk to me.6

  Swartz may not be the most reliable narrator regarding his freshman year. His former roommate does not remember him as a social pariah. Another friend, Zooko Wilcox-O’Hearn, described on his own blog a since-deleted posting Swartz wrote about necking with a random girl one night on the Stanford campus. “I can’t believe I’m dry-humping Aaron Swartz!” the girl said, in Wilcox-O’Hearn’s recollection. “I can’t believe I’m dry-humping!” Swartz replied.7

  Swartz may not have been quite as isolated as he claimed to be, though he clearly wasn’t fulfilled. While his fellow students had ostensibly enrolled in college to find themselves, Swartz mostly found himself ever more separated from the things that made him happy. While back in Highland Park during winter break, Swartz attempted to articulate exactly why he found organized schooling so enervating. “When I started high school, I remember watching for that point where foreground and background reverse—the point at which school as a use of my time turned into time being what was left over after school. It didn’t take long,” he wrote on his blog. “School is like that. It keeps you running until running is the only thing you know.”8 Not surprisingly, he took the first possible opportunity to run away from Stanford.

  Swartz was exactly the sort of disaffected, understimulated genius that Paul Graham was hoping to recruit for his latest enterprise. Graham is a computer programmer and entrepreneur who, in 1998, sold the company he cofounded, Viaweb, to Yahoo for $49.6 million in stock. Following the sale, Graham wrote a series of thoughtful essays on computers and the people who loved them. In 2003, Swartz had excerpted one of those essays, “Why Nerds Are Unpopular,” in which Graham suggested that the pointless busywork assigned in the typical American high school only encourages smart, self-motivated teenagers to consider suicide. “Another problem, and possibly an even worse one,” continued Graham, “was that we never had anything real to work on. Humans like to work; in most of the world, your work is your identity. And all the work we did was pointless, or seemed so to us at the time.”9 (“I highly recommend reading the whole thing,” Swartz added.)

  Graham also aspired to invest in start-up companies. In 2005, he thought he had figured out what caused so many tech start-ups to fail. A short five years after the American economy had sunk under the weight of a million irrelevant websites, the obvious answer to the question was “Because those websites were irrelevant.” But why had they been so irrelevant? Why had the tech bubble been characterized by smarmy, overcapitalized mistakes, vague solutions to problems that no one had posed, and companies that wasted their venture capital funding on office whimsies and art direction while neglecting to ensure that their websites actually worked?

  Well, for one thing, Graham observed, in that age of irrational exuberance, the websites didn’t actually have to work in order to attract investors. But a bigger problem was that venture capitalists had invested in the wrong sorts of entrepreneurs. Investors were attracted to companies founded by people with significant business experience, people who would have been just as comfortable working in the auto industry as at theautoindustry.com. Graham suspected that “success in a startup depends mainly on how smart and energetic you are, and much less on how old you are or how much business experience you have.”10 He wondered what would happen if venture capitalists bypassed the businessmen and, instead, invested directly in the ideas of smart kids who could build stuff. “Animals,” Graham called them: tenacious and intelligent young self-starters who didn’t need Ping-Pong tables in the office as long as they had a case of Dr Pepper and a reliable Internet connection.

  Graham decided to test his hypothesis and, in March 2005, announced that he was soliciting applications for a project he called the Summer Founders Program—an early version of what would eventually become the renowned start-up incubator Y Combinator. “The SFP is like a summer job, except that instead of salary we give you seed funding to start your own company with your friends,” he wrote on his blog.11 Aspiring young entrepreneurs proposed ideas for start-up companies to Graham; the most promising applicants would be invited to move to Cambridge, Massachusetts, and participate in a sort of start-up summer camp. The participants would each receive approximately $6,000 in seed funding and would spend the summer developing their businesses and learning from Graham and his well-connected friends. Come fall, the Summer Founders, theoretically, all would have developed prototypes and business plans and the acumen necessary to go out and seek serious start-up funding. “If that sounds more exciting than spending the summer working in a cube farm,” Graham concluded, “I encourage you to apply.”12

  Swartz submitted a proposal for a service called Infogami, a tool for quickly building customizable, visually interesting, wiki-enabled websites.13 (The name Infogami, which rhymes with salami, is a compound of the words information and origami.) “The Macintosh
completely changed the way people used personal computers. Instead of typing arcane commands, you could point at what you wanted. Instead of just being able to work with text, anyone could use it to do graphics,” Swartz would later write. “Infogami is the Macintosh of building websites. Perhaps it’s a bit lofty of a goal, but we say aim high.”14

  Graham was intrigued by Swartz, if not necessarily Swartz’s idea, and so he invited the restless Stanford undergrad to come to Cambridge and pitch the concept in person. As Swartz packed for the trip in his Stanford dorm room, he told his roommates that he was off to interview for a summer job. His friend Seth Schoen, amused at the understatement, suggested Swartz explain that the interview was with Paul Graham, the famous programmer and essayist. “Yeah,” Swartz said, “but they won’t know who that is.”15

  On his blog, Swartz portrayed the pitch meeting as a comical and bemusing experience. In Swartz’s telling, Graham spent the session bouncing between conversational topics while paying surprisingly little attention to Swartz’s proposal for Infogami—“which he appears not to have read very carefully,” Swartz noted. Instead, the investor seemed primarily interested in convincing Swartz to abandon his original idea in favor of one of Graham’s own—or, failing that, to at least change his company’s name from Infogami to something more pronounceable. Nonetheless, Graham’s hyperkinesis at least indicated an excess of curiosity and ambition, a welcome change from the lethargic Stanford scene. “I walk down the sunny Cambridge street, smiling,” Swartz wrote after the pitch session concluded. “I feel pretty confident of being accepted.”16 His hunch was right. Graham called him back that same night and welcomed him to the Summer Founders Program. After a year on the academic treadmill, Swartz had regained a sense of forward motion.