No prosecution of war criminals, torturers and mass murderers; no prosecution of those that declare a war on false pretense; no prosecution of those that indulge in grand larceny and financial fraud, immiserating the lives of many; no prosecuting of the rich and the powerful; but over-zealous hounding of a young, idealistic, brilliant man whose only crime seemed to be the desire to make available accumulated knowledge to all; and as always, the continuing incarceration and punishment of the nation’s dispossessed and underprivileged. This is not the justice system we would like to have, it is the one we actually have.
What could have motivated the prosecutor run amuck, Carmen Ortiz, to seek the horrendously disproportionate jail sentences and fines she sought for Aaron Swartz? Political ambition, perhaps. But focusing on her actions alone would be a mistake. Ortiz took the line she did because she was well aware that she was acting in a very particular context, a time and place in which the penalties she sought stood some chance of being viewed as the appropriate punishment for a baleful malefactor.
Ortiz, you see, was well aware that she lives in a world densely populated by confused, ignorant people, incapable of understanding the legal, economic and utilitarian roots of private property, or the differences between physical property and intangible property, who are too lazy to bother disentangling the idiotic term ‘intellectual property’, who faithfully parrot the lying press releases of media corporations, who cannot be bothered to understand how the creation and propagation of ideas works. These people can be relied upon to childishly shriek and scream at every instance of an action that threatens to upend the neat little black and white world they have constructed of absolute property rights and romantic notions of creativity. They can be relied upon to deploy, with little prompting, an emotionally charged, morally inflected language of ‘theft’, ‘piracy’, ‘robbery’, and ‘stealing’ to describe actions whose descriptions call for considerably more nuance. They are firm and upstanding and self-righteous, full of rectitude and judgment; they imagine themselves defenders of the starving artist and the inventor in the basement, not realizing they are, as usual, corporate shills and defenders of the antitheses of their proclaimed stances. They clog our bulletin boards and blog comments spaces, whining about how ‘artists deserve to be paid’, about how books and poems will never get written, how movies will never be made, music will never be composed, songs will never be performed in a world that does not offer as much copyright protection as possible, from the cradle to the grave and beyond.
These howling fools–who include those who work at supposedly elite institutions of learning–had set up a chorus, an applause track that Ortiz craved. Her cruel, over-the-top, inquisitorial sentence of thirty-five years and a million dollars, one would that terminate the career of a man who packed more creativity into his little pinkie than all the hordes who claim to be the faithful defenders of creativity, would ensure her hosannahs from this gallery. She would be enshrined as the Grand Protector of Property. Could there be a higher honor in our society?
So she acted. And pushed Aaron Swartz into his grave.
Samir Chopra 
I appreciate your impassioned post, and I agree that the prosecution was draconian and I’m saddened that a young man took his own life. It’s all the more tragic to me because I don’t see what such activism actually accomplishes. At the risk of being seen as defending the establishment and holding the unpopular views of the corporate shills you decry, I’ll share a few thoughts for your consideration.
The public inaccessibility of scholarship, in my experience, tends to be overstated by those of an activist persuasion. I can access JSTOR-listed journals for free via my public library (I no longer have access to an academic library). Access to such articles can also be arranged through inter-library loan. Although the young people at the forefront of open source activism are bright and more tech savvy than I, they seem unaware of how to use the relevant library services. Maybe these are the remnants of an archaic system that need to be dismantled. Is it less convenient than having research available at the touch of a button? Yes. Is it a moral cause worth being prosecuted over? I don’t think so.
Despite the “emotionally charged and morally inflected language,” there are issues of intellectual property and copyright at stake here. I personally don’t understand the equation of publicly funded research with publicly owned ideas. Presumably, even in a digital age, we need to find a way to secure authors some ‘ownership’ — for lack of a better term — over their ideas, otherwise plagiarism has no meaning. It seems that some of the more strident open source activists wish for a postmodern world in which the author is dead and there is only the text. Granted, copyright law is long overdue for reform, and some activists are grappling with the legalities of it, but others seem content to ride the bandwagon, cloaking themselves in their own self-righteous language of democratizing knowledge. But does such language justify illicit means of achieving that end?
Don’t get me wrong: I’m happy to experiment with open source journals. There are, however, real challenges to making it financial viable. As you’re probably aware, when Philosopher’s Imprint, a respected open source journal, considered implementing a $20 submission fee for authors, philosophers bitched about it until Philosopher’s Imprint downgraded it to a suggested donation. The costs associated with producing the journal are real, and the same people who cried bloody murder over the fee are the same people who are most vocal about open source scholarship. But you can’t have a principled position and then be unwilling to pay for it out of your own pocket.
Dan,
Thanks for your comment. I am writing an Op-Ed for a CUNY faculty news paper that will respond to some of the points you make. (Next week, I think.)