Like most people, I was saddened to learn of the recent self-inflicted death of 26-year-old Aaron Swartz—the wunderkind computer mind and tireless Internet freedom activist who helped galvanize public support to defeat the Stop Online Piracy Act (SOPA) in 2012.
Swartz was also an accused felon. A firm believer that all information—research, music, etc.—should be free for taking, he played a cat-and-mouse game with MIT in 2011, repeatedly defying their attempts to stop him from downloading nearly five million academic research papers from the JSTOR research database, apparently with the intent to distribute them online.
Since his passing, there have been calls to honor his legacy by increasing awareness of untreated mental illness, shining a light on overzealous federal prosecutors, reforming the computer-fraud law he was charged under, and encouraging academics to make their research publicly available.
Friends, family members, supporters, and journalists have turned Swartz into a martyr. Swartz's father, Robert, says his son was "killed by the government;" New York magazine says Swartz "was a victim of a grave injustice"; Rolling Stone memorialized him as a hero who "led a campaign to prevent . . . a bill introduced to Congress that would have effectively legalized censorship on the Internet."
If the many calls to continue Swartz' work in his memory are appropriate, we shouldn't shrink from those areas where his work was half-baked or based upon mistaken concepts. In the words of Voltaire: "To the living we owe respect, but to the dead we owe only truth."
Swartz dreamed of a time when all the world's information was available free online, unconstrained by governments, corporations, or gatekeepers of any kind. Like others in the technology sector, Swartz viewed copyright—the right of creators to decide for a limited time how their work is distributed—as a threat to the information utopia he craved. He was wrong. Not only that, but the battles he won for Internet "freedom" overwhelmingly moved power from the people into the hands of the very corporate powers he sought to free information from.
In a much-discussed speech recorded at the "Freedom to Connect" conference last May, Swartz spoke of efforts to clamp down on websites that facilitate piracy—such as SOPA and its companion bill, PIPA—as a case of government "censorship," and noted, "I knew the Supreme Court had a blind spot around the First Amendment . . . Their blind spot was copyright." I know Swartz's intentions were sincere, but it is striking that this demonstrably brilliant person had blind spots of his own when it came to copyright.
First Amendment and copyright have co-existed—without terrible controversy—since the founding of the republic. Our Founding Fathers included a copyright clause in the Constitution (Article I, Section 8, clause 8), and in 1790 approved the first federal copyright law—before the Bill of Rights was even adopted. There are free-speech exceptions to copyright, such as Fair Use provisions, but Swartz's idea that the Supreme Court had some obvious "blind spot" was quite wrong. As described by the Supreme Court, copyright "is the engine of free expression."
Like many others, Swartz failed to see that combating digital piracy is more than a matter of protecting entrenched corporate profits—it's a matter of protecting the individual rights of all artists, most of whom are far from wealthy or powerful. Record labels, publishers, and film companies—from the biggest corporate behemoths to the smallest independents on shoestring budgets—exist merely because artists freely choose to partner with them, legally extending their rights. Whether an artist sees opportunity in signing with a record label is their business, not ours. Mass piracy is fundamentally contemptuous of artists' choices and erodes opportunities for creators trying to make their way in an already tough business.
Swartz also failed to see how sensible copyright policies place cultural power in the hands of the people—a goal he otherwise celebrated. The complementary protections of copyright and freedom of speech combine to create an independent and progressive creative culture funded by consumers (the people) rather than powerful patrons. Even if the state or a private power doesn't like a piece of creative work, copyright gives the paying public final say on whether it holds value—whether an artist deserves a career or a media company deserves success. By excusing digital piracy—or as I call it, "freeloading"—not only do we decide that creative works are less valuable than, say, a cup of cheap diner coffee, but also forsake our individual power to meaningfully influence culture.
By helping to kill SOPA and PIPA, Swartz didn't make it any easier for an independent artist or media company to create a sustainable business model—a long-term source of financing for their art and the creation of information. But he did help companies like Google continue to profit from the unmitigated exchange of copyrighted information.
Swartz's zeal for Internet freedom was just one aspect of his efforts to seek positive change in the world, but ironically he didn't see that artists are uniquely suited to offer the public new ideas, stimulate communities of thought, and catalyze progress. Copyright enabled the rise to cultural prominence of figures like John Lennon, Kurt Vonnegut, Johnny Cash, Stanley Kubrick, and Bob Dylan. Such figures transcend issue politics; they can revolutionize our cultural consciousness. Some people get rankled by the idea that an artist—gasp!—may become wealthy by the protections of copyright, but a wealthy artist is also an artist who answers to no one. The more financial stability an artist has, the more free, independent, and culturally powerful he or she may become. The more artists can trust that their fans will support them and respect their rights, the less desperate and reliant upon corporate or state patronage they'll be. We shouldn't be surprised that the age of music freeloading coincided with a spike in corporate patronage of "indie" musicians in the form of branding, advertising campaigns, and even "record labels" run by the likes of Mountain Dew and Scion.
By excusing freeloading, we consent to a digital future with decreased opportunities for our most independent and talented voices to emerge from the margins, find an audience, and develop over time to create works that change the way we look at the world. Thus, adequate protections against artistic exploitation—aka copyright enforcement—affect profoundly whether or not we will achieve our creative or, hell, human potential in the digital age. Do we want to live in a society that gives artists a fair opportunity to make a living or not?
Past and present facilitators of digital piracy like Napster, Audiogalaxy, Grokster, Megaupload, and The Pirate Bay are not misunderstood beacons of freedom of speech. They are digital black-market distributors who never asked artists' permission to feature their works or paid creators a penny, and whose owners took money for themselves via venture-capital funding, subscription fees, or advertising revenue. Such overseas-based black-market distributors were the target of SOPA—not "any website," as much of the delirious anti-SOPA propaganda (embraced and furthered by Swartz) erroneously claimed.
In his "Freedom to Connect" speech, Swartz recounted a friend telling him that the anti-piracy legislation COICA, which preceded SOPA, "isn't a bill about copyright . . . It's a bill about the freedom to connect"—but Swartz then omitted the next critical step in analysis. The bill was about the "freedom to connect" to black-market distributors who profit from other people's hard work—who blithely cut off at the knees artists' ability to be fairly compensated.
"This bill would devise a list of websites that Americans weren't allowed to visit," Swartz said, again leaving out the critical reason why: They were illegitimate black-market sites that had no right to profit from an American audience, and which would roundly be considered illegal if based within our borders. Marginalizing or blocking black-market distributors, prudently done, shouldn't be any more controversial than closing a store conspicuously packed with counterfeit goods.
Portraying the attempt to marginalize illegal online businesses as some violation of "Internet freedom" is curious, yet in many ways familiar in our political discourse. When the gun lobby gets panic-stricken over the prospect of universal background checks or bans on high-capacity magazines, which will likely cut into gun-industry profits, they stiff-arm debate by cloaking themselves under the emotionally potent but oversimplified banner of protecting "our freedoms." Curbing access to The Pirate Bay is no more an infringement on free speech than closing loopholes that allow felons to buy guns is a violation of a citizen's right to bear arms.
The first great political protest of the Internet age—the SOPA blackout, which Swartz fiercely advocated—was based mostly upon falsehood and paranoia. Mindful people accepted and then regurgitated mindless arguments—for example, that attempts to marginalize piracy would squelch free speech. Talk of Internet freedom is hollow, even dangerous, without an acknowledgement of Internet responsibility—our duty to respect the rights of others, artists included. By accepting utilitarian, propagandist calculations, where do we rediscover the truth?
Not from power struggles among the factions of politics, business, or technology—no. Truth is deliberated, and true inspiration found, in the very journalism, art, and other expressions that copyright protections incentivize. At their best, such work lessens our collective blind spots and reveals new doors to consciousness. A nation that dismisses the work of its artists and communicators is a nation with no future and no soul—as Tom Waits bellows, "a house where nobody lives."
If the memory of Aaron Swartz is to energize reform within the copyright sphere, let it be to sensibly reduce the length of copyright terms for the sake of the public domain—something we also have a right to. But let's not throw the baby out with the bathwater. Reasonably protecting artists' fair opportunity to make a living in the digital age through copyright, and our opportunity to directly support them, is the irreplaceable cornerstone of building the better world Swartz so deeply wished for.
Chris Ruen is the author of Freeloading: How Our Insatiable Hunger for Free Content Starves Creativity.