America, too, has its Javerts. Zealous and ruthless federal prosecutors have the power to torment people for trivial or imagined offenses, threatening them with decades of barbaric confinement. The consequences can be tragic even when case is not seen through to completion. Take the example of Aaron Swartz.

Swartz, an acclaimed programming prodigy, faced 13 counts under the 1984 Computer Fraud and Abuse Act (CFAA) and, if convicted, could have faced 35 years in federal prison and a million-dollar fine. Earlier this month the U.S. attorney in Massachusetts, Carmen Ortiz, and assistants Stephen P. Heymann and Scott L. Garland refused a plea bargain with no jail time.

On January 11 Swartz hanged himself. He was 26.

“He was killed by the government,” the Chicago Sun-Times quoted Robert Swartz, father of Aaron, as saying after the funeral. (Aaron publicly spoke of being depressed.) A family statement added, “The U.S. Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims.”

What did this young man do to prompt this relentless pursuit? Using the MIT computer network, he downloaded too many published scholarly articles (over four million) from JSTOR, a nonprofit database of academic journals, which charges nonacademics for access. Among his methods, Swartz planted a laptop in a closet at MIT without permission.

For this he was threatened with decades of imprisonment and the life-long stigma of being a felon. Perpetrators of financially significant crimes with victims are not treated so harshly. Why did this happen?

“He was being made into a highly visible lesson,” civil-liberties attorney Harvey Silverglate told Declan McCullagh of CNET.com. “He was enhancing the careers of a group of career prosecutors and a very ambitious — politically-ambitious — U.S. attorney who loves to have her name in lights.”

Even though Swartz was charged under an anti-hacking statute, he was not accused of hacking anyone’s computer. With unauthorized software, he simply used his own computer to download more published articles than allowed. According to Wired’s David Kravets, “The government … has interpreted the anti-hacking provisions to include activities such as violating a website’s terms of service or a company’s computer usage policy.… The 9th U.S. Circuit Court of Appeals, in limiting reach of the CFAA, said that violations of employee contract agreements and websites’ terms of service were better left to civil lawsuits.”

Unfortunately, that ruling applies only in the ninth circuit. “The Obama administration has declined to appeal the ruling to the Supreme Court,” Kravets writes, where it could be affirmed and applied nationwide.

Had that happened, there might have been no case against Swartz, because JSTOR did not want to sue him, even though he crashed its servers, and he agreed not to distribute the material. (MIT had not declined to prosecute.) Subsequently, JSTOR opened its database to the nonacademic public.

So why make an example of Swartz? He was a highly public figure in the movement to safeguard the free flow of information on the Internet. Among his accomplishments was his help in defeating bills in Congress that would have given the executive branch broad authority to shut down websites accused of containing copyrighted material. The Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA) had the backing of powerful industries, such as Hollywood, but a grassroots effort led by Swartz and others forced withdrawal of the bills — a big setback for those who use “intellectual-property” laws to impede the sharing of information.

Swartz previously ran afoul of the government when he provided free access to records in a public federal court database. (The government requires payment by the page.) But no charges were filed.

Swartz was a passionate champion of technology’s power to liberate and democratize. He vowed to fight anything which threatened that potential. This offended powerful vested interests.

A few days after Swartz took his own life, Javert — I mean Ortiz — dropped the charges.

Nunca es posible entender del todo los problemas en los que se encuentra una persona, o la influencia que esos problemas puedan tener en la decisión de alguien que se quita la vida, pero no es descabellado pensar que la sentencia de 35 años de prisión y la multa de un millón de dólares que gravitaba sobre la cabeza de Aaron Swartz hayan sido un factor significativo en su elección.

Tal como se lo planteaba John Kerry a un comité del senado estadounidense (al que él después sería electo) en 1971, “¿Cómo se le pide a un hombre que sea el último en morir en nombre de un error?”.

Esa fue una de las primeras preguntas que inundaron mi mente la semana pasada cuando escuché que Swartz se había ahorcado en su departamento de Brooklyn.

Con solo 26 años de edad Swartz ya había vivido una vida llena de logros, desde ser el coautor del estándar RSS (la herramienta primaria para sindicar contenido web) a los 14 años hasta ser el fundador de Infogami, que luego se fusionó con la popular red social Reddit, y ser co-fundador de “Demand Progress”, una organización promotora la libertad de Internet.

La sentencia de prisión y la multa emanaron de su intento por cumplir con la misión declarada de una organización sin fines de lucro de “ayudar a la comunidad académica a tomar ventaja de la rápida evolución de las tecnologías de información y redes”: Descargó cuatro millones de artículos académicos de JSTOR a través de una cuenta del MIT con la intención de hacerlas universalmente disponibles vía tecnología P2P.

Para esto fue acosado hasta la muerte por la fiscal estadounidense Carmen Ortiz y los fiscales adjuntos Stephen P. Heymann y Scott L. Garland, aunque el mismo JSTOR declinó litigar civilmente y desde entonces ha dado acceso público a millones de esos artículos.

Sinceramente espero que Swartz pase a la historia como la última víctima de la guerra sobre la “propiedad intelectual” — una guerra de 300 años que para todos los propósitos prácticos terminó hace años con el triunfo de las fuerzas de la libertad y la total derrota de aquellos cuyas fortunas dependen del poder del estado para extraer rentas del uso que la gente hace de sus propios cuerpos y mentes.

Desde el estatuto de la reina Ana de Inglaterra de 1710, los rentistas han estado dando peleas cada vez más espúreas para mantener y beneficiarse de la ficción de la “propiedad intelectual”. Incluso en una época en la que las imprentas eran escasas y los medios electrónicos inexistentes, la exigibilidad era imposible. A lo más que podían aspirar era a desanimar el copiado de las obras “dando el ejemplo” con el castigo de algunos de los infractores prominentes.

El amanecer de la era de Internet fue el Appomatox de las guerras de “propiedad intelectual”. Los equipos para copiar data y los canales para distribuirla ya son asequibles de forma barata y globalizada. En las “naciones avanzadas” representan una inversión prácticamente trivial, y en el “Tercer Mundo” representan una inversión factible.

Las persecuciones y los enjuiciamientos de infractores de “propiedad intelectual” como Jammie Thomas e innovadores de la distribución como Aaron Swarz ni siquiera llegan al nivel de escaramuzas de retaguardia o medidas desesperadas de último recurso en esta guerra. Se asemejan más bien al asesinato de Abraham Lincoln por parte de John Wilkes Booth después del rendimiento de Lee, o la amenaza de ataques “werewolf” en la Alemania ocupada al final de la segunda guerra mundial. No podrán alterar el resultado. Son arrebatos rabiosos y asesinos que surgen como consecuencia de negarse a la realidad.

Se. Acabó. El. Copyright. Y a las patentes les queda poco. La única esperanza de las viejas compañías de medios es renunciar a sus fallidos monopolios y redes de extorsión creados por el estado, y aprender de una vez por todas como generar beneficios a través del intercambio voluntario.

Artículo original publicado por Thomas L. Knapp el 13 de enero de 2013.

Traducido del inglés por Alan Furth.

“How,” John Kerry asked a committee of the US Senate (to which he himself would later be elected) in 1971, “do you ask a man to be the last man to die for a mistake?”

That question was among the first that came to mind last week when I heard that Swartz had hanged himself in his Brooklyn apartment.

Swartz was 26 and had already lived a life packed with accomplishments, from co-authoring the RSS standard (the primary tool for syndicating web content) at 14 to founding Infogami, which later merged into the popular Reddit social site, to co-founding the Internet freedom organization Demand Progress.

The threatened prison sentence and fine emanated from his attempt to fulfill a non-profit organization’s own stated mission of “helping the academic community take full advantage of rapidly advancing information and networking technologies”: He downloaded four million scholarly articles from JSTOR via an MIT account with the intention of making them universally available via P2P technology.

For this, he was hounded to his death by US Attorney Carmen Ortiz and Assistant US Attorneys Stephen P. Heymann and Scott L. Garland, even though JSTOR itself declined to pursue civil litigation and has subsequently made millions of those articles publicly available.

I sincerely hope that Swartz will go down in history as the last casualty of the war over “intellectual property” — a 300-year war that, or all practical purposes, ended years ago in triumph for the forces of freedom and a total rout of those who rely, for their fortunes, on the power of the state to extract rent on people’s use of their own minds and bodies.

Since England’s “Statute of Anne” in 1710, the rentiers have been fighting increasingly dubious battles to maintain and profit from the fiction of “intellectual property.” Even at a time when printing presses were rare and electronic media non-existent, enforcement was impossible. The best they could hope for was to discourage copying by “making an example” of a few of the most prominent scofflaws.

The dawn of the Internet Age was the Appomattox of the “intellectual property” wars. The equipment for copying data and channels for distribution of that data are now cheaply and globally available. They represent a nearly trivial investment in “advanced” nations, and a doable investment even in the “Third World.”

The persecutions and prosecutions of “intellectual property” scofflaws like Jammie Thomas and distribution innovators like Aaron Swartz don’t even rise to the level of rearguard actions or last-ditch measures in this war. They’re more along the lines of John Wilkes Booth’s assassination of Abraham Lincoln after Lee’s surrender, or the threatened “werewolf” attacks in occupied Germany at the end of World War II. They will not and cannot affect the outcome. They’re just murderous tantrums in lieu of facing reality.

Copyright. Is. Over. And patent is on its last legs. The old media companies’ only chance of survival is to give up their failed state-created monopolies and protection rackets, and figure out how to generate profits through voluntary trade instead.

Translations for this article:

• Spanish, Aaron Swartz y las Tozudez Irracional de la Propiedad Intelectual.

Buchanan thought of himself as a classical liberal and an Austrian economist — but neither a leftist nor an anarchist. But that doesn’t mean left-wing market anarchists don’t have important lessons to learn from him, particularly with regard to two of his most important contributions to social theory.

First, Buchanan pioneered public choice analysis — looking at the behavior of institutional actors, and especially state actors, as ordinary people with ordinary motivations who don’t acquire new fundamental values and attitudes and goals simply because they occupy particular positions. Public choice analysis emphasizes the fact that there’s no reason to expect politicians and other state functionaries to be more “public-spirited” than their counterparts in the corporate sector (and perhaps even less so, given the difficulty of measuring their performance and holding them accountable).

Embracing public choice analysis is, in particular, quite compatible with seeing politicians and bureaucrats as acting in light of motives as shaped by their cronyish relationships with business elites or, indeed, their ability to maximize their own wealth using political power. Public choice analysis isn’t identical with class analysis, not least because the latter assumes not merely that politicians’ motives aren’t any better than ordinary people’s, but, in fact, that they’re worse, for predictable reasons. But the two are naturally complementary. Public choice analysis points to one way in which the state functions as a tool of economic redistribution — not from the rich to the poor, but from everyone, including the poor, to the privileged. Buchanan’s notion that politics should be viewed “without romance” helps to make clear why the hope that the state will save ordinary people from the predatory corporate elite is naïve at best. A one-time self-described socialist, who remembered the arbitrary preference given to people with wealth during his time in the military during World War II, Buchanan could hardly be displeased by this result.

Second, Buchanan called attention to the importance of constitutional constraints on the exercise of state power. His work in constitutional economics focused on, among other things, the logic of institutional design—on the formulation of rules for political decision-making that could be expected to yield desirable economic outcomes. His own work employed a broadly contractarian approach to the justification of a state with limited powers. But it could certainly be taken in a more radical direction. When he rehearsed his Nobel acceptance speech at George Mason University, he observed, in the course of responding to criticism from his audience, “If this argument fails, I’m an anarchist.” And, precisely in light of his own concerns about the potential abuse of state power, there’s a plausible case to be made for the view that the right sort of constitutional order, the sort capable of fostering prosperity and protecting autonomy, is a polycentric one: market anarchism is the best sort of constitutionalism. It is perfectly possible to argue, building on Buchanan’s own analyses of the behavior of state officials and of the logic of constitutionalism, that the best way to constrain state rapacity is, as a number of Buchanan’s students have argued, by doing without the state altogether.

Buchanan’s elegant and careful analyses were not the last word on public choice or constitutional economics. From a left-wing market anarchist perspective, they were insufficiently critical of the status quo. But they paved the way for more radical analyses of the political and legal order, analyses which will doubtless continue to be enriched by Buchanan’s own.

Of those many things, the two we’ll most likely see invoked over and over are “gadfly” and “cynic.” He was never afraid to speak the ugly truth to power, while simultaneously and impudently tweaking power’s nose.

Politically, he was the prototypical Old Right Leftie: Scion of a political family (his father was a New Deal bureaucrat before founding three airlines; his maternal grandfather a US Senator from Oklahoma), raised in the imperial capital, a personal transmission belt connecting the “isolationism” and conflicting aristocratic/egalitarian mindsets of the 1930s political class to the 21st century’s remnant opposition movements of all types.

His long-running feud with the late William F. Buckley, Jr. encapsulated the politics of the last half of the 20th century in serial vignette form (the high point being Buckley’s meltdown, live on national television, as the two provided dueling commentary on the 1968 Democratic National Convention — “Now listen, you queer. Stop calling me a crypto-Nazi, or I’ll sock you in the goddamn face and you’ll stay plastered”). As Buckley moved to reconcile the conservative movement with the total state, Vidal in turn attempted to salvage such value as the dying (at Buckley’s, among others, hand) political right embodied and fuse it with his leftist analysis of decadence in the political status quo.

To my mind, Vidal’s greatest gift to his readers as a biographical and historical novelist (which is the part of the elephant that this particular blind man usually latches on to) was his ability to tear down power while, and by, humanizing the powerful. He single-handedly rehabilitated Aaron Burr (at the expense of, among others, Thomas Jefferson). His Lincoln brought America’s 16th president down from the pedestal, laying bare the hypocrisies of the Civil War era while simultaneously cutting Lincoln as a genuinely sympathetic figure.

Among his wholly fictional efforts, Kalki is arguably the human political comedy distilled to its essence, taking the will to power to its inevitable ends.

Vidal was no anarchist, nor arguably even a libertarian of other than the “civil” variety. His value as a critic of the existing system, however, was in no way lessened by that fact. If he failed to find the solution, he at least had a keen eye for the problem: “The genius of our ruling class,” he’s quoted in various places as saying, “is that it has kept a majority of the people from ever questioning the inequality of a system where most people drudge along, paying heavy taxes for which they get nothing in return.”

I’ll miss Gore Vidal. And I’ll remain thankful that so many of his insights are immortalized in print.

Ostrom remains an academic unlike many others. She transcended the debates found in most of the dogmatic Marxist, libertarian and heterodox economic circles by subverting the ideological divides, understanding that complex questions would require involved and complex answers, complex because the findings would have major social and economic implications:

– Are individuals motivated by considerations other than crude selfishness?
– Are individuals forever locked in a struggle against each other for power and control?
– Can individuals overcome substantial barriers to address critical issues such as climate change?

Ostrom (and her husband Vincent who survives Elinor and also a principal theorist in polycentric institutional orders) explored these questions by trying to understand how the “science and art of association” is utilized by real people situated in social dilemmas. The evidence of Ostrom’s work points to yes; humankind has the capacity to develop community based solutions and act concertedly to avert disasters.

But, were it not for the pioneering work of Ostrom, we may very well be stuck mired in the old debates of hegemony, public versus private, or the efficacy of expert over local, tacit knowledge. Ostrom leaves us a legacy of aspiration for the greater good of individuals, individuals with the capacity to work together for a better future, and to manage their own affairs. Because of her work, we are freed from having to apologize for challenging public policies which place authority in the hands of the few, and instead we are all now bolstered with the knowledge that “the many” have enormous capacity to control their own fate.

Myself, I am honored to be entering the Indiana University Vincent and Elinor Ostrom Workshop in Political Theory and Policy Analysis as a visiting scholar. I will be carrying on the Ostrom tradition by plying their theories of polycentrism, democratic governance, and local public economies to better understand the U.S. co-operative sector. The core idea is to build upon their orientation that society is more than just the state or the market, but instead a rich tapestry of institutions crafted to meet the needs of those who depend upon them, that institutional form matters in their impact on the community hosting them. Cooperatives may indeed be a corrective force for the current societal decay (as I believe), but until further scientific exploration, we cannot know; thankfully the Ostrom Workshop provides invaluable tools to guide us in our search toward these truths.

While saddened that I never will have had the opportunity to work with such a remarkable person, I am lucky to have met Ostrom on two occasions and to work with a research center shaped by such brilliance.

Ostrom’s work expresses both a deep concern for the trajectory of humankind and an optimism in our capacity to solve these common dilemmas. Thankfully, her work has provided us with substantive clues as to how we might build toward that capacity. I hope that we all might aspire to not only be as intellectually curious as Ostrom, but also humbly driven to tackle these issues without fear and with great haste. Now more than ever, we need individual leaders capable of emulating the broad vision that Ostrom, her husband, and the Workshop has set forth.

Dilemmas of corporate and state power, economic collapse, climate change, and community resilience will not be solved by the grand designs of centralized management. Doing nothing is in a sense blind faith in our current system that has become unmoored from the Tocquevillian foundation of citizen democracy. We cannot become dependent by relying on those (politicians or “job creators”) who set us along our current catastrophic chain of events to free us from “the pain of living” and “the trouble of thinking.” If we want to see a different world, change must come from ourselves.

It will be you.

And me.

Ostrom never said democracy was a simple process. It won’t be easy. But we have the capacity to do it. And the fact that Ostrom showed us that when so many others refused to believe it is a remarkable legacy. I say, let’s do this.