In the past three decades, since the ascendancy of the United States in the process of determining international copyright policy and rules, considerable bitterness has entered debate about copyright. Many individuals have objected to the attitude of the United States government to copyright legal infraction around the world. Many Americans have also protested at their government’s vehement attitude to real or alleged copyright infringements of US citizens.

Anger swelled at the government’s prosecution (2011–2013) of Aaron Swartz. Aaron Swartz was a programmer of prodigious ability, ‘a kid genius’,¹ and later advocate for public freedom from corporate or government oppression.² On 11 January 2013, he hanged himself in his Brooklyn apartment, aged 26.

Between September 2010 and January 2011, Swartz logged into the Massachusetts Institute of Technology’s digital network to download millions of public domain academic articles from the JSTOR digital library. He connected remotely and by direct wire link. Download volumes exceeded guest user privileges and conventional download limits. In early January 2011, MIT recorded him entering and leaving a network wiring closet where he attached concealed a laptop for download. Notified by MIT, police arrested him.

Once Swartz supplied to JSTOR the hard drive cache of files downloaded, JSTOR declared itself uninterested in pursuing legal action against him. The US Attorney for Massachusetts, however, prosecuted under computer and wire fraud legislation. A 2011 Massachusetts Grand Jury indictment alleged six violations, increased in 2012 by nine felony counts.

After issuing of the first indictment, the US Attorney said in a press release that Swartz, ‘faces up to 35 years in prison . . . restitution, forfeiture and fine of up to $1 million.’ Before his death, her office offered Swartz a plea bargain of conviction and 6 months in a low security prison.

The tragic circumstances of his death did not obscure recognition of Swartz’s talents and public contributions, and he swiftly became fixed in public memory as a quintessential figure, young, bold, expressing in his life his ideals about freedom, universality and the liberating use of technology. Among members of bisecting circles of people concerned by restriction of information access and political freedom, his death caused palpable public grief and anger. Some blamed the Justice Department for precipitating suicide by pursuing pre-trial tactics of intimidation and aggression.

Debate over the Justice Department’s conduct³ essayed the proposition that many or most prosecutors try to secure plea bargains by suggesting the likelihood of lengthy sentences for a convicted felon. By implication, the Justice Department acted towards Swartz as it does to most individuals accused of crimes. Even allowing a neutral attitude on the part of prosecutors, two questions linger: why was Swartz indicted for criminal offences, and what does his treatment suggest about broader government attitudes to future information regulation?

Prosecutors charged Swartz, under the wires and computer fraud legislation, for engaging (in substance) in fraudulent property appropriation. Conceptually, the authors of Swartz’s indictment document hardly distinguish between abstract and tangible property. What matters above all is the crime of theft. The indictment states twice that Swartz acted to ‘steal’ from JSTOR. ‘Property’ is defined twice, once as ‘real or personal’ and a second time as JSTOR’s collected articles. Choice of legislation to frame charges precluded consideration of the differing policies informing legal treatment of non-excludable and excludable property. Such consideration, had it occurred, must have led to focus on harm caused, and invited consideration of intent.

The focus on theft, or ‘stealing’ lies at the heart of bemusement at prosecutors’ attitude to Swartz. Swartz, apparently, intended a gesture against enclosure of knowledge, even if the putative encloser is a not-for-profit disseminator like JSTOR. He presumably knew that his gesture would not be regarded as morally neutral. A person seeking to download material in a way that contravenes download conditions is aware of transgression: the omission (which may be a wrong) lies in acting without consent. Such a person, however, does not perceive correlation between unauthorised downloading and, for example, hijacking a cash transport van to steal its contents.

The peculiarity in prosecutors’ analysis is that they seemed unable to distinguish between an act directed towards public welfare—Swartz’s mammoth downloading for purpose of public dissemination—and any other act directed towards, or involving, public harm, such as hijacking a cash transport van.

To characterise Aaron Swartz, who intended public benefit, as felonious, to contemplate that his behaviour placed him in a cohort of people who might be bent against public good, is to repudiate an idea of public welfare with which he concerned himself in life. To call Swartz’s downloading theft, punishable by decades of servitude, is to merge ideas about the material and transcendental. Investing academic articles, or any other kind of property, with sacerdotal value, and by extension, treating theft as sacrilege, is to distort reality.

Psychologically, Swartz’s arraignment betrayed a sovereign’s hatred at denial of its sovereignty. This supposition is illustrated by a blog entry in which Swartz unknowingly foretold his own unravelling in the teeth of sovereign power. After his indictment, a trial lawyer Max Kennerly suggested that Swartz read Franz Kafka’s The Trial. A few months later, Swartz blogged about the book, ‘I read it and found that it was precisely accurate – every single detail perfectly mirrored my own experience.’⁴

In another play, Kafka’s protagonist is condemned by his father with the words, ‘I sentence you to death by drowning.’ In Kafka’s Letter To His Father (1919), he describes his father as despot, overshadowing his life. In The Trial, Kafka makes clear that K is murdered by inimical exercise of power that issues from a single source of authority—its own will. Kafka’s father displays the same monstrous will. He does not propose his son’s execution, but Kafka does not doubt that resistance to his will is a capital offence.