The tepid mainstream “defenses” of Aaron Swartz

We enemies of copyright are understandably upset by the Aaron Swartz tragedy.¹ He was an innocent, heroic Internet freedom activist. He downloaded some files from JSTOR—not a real crime by any reasonable standard of justice—and then his Javert-like federal persecutor hounded him and threatened him with decades in a federal cage and a lifetime as a federal felon. Faced with the onslaught of our Kafkaesque “justice” system, Swartz ended his life, in a sad yet heroic act of defiance. I can’t say “good for him” because I weep for his anguish, his torment. But he gave the feds the finger, in his own way. (Federal copyright persecution leads RSS co-author and anti-SOPA activist Aaron Swartz to kill himself.)

This tragedy was caused not by “overzealous” prosecutors but by copyright law itself. Without copyright law, Swartz’s actions would not even have been a breach of contract, much less a crime.

So it is a bit galling to see people bemoaning the Swartz tragedy while still supporting copyright law. Sure, most of them support copyright “reform,” but they do not call for its abolition. Case in point: Tim Lee and Lawrence Lessig: “some punishment” of Swartz was “appropriate”. Ah, I see. “Some punishment” was “appropriate”—and we need “some” copyright, and thus, “some” penalties—but this crazy prosecutor went “too far”! She was unreasonable. It’s her fault! If only she had interpreted the evil copyright statute in a more reasonable way.

It’s almost like conspiracy theorizing: 9/11 was caused by some inner cabal of cigar-chompers; implying that if we could only identify these shadowy characters and expose their machinations, all would be well. Conspiratorialists cannot accept that the system itself is the problem. As Burke said, “The thing! the thing itself is the abuse!”

Likewise, people who support the state’s existence, its right to legislate, and, indeed, its legislated imposition of a copyright scheme, cannot blame copyright itself for tragedies like the Swartz case. Or Richard O’Dwyer, the British student facing extradition for having the wrong links on his site. Or the 37-year-old man imprisoned for 15 years for piracy. Or the Six Year Federal Prison Sentence for Copyright Infringement. Or the Man sentenced to federal prison for uploading “Wolverine” movie. Or the potentially millions of dollars of statutory copyright liability faced by Jammie Thomas for sharing 24 songs.  Or Kim dotcom’s arrest, in a raid by dozens of New Zealand police, orchestrated by the FBI. Or the criminalization of unlocking one’s own cell phone ($500,000 in fines and up to 5 years in prison … for the first offense). Or the threats posed to innovative new businesses, like Pinterest, by copyright. Or dozens of cases of outright censorship in the name of copyright. Or the possible banning of sales or library lending of used books published outside the US.  Not to mention the threat to Internet freedom posed by SOPA and ACTA.

No, the copyright reformers and moderates can’t strike at the root. Instead, they have to point to “abuse” of the system, and “unreasonable” or “overzealous” prosecutors. And, of course, they call for “reform” of the copyright system at the same time. But only reasonable reform, mind you. Nothing radical, like repealing the hideous, monstrous state-run apparatus of thought control that is copyright.

And so we have libertarians like Cathy Young opposing SOPA, but not opposing copyright, and various copyright reformers like Lee and Lessig who criticize the prosecution of Swartz, while admitting he deserved some punishment—copyright is the law, and he did break the law, and, well, we need some copyright. Don’t we?

I was reminded of all this by a The Nation article, Government Persecution, From Aaron Swartz to Bradley Manning. The left are no better on IP than the right are; they are all patent and copyright fascists, so they have no grounds to act superior here. You don’t hear the democrats and leftists, who pretend to be “liberals,” calling for abolition of patent or copyright. No; they are all for the censorship of government issued copyright, and the misery that it causes. The Nation piece says:

Dean Baker estimates that reforming the patent law regime for pharmaceuticals—currently a system that guarantees Big Pharma’s monopolies—would shrink annual spending on prescription drugs from $300 billion to $30 billion, a savings some five times the annual cost of Bush’s tax cut for the richest 2 percent. Meanwhile, grotesquely prolonged copyrights for literary and artistic properties are fencing off the cultural commons, a boot on the throat of a generation’s creative voice.

Yet Dean Baker is no opponent of copyright or patent or federal or state power. As I noted in The Economist: Copyright Is An Antiquated Relic That Has No Place In The Digital Ages, Baker is not opposed to state-granted intellectual property, though he does toy with the idea of using taxpayer funded multibillion-dollar “artistic freedom vouchers” to promote artistic creation as some kind of improvement on copyright, and $30 billion/year in taxpayer funded subsidies for medical innovation. He’s also bad on §230 reform.

And speaking of patents, we see the same pattern played out as with copyright. Patents impose hundreds of billions of dollars of cost on the economy and impede and distort innovation and competition; patent literally kill people (millions of people have died from AIDS in Africa because Big Pharma and the US have blocked generic drugs in the name of patents; by making cars less safe; by denying lifesaving drugs to people with Fabry disease); patents even impose censorship, and are threatening the entire industry of podcasting; patents give rise to free trade restrictions by blocking drug reimportation.

And yet many libertarians and free market proponents blame these things on abuse of the law by inept or corrupt government officials, or on distortion of the law by special interest groups; they cannot bring themselves to make the glaringly obvious and simple diagnosis that all these evils are a perfectly predictable outcome of patent and copyright per se. For then they might have to take a—heavens to Betsy!—radical (read: principled) position on IP.

It is truly mind boggling that supporters of free markets and libertarianism would ever support any degree of patent or copyright law, or, even if they mistakenly once thought such systems were compatible with free markets, that they would continue to support IP even now, when they cannot help but see the death and devastation wrought by IP.

The problem is not abuse of patent and copyright law; the problem is IP  itself. The solution is not to improve or reform copyright and patent. It is to abolish them. Every defender of liberty should see this.

1. See, e.g., Jeffrey A. Tucker, “Aaron Swartz, Hero and Martyr,” in Liberty.me: Freedom Is a Do-It-Yourself Project (Liberty.me, 2014); also here. [↩]