As we noted earlier, one thing that Aaron Swartz would have almost certainly wanted, as a memorial for his own accomplishments, would be for others to continue that work and to do much more with it. It's a small thing, but it's been inspiring to watch one aspect of that come to life: some academic researchers suggested a bit of simple civil disobedience in asking other researchers to post their own research publicly for others to download, and use the tag: #pdftribute. Many researchers quickly jumped at the chance, leading some to set up a website, appropriately called PDFtribute.net to collect all the tweets and the links to all of that research.

It's unclear how much of that research is technically "allowed" to be published like this. If you're not familiar with the dirty sausage making of academic research, many journals claim all copyrights on research (despite not paying a dime for it -- and, in some cases, even requiring the researchers or their institutions to pay to submit the papers in the first place). Many then have policies that bar the original researcher from further distributing the work, so it's likely that some of the released research is in violation of those agreements. That said, over the past few years, more and more journals (often due to significant pushback from academics) have recognized how ridiculous this is, and many have started to allow -- either officially or with a nod and a wink -- academics the right to post free copies of their own research on their own website. A few, much more enlightened journals even encourage researchers to post the work.

Either way, if one of the legacies of Aaron Swartz's all-too-short life is to get more people interested in open access to research, and to drive that movement forward, that's a good thing.

A long time ago, in a magazine far, far too female-oriented for me to read...

It is a period of intellectual property wars. Rebellious forces, striking from the internet, have pointed out several times in the past the hypocrisy of people like George Lucas, who at times jealously guard aspects of their creation despite evidence of his own work being a mixture of borrowed culture.

During these wars, spies managed to link to one possible example of George Lucas borrowing culture for his ultimate movie opening, THE TEXT CRAWL, possibly borrowed from an advertisement that appeared in Vogue magazine several years before the first Star Wars film premiered.

Pursued by the copyright Empires, Prince Geigner raced to post the picture of the Vogue ad, uncertain evidence that even those that embrace intellectual property know deep down the way culture works throughout the galaxy....

International math tests seem to consistently show that Americans don't have competitive math skills. We can argue that these tests don't measure real-life capabilities, but it might also be nice to see math test scores rise someday. Given the growth of online educational tools, the accessibility of good (and effective) math lessons will hopefully help to improve everyone's math talents. Here are just a few interesting links on the topic of math.

• A study of German math students suggests that parental pressure and good grades don't provide lasting incentives for kids to learn math skills. It seems obvious that the motivation behind learning would affect how well a student learns, but the conclusion could have some interesting effects on education policy and how to most effectively teach children. [url]
• Equations Squared is an online math game that assesses a player's skills as he/she plays -- awarding points for more complex mathematical understanding. The story of how this game was created is interesting, and the game won the grand prize in the ETS Math Assessment Game Challenge. [url]
• Math textbooks are created by a publishing industry which doesn't necessarily care about the quality of education. There are a lot of problems in the US education system, but there may be some creative destruction in store for the textbook industry. [url]
• Adding a nonsensical math equation to your writing can give it a bit more authority. a^n+b^n=c^n QED [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post.

As Tim Cushing recently wrote, Australia's Classification Board (whatever the hell that is) decided that this was the year. The year for what, you ask? Well, the year to acknowledge that people over the age of 15 exist within their borders. It seems a little silly that, prior to 2013, Australia's governing bodies chose not to acknowledge that the age of the average gamer is something around thirty years old. Emboldening the morality police "for the children" is one thing, but to do so for law-abiding adults is quite another. I think it showed an immense amount of disrespect towards the Aussie public that it took so long to entrust with them their own entertainment choices.

In any case, Australia has followed through and reached a milestone hitherto unimaginable: the very first R18+ game has been classified, and the honor goes to Ninja Gaiden 3: Razor's Edge. According to the Classification Board:

“Ninja Gaiden 3: Razor’s Edge contains violence that is high in impact because of its frequency, high definition graphics, and emphasis on blood effects.”

So congratulations to Australian adults, who can now play the game as it was meant to be played: bloody, violent, high in impact and in high in definition. I have to imagine that the only thing sweeter for Australian adults than the ability to finally play these kinds of games is the delicious irony in how Australian Rules Football, which is televised, fits the Classification Board's description almost exactly. Foster's all around for everyone!

I know that many people get up in arms over the concept of corporate personhood, but the reality is often a lot less problematic than many people make it out to be. It's not a concept that is free from problems, but it's not quite as silly as some argue. Still, it sometimes does lead to some amusing stunts. For example, a couple years ago, a company tried to run for President, in an effort to make a statement on the issue. Up in Marin County (just north of San Francisco) an activist has tried a similar move, arguing that he's able to drive in the carpool lane without another human passenger because he had incorporation documents for a company riding along in the passenger seat. Apparently, he's actually been doing this for about a decade, just waiting to get pulled over.

It finally happened and the driver, Jonathan Frieman, made his argument -- and the somewhat befuddled patrolman told Frieman to take it up with the court. That finally happened recently, and Frieman's lawyer actually made a fairly compelling legal argument. He noted that California Vehicle Code Section 470 specifically defines a "person" by saying it "includes a natural person, firm, copartnership, association, limited liability company, or corporation." It also discusses the carpool lane by saying, "No person shall drive a vehicle upon those lanes except in conformity with the instructions imparted by the official traffic control devices." Finally, the street signs themselves say "2 or more persons per vehicle." Thus, his lawyer argued, at the very least, this is unconstitutionally vague.

“Central here is the concept of double meaning,” Greene said in court. “Citizens should not be left to guess when he or she is in violation of the statute.”

The judge, however, did not buy it, pointing to another section of the Vehicle Code, on the purpose of the carpool lanes:

Judge Drago also referenced California Vehicle Code 21655.5, noting instead subsection F, which states “It is the intent of the Legislature, in amending this section, to stimulate and encourage the development of ways and means of relieving traffic congestion on California highways and, at the same time, to encourage individual citizens to pool their vehicular resources and thereby conserve fuel and lessen emission of air pollutants.”

He then noted that Frieman's workaround didn't match the intentions.

It seems like the judge may have gotten to the right answer, but I'd argue for the wrong reasons. First of all, while the intention of the legislature is helpful, it doesn't excuse it from poorly written legislation which could be seen as being unconstitutionally vague. However, it seems to me there's a much easier way for the judge to reach the same conclusion without going down that path: just point out that incorporation documents are not the corporation itself. That's both accurate and would solve the issue. Incorporation documents explain that a corporation has been created, but they are not "the corporation." A birth certificate may announce the arrival of a person, but the document itself is not "a baby." I'm somewhat surprised the judge didn't just go with that as an answer.

Either way, it sounds like this isn't over, as Frieman has announced his intentions to file an appeal -- which is to be expected, since much of this really appears to be a form of protest against the very concept of corporate personage.

About the only good advice I've ever given anyone about the way in which we spend our time on the interwebz was this: don't take any of it too seriously. Having a sense of humor is essential for getting through internet sites and forums, or else the cacophony of "Vote [insert election candidate de jour here]!", "Obama murdered my mom in Kenya as a child!", and all the other mindless shouts and incorrect facts you'll find on a nearly unlimited basis will drive you fully insane. We've talked before about how humor can help you utilize internet piracy to your own ends, for instance. Conversely, the lack of a sense of humor can also result in stupid legal fees.

And, it turns out, a sense of humor can apparently help a presidential administration deal with internet pranksters. Someone (we're looking at you, 4chan) thought it would be funny to start a "We the people" petition for the United States government to build a death star, and it gained enough signatures to require a response. And respond the administration certainly did, in a short essay titled "This isn't the petition response you're looking for."

"The Administration shares your desire for job creation and a strong national defense, but a Death Star isn't on the horizon. Here are a few reasons:

-The construction of the Death Star has been estimated to cost more than $850,000,000,000,000,000. We're working hard to reduce the deficit, not expand it.
-The Administration does not support blowing up planets.
-Why would we spend countless taxpayer dollars on a Death Star with a fundamental flaw that can be exploited by a one-man starship?

And that's just the beginning. The essay goes on, with several more memorable quotes and a nod to the international space station as an actual space station the government has in part developed. Now, it would have been quite easy for the administration to ignore this particular petition, rules be damned. No one would have cried foul if they hadn't responded. But by responding, they endear themselves not only to the people who put forth this petition, but anyone reading the story about it as well. It's quite easy for us to talk about government as though it's just some big robotic thing. We forget that government is people, but lines like:

"Even though the United States doesn't have anything that can do the Kessel Run in less than 12 parsecs, we've got two spacecraft leaving the Solar System and we're building a probe that will fly to the exterior layers of the Sun."

...remind us of who we're dealing with. Kudos to our government for showing that they have a sense of humor and that they've hired at least one person who can make enough Star Wars references to placate fans like me. On the other hand, shame on that same government for taking the time to respond to this petition before responding to a plethora of others far more serious in nature.

Many have noted that the US Attorneys had made a new filing on the day that Aaron Swartz committed suicide. While the filing may look like just a standard procedural filing, some are pointing out that it highlights some highly unusual activity in the case. It had to do with Swartz's motion to get some of the evidence blocked from being used in the case, over questions concerning how it was collected. But one of the key things that come out is that, for unexplained reasons, the Secret Service took over the case just two days before Aaron was arrested:

MIT and JSTOR conferred regarding methods to prevent excessive downloading. Timeline at 3-4. On December 26, 2010, there was another episode of excessive downloading, which MIT personnel did not learn of until on or about January 3, 2011. On the morning of January 4, 2011, at approximately 8:00 am, MIT personnel located the netbook being used for the downloads and decided to leave it in place and institute a packet capture of the network traffic to and from the netbook. Timeline at 6. This was accomplished using the laptop of Dave Newman, MIT Senior Network Engineer, which was connected to the netbook and intercepted the communications coming to and from it. Id. Later that day, beginning at 11:00 am, the Secret Service assumed control of the investigation.

As Emptywheel points out, it doesn't make any sense for the Secret Service to be involved in such an issue:

According to the Secret Service, they get involved in investigations with:

• Significant economic or community impact
• Participation of organized criminal groups involving multiple districts or transnational organizations
• Use of schemes involving new technology

Downloading scholarly articles is none of those things.

The same filing shows that MIT allowed all of this to happen despite no warrant, court order, or subpoena -- just handing over all sorts of info.

The disclosure took place only after the MIT General Counsel’s Office approved the disclosure of the information to law enforcement authorities even in the absence of a warrant or court order or subpoena – and at a time when MIT personnel were acting as government agents – and in contravention of MIT policy that such information, which exceeded that found in bank records or telephone toll records, would be disclosed only upon the receipt of lawful court orders or subpoenas, i.e., process complying with the Stored Communications Act, 18 U.S.C. §2701 et seq. See Section IV, infra. In a separate email from Halsall to S/A Picket on January 8, 2011, Halsall told Pickett that he “hop[ed] to have the pcap/flows/videos/logs all in by to me Monday, possibly sooner – if you don’t already have a copy of the video or pcap [packet capture], I’ll make sure you get one.” Exhibit 2. No warrant or court order has been provided to counsel which would evidence the government’s having, even post-interception, acquired the contents of the warrantless interceptions by seeking judicial authorization as required.

As more and more people are looking at the details of what went down in arresting and pressuring Aaron, the case just looks worse and worse.

Last week, in writing about CBS's unquestionably stupid decision to interfere with subsidiary CNET when it covered Dish's new DVR device, all because CBS is involved in litigation against Dish over a similar device, I came very close to calling out reporter Greg Sandoval by name. Sandoval is an excellent reporter for CNET who has covered the Dish case in particular, along with numerous other copyright issues. I don't always agree with him, but I think he's a tough and fair reporter, and it seemed like CBS's decision would put his objective reporting in doubt. Minutes before posting the article, I pulled the sentence that included Sandoval's name, because I thought it was, perhaps, unfair to put him on the spot like that, and that each employee of CNET had to make a personal decision on how to handle the situation.

Now it appears that Sandoval has made his decision, announcing that he's resigned from CNET due to this situation:

Hello all. Sad to report that I've resigned from CNET. I no longer have confidence that CBS is committed to editorial independence.

— Greg Sandoval (@sandoCNET) January 14, 2013

As he notes, he no longer has confidence that CBS is committed to editorial independence. In later tweets, he notes that CBS never interfered with his own reporting, but that the situation was unacceptable and would lead others to call into question his own independence -- especially considering that Sandoval reported on the Dish case and other similar cases.

CNET wasn't honest about what occurred regarding Dish is unacceptable to me. We are supposed to be truth tellers.

— Greg Sandoval (@sandoCNET) January 14, 2013

This all comes out after further information on the story reveals that CBS didn't just bar CNET staff from considering the new Dish device for the "Best of CES" award, but actually forced staffers to re-vote after the device had already won the award:

The Verge has now learned that the facts of the case are somewhat different than the story CNET and CBS had previously shared with the public. According to sources familiar with the matter, the Hopper was not simply an entrant in the Best of CES awards for the site: it was actually chosen as the winner of the "Best of Show" award (as voted by CNET's editorial staff).

Apparently, executives at CBS learned that the Hopper would win "Best of Show" prior to the announcement. Before the winner was unveiled, CBS Interactive News senior-vice president and General Manager Mark Larkin informed CNET's staff that the Hopper could not take the top award. The Hopper would have to be removed from consideration, and the editorial team had to re-vote and pick a new winner from the remaining choices. Sources say that Larkin was distraught while delivering the news — at one point in tears — as he told the team that he had fought CBS executives who had made the decision.

Apparently the move to strike the Hopper from the awards was passed down directly to Larkin from the office of CBS CEO, Leslie Moonves. Moonves has been one of the most outspoken opponents of the Hopper, telling investors at one point, "Hopper cannot exist... if Hopper exists, we will not be in business with (Dish)."

The Verge report also notes that CNET/CBS Interactive folks fought hard against the decision from the top folks at CBS, but in the end were told they had no choice. While it's not too surprising that folks from the old gatekeeper system, like Moonves, would be so clueless as to think that such a move would not massively backfire, it's still stunning to see that he never appeared to think through the consequences.

Kudos to Sandoval for standing up for his principles. As a top reporter in the space, I have no doubt he'll land on his feet -- hopefully at a publication with more credibility. Let's see if other CNET reporters follow suit.

There has been a considerable amount of debate as to whether Canadian ISP TekSavvy should be doing more to protect its customer info from Voltage, the well-known copyright troll that is seeking subscriber information on thousands of IP addresses that allegedly shared infringing movies over BitTorrent. Though TekSavvy is still not directly opposing the motion, today it fought hard for an adjournment to give CIPPIC, a public interest group, time to request intervener status in the case. According to live tweets from some people covering the hearing, that adjournment was granted shortly after noon today.

While there is still a significant question as to whether TekSavvy should be taking a more direct role (as well as some pushback on that idea), today's events represent a victory for TekSavvy's customers, who now have someone (CIPPIC) taking up their cause, or at least trying to.

It also looks like the judge understands the complexity, and the gravity, of the situation. Apparently the judge has been asking questions about the specifics of what an IP address represents, the impact of Canada's new copyright legislation, and the overall implications of the case. The judge also suggested that this will not be resolved in a single day.

This case still has a long way to go, but it looks like we may be headed towards a full-scale test case for copyright trolling practices in Canada, with a judge who seeks a clear understanding of the issues at play. That, for now, is a good place to be.

As I stated in my initial post about Aaron Swartz's death, I don't think it's fair to "blame" the DOJ or others on Aaron's suicide -- just as I don't think it's fair to blame anyone's suicide on a third party, no matter how horrible their actions. That said, the DOJ's actions in this case were quite clearly horrible, and since the case will now never go forward, it seems imperative to highlight just how badly the DOJ acted in this case.

Larry Lessig's post made some clear points suggesting that the feds and MIT were out of line in pursuing this case, which seems like an understatement:

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars” — with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.

Aaron had literally done nothing in his life “to make money.” He was fortunate Reddit turned out as it did, but from his work building the RSS standard, to his work architecting Creative Commons, to his work liberating public records, to his work building a free public library, to his work supporting Change Congress/FixCongressFirst/Rootstrikers, and then Demand Progress, Aaron was always and only working for (at least his conception of) the public good. He was brilliant, and funny. A kid genius. A soul, a conscience, the source of a question I have asked myself a million times: What would Aaron think? That person is gone today, driven to the edge by what a decent society would only call bullying. I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.

Lessig made it clear that the feds sought to get Aaron to agree to a plea deal, in which he'd plead guilty to some aspect of the charges against him, in exchange for letting him off on the more serious charges. Aaron did an amazing thing and refused, believing that he had not done anything wrong:

In that world, the question this government needs to answer is why it was so necessary that Aaron Swartz be labeled a “felon.” For in the 18 months of negotiations, that was what he was not willing to accept, and so that was the reason he was facing a million dollar trial in April — his wealth bled dry, yet unable to appeal openly to us for the financial help he needed to fund his defense, at least without risking the ire of a district court judge. And so as wrong and misguided and fucking sad as this is, I get how the prospect of this fight, defenseless, made it make sense to this brilliant but troubled boy to end it.

And, for those who don't think that pushing back against the feds is an amazing thing, you have no clue how much pressure the federal government can put on you when it wants you to plead guilty. Two years ago I wrote about a documentary called Better This World, which is about an entirely different subject, but really opened my eyes to the way the feds handle some of these cases. It's not about what's right. It is entirely about them winning, getting the press coverage and "making examples" of people. And they'll go to amazing lengths, and create pressure that you and I can only have nightmares about, to get people to accept bogus "plea" deals, just so they can notch up another "win." It's scary, scary stuff. Fighting back may have been the right thing to do, but must have created a level of stress unimaginable to most people.

The WSJ has provided more details about the hard line that federal prosecutors had taken with Aaron, including last week's demand that he plead guilty to all counts and spend time in jail:

Mr. Swartz's lawyer, Elliot Peters, first discussed a possible plea bargain with Assistant U.S. Attorney Stephen Heymann last fall. In an interview Sunday, he said he was told at the time that Mr. Swartz would need to plead guilty to every count, and the government would insist on prison time.

Mr. Peters said he spoke to Mr. Heymann again last Wednesday in another attempt to find a compromise. The prosecutor, he said, didn't budge

In exchange for pleading guilty across the board, Heymann apparently promised that they would ask for a shorter sentence, though that's never a guarantee:

The government indicated it might only seek seven years at trial, and was willing to bargain that down to six to eight months in exchange for a guilty plea, a person familiar with the matter said. But Mr. Swartz didn't want to do jail time.

"I think Aaron was frightened and bewildered that they'd taken this incredibly hard line against him," said Mr. Peters, his lawyer. "He didn't want to go to jail. He didn't want to be a felon."

The report also notes that his girlfriend was unaware of any depressive episodes until right after Wednesday's decision by Heymann to refuse to budge on jailtime and a guilty plea on all counts.

As for the details of the case itself, they were absurd -- and it is no wonder that Swartz refused to plead guilty. Back in September, we delved into the ridiculous details of the final indictment -- which upped the felony count, all of which was based on the idea that he had done some sort of massive computer hacking for the sake of some criminal conspiracy. And yet... that was clearly never the case. As Tim Lee detailed, at worst, it appeared that Swartz might possibly be guilty of trespassing. Yes, he went into a computer closet at MIT, but he got access to a network which was open for all, and he downloaded documents that were made available freely to all on that network.

Many people have reasonably pointed to a blog post from Alex Stamos, the CTO of Artemis Internet, who had been brought on as an expert witness on Aaron's behalf. After demonstrating that his reports have been used on behalf of prosecutors in attacks, and pointing out that he's no friend of hackers, Stamos highlights in detail just how completely bogus the charges against Swartz were:

I know a criminal hack when I see it, and Aaron’s downloading of journal articles from an unlocked closet is not an offense worth 35 years in jail.

The facts:

• MIT operates an extraordinarily open network. Very few campus networks offer you a routable public IP address via unauthenticated DHCP and then lack even basic controls to prevent abuse. Very few captured portals on wired networks allow registration by any vistor, nor can they be easily bypassed by just assigning yourself an IP address. In fact, in my 12 years of professional security work I have never seen a network this open.
• In the spirit of the MIT ethos, the Institute runs this open, unmonitored and unrestricted network on purpose. Their head of network security admitted as much in an interview Aaron’s attorneys and I conducted in December. MIT is aware of the controls they could put in place to prevent what they consider abuse, such as downloading too many PDFs from one website or utilizing too much bandwidth, but they choose not to.
• MIT also chooses not to prompt users of their wireless network with terms of use or a definition of abusive practices.
• At the time of Aaron’s actions, the JSTOR website allowed an unlimited number of downloads by anybody on MIT’s 18.x Class-A network. The JSTOR application lacked even the most basic controls to prevent what they might consider abusive behavior, such as CAPTCHAs triggered on multiple downloads, requiring accounts for bulk downloads, or even the ability to pop a box and warn a repeat downloader.
• Aaron did not “hack” the JSTOR website for all reasonable definitions of “hack”. Aaron wrote a handful of basic python scripts that first discovered the URLs of journal articles and then used curl to request them. Aaron did not use parameter tampering, break a CAPTCHA, or do anything more complicated than call a basic command line tool that downloads a file in the same manner as right-clicking and choosing “Save As” from your favorite browser.
• Aaron did nothing to cover his tracks or hide his activity, as evidenced by his very verbose .bash_history, his uncleared browser history and lack of any encryption of the laptop he used to download these files. Changing one’s MAC address (which the government inaccurately identified as equivalent to a car’s VIN number) or putting a mailinator email address into a captured portal are not crimes. If they were, you could arrest half of the people who have ever used airport wifi.
• The government provided no evidence that these downloads caused a negative effect on JSTOR or MIT, except due to silly overreactions such as turning off all of MIT’s JSTOR access due to downloads from a pretty easily identified user agent.
• I cannot speak as to the criminal implications of accessing an unlocked closet on an open campus, one which was also used to store personal effects by a homeless man. I would note that trespassing charges were dropped against Aaron and were not part of the Federal case.

In short, Aaron Swartz was not the super hacker breathlessly described in the Government’s indictment and forensic reports, and his actions did not pose a real danger to JSTOR, MIT or the public. He was an intelligent young man who found a loophole that would allow him to download a lot of documents quickly. This loophole was created intentionally by MIT and JSTOR, and was codified contractually in the piles of paperwork turned over during discovery.

That's from someone who clearly had detailed knowledge about the situation. Other legal experts had come to similar conclusions after the original indictment came out. Way back when, we had pointed to an article by Max Kennerly in which he looked closely at the indictment and was left confused as to how it got as far as it did. Kennerly has since updated his post (both after the new indictment and again over the weekend, in which he notes that Stamos' post suggest that his own original analysis didn't even go far enough after discovering the details). Kennerly looked at how the case really revolved around whether or not Swartz's activities violated the terms of service, but given the details of the case, combined with Stamos' comments and the fact that (since Swartz was charged) multiple courts have ruled that a mere terms of service violation is not a violation of the Computer Fraud and Abuse Act (CFAA), this case seemed to have absolutely nothing legitimate.

Given the disclosures by Swartz's expert, Alex Stamos, which are linked at the beginning of this post, it seems that Swartz had a strong argument that he did indeed have "authorization." As Stamos says, at the time of Swartz's downloads, "the JSTOR website allowed an unlimited number of downloads by anybody on MIT’s 18.x Class-A network" and "Aaron did not use parameter tampering, break a CAPTCHA, or do anything more complicated than call a basic command line tool that downloads a file in the same manner as right-clicking and choosing 'Save As' from your favorite browser."

Thus, all Swartz did was write a script to find and download the files. As a factual matter, that may have been "authorization," rendering it lawful everywhere. Even if the script was "exceeding authorization," if the First Circuit had adopted the same rule as the Fourth Circuit and the Ninth Circuit, then Swartz would likely have been not guilty as a matter of law. All of which further shows why this prosecution should not have been brought in the first place; the prosecutor is supposed to exercise their judgment to do justice.

Separately, it has been pointed out numerous times that the only real party who had any reasonable claim to "harm" was JSTOR, and it had said from early on that it had settled its issue with Swartz when he agreed to turn over his hard drive with everything he'd downloaded. Now, a bit more has come out, as apparently JSTOR itself asked federal prosecutors to drop the case:

Elliot Peters, Swartz's California-based defense attorney and a former federal prosecutor in Manhattan, told The Associated Press on Sunday that the case "was horribly overblown" because Swartz had "the right" to download from JSTOR, a subscription service used by MIT that offers digitized copies of articles from more than 1,000 academic journals.

Peters said even the company took the stand that the computer crimes section of the U.S. Attorney's Office in Boston had overreached in seeking prison time for Swartz and insisting , two days before his suicide , that he plead guilty to all 13 felony counts. Peters said JSTOR's attorney, Mary Jo White , the former top federal prosecutor in Manhattan , had called Stephen Heymann, the lead Boston prosecutor in the case.

"She asked that they not pursue the case," Peters said.

So even the supposedly "harmed" party didn't want the case to go forward. And yet, Stephen Heymann kept pushing.

The case is now gone, so we'll never see how a judge rules on it. We can hope that, given everything above, a judge would have clearly seen what a joke the case was, and dismissed it. But, you never know how judges will rule, and especially when they're not very technically savvy, they'll give a ridiculous amount of deference to federal prosecutors, merely because of their position. But the ridiculousness of the case should be pointed out over and over again to remind everyone of the problems we get when the federal government gets too powerful, and knows that it can use that power against someone it doesn't like.

Whether or not the impending trial contributed to Swartz's death, one thing is undeniable: the case itself was a complete farce, and that should not be forgotten. One hopes that, among other things, one of the legacies of Swartz's death may be to fix broken laws that allowed this prosecution to move forward, and to figure out a way to dial back the aggressiveness with which federal prosecutors take on cases these days.

We've talked about the absolute ridiculousness of having a secret interpretation of a US law on surveillance such that the law actually means something different than what most people (including the politicians voting on it) think it means -- and yet the secret law remains in place for entirely secret reasons. The EFF, as part of an ongoing dispute over all of this, had submitted a Freedom of Information Act (FOIA) request concerning some testimony on that secret interpretation, and it got back a "relevant" document... which as almost entirely redacted. Here's a sample page. Much of it is blocked as "non-responsive" but the "responsive" section is basically entirely blacked out. The only text of the entire document that's available (other than the cover page) is:

The Government has provided copies of the opinions and the filings by the Government to this Committee, and the Government will continue to inform the Committee about developments in this manner.

It's ridiculous to continue arguing -- as Senator Dianne Feinstein has done repeatedly -- that there is no secret law here. She's being deliberately misleading, confusing "the law" with "the legislation." The legislation is the text as written by the legislature, but "the law" includes specific rulings by courts on the legislation. The legislation may be public, but the law is not when the rather important interpretations of the legislation remain completely redacted.

I've already written some basic thoughts on the death of Aaron Swartz, and I know that more will be forthcoming, but within the justifiable anger out in the world over this turn of events, there are some reports suggesting that DDoS attacks took down MIT's website and possibly other sites (though, reports of the Justice Department's website being taken down were wrong). This happened soon after MIT put out a statement about Swartz, following the statement from Swartz's family that pointed a finger directly at MIT.

The family had said:

“Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death.”

In response, MIT's statement, by president L. Rafael Reif, was actually somewhat self-reflective, admitting that the university needed to look closely at its own role in the situation, and appointing professor Hal Abelson -- someone quite knowledgeable and active in many of the same causes as Aaron -- to lead the investigation.

To the members of the MIT community:

Yesterday we received the shocking and terrible news that on Friday in New York, Aaron Swartz, a gifted young man well known and admired by many in the MIT community, took his own life. With this tragedy, his family and his friends suffered an inexpressible loss, and we offer our most profound condolences. Even for those of us who did not know Aaron, the trail of his brief life shines with his brilliant creativity and idealism.

Although Aaron had no formal affiliation with MIT, I am writing to you now because he was beloved by many members of our community and because MIT played a role in the legal struggles that began for him in 2011.

I want to express very clearly that I and all of us at MIT are extremely saddened by the death of this promising young man who touched the lives of so many. It pains me to think that MIT played any role in a series of events that have ended in tragedy.

I will not attempt to summarize here the complex events of the past two years. Now is a time for everyone involved to reflect on their actions, and that includes all of us at MIT. I have asked Professor Hal Abelson to lead a thorough analysis of MIT's involvement from the time that we first perceived unusual activity on our network in fall 2010 up to the present. I have asked that this analysis describe the options MIT had and the decisions MIT made, in order to understand and to learn from the actions MIT took. I will share the report with the MIT community when I receive it.

I hope we will all reach out to those members of our community we know who may have been affected by Aaron's death. As always, MIT Medical is available to provide expert counseling, but there is no substitute for personal understanding and support. With sorrow and deep sympathy,

L. Rafael Reif

I am sure that many will continue to criticize MIT for its actions in this mess -- and some criticism may be well deserved. That said, MIT's response here is a step forward -- and hopefully it creates real change in how MIT handles such things in the future. I think that there are many, many, many reasons to be furious about the Justice Department's actions in the Swartz case (and I felt that long before Swartz's death). However, a DDoS attack on MIT or the DOJ or anyone else is exactly the wrong message to send concerning Aaron. Yes, I was just defending the use of DDoS as a form of expression and protest, but this is not the kind of protest that serves Aaron's memory well.

Aaron -- more than almost anyone else -- did stuff. He built stuff and he created change. Not by taking things down, but by building them up. Not by attacking, but by sharing and informing and educating.

Aaron's memory needs to be preserved, and his death will hopefully be a catalyst for many changes -- to the way the government prosecutes people, to the way computer hacking laws are used today, to the way copyright laws are used and much, much more. But the way to do that is to do something proactive and positive. The organization Aaron founded is called Demand Progress, and that's what we should be doing now.

We should be looking for ways to continue Aaron's work, to build, to share, to create and to create change through sheer will of knowing what's right.

So, don't participate in attacks or takedowns. Look for ways to build something up. Create efforts to change problematic laws like the CFAA or copyright law. Look for ways to share knowledge and expand our ability to learn and to educate each other. Create ways for people to speak out and to enable everyone to do more.

That is the legacy that I believe Aaron would have wanted. It will always be impossible to fill the void that Aaron's death has left in its wake -- but if it inspires each of us to do a little more, to create some positive change, to truly demand progress in the face of ridiculous odds, then that will be the testament to all that Aaron did for the world.

This past weekend has, tragically, been way too much about death for me. On Friday evening I found out that a close relative had just passed away, and had just spent some time talking to other family members, crying, figuring out how I was going to fly across the country for a funeral, etc. I'd finally had enough and was about to shut down and go to sleep, when an email popped up from a friend telling me that Aaron Swartz had killed himself. And, suddenly, there was more death to think about in a very different way. The past few days I've been thinking a lot about both my relative and Aaron -- two very different people who probably only share the end date of their lives. I'm mourning them both, but since Aaron was a public figure and relevant to what we write about here, I wanted to write something about him, even as the mourning sector of my brain tries to figure out how you grieve for multiple people at the same time.

I did not know Aaron all that well, but I did know him. I've been reading many of the stories from those who did know him quite well, and it's amazingly touching. But I wanted to share my short story, because it's what keeps running through my mind. In my head, there are a few key moments that I keep thinking about concerning Aaron. One is the first time I met him. I can't place the exact time, but I think it was a decade ago at a conference in Santa Clara (I remember the hotel well). He was sitting at a table, and wow, did he look young. Very much like the kid in this photo by Richard Gibson, that Aaron posted to his own website, showing himself talking to Larry Lessig back in 2002 -- at the age of 15. I knew back then that he'd been one of the creators of one version of RSS (and that he and Dave Winer didn't get along because of some disputes over that). And I'd remembered hearing that he was young. But seeing that little kid sitting there was still really surprising. I talked to him very briefly at that event, and was immediately struck by how sharp he was. I also remember him helping to "launch" Creative Commons -- and I thought that, at nearly twice his age, I'd done so little.

I started reading his blog soon after that, which was an interesting mix of content from technical to political to philosophical to personal. When he started college, at Stanford, something about his blog posts were both captivating and horrifying at the same time -- describing in vivid details the kinds of thoughts many of us have when we go to college for the first time and are trying to figure out how and where we fit into the world. What struck me as so odd was that because of everything else he had done, my mind just defaulted to assuming that he was completely mature in all aspects of his life. But he was still just a kid.

The blog post I most remember came maybe a month or so after he had gotten to Stanford, and it involved him telling the story -- again, in both captivating and horrifying detail -- about him hooking up with a girl. My memory is fuzzy at this point -- and a very cursory spin through his blog doesn't turn up the post -- but I remember her joking about him being famous, which lead to the usual sort of awkwardness that comes with early makeout sessions, but all described in detail. I also vaguely remember some sort of followup, indicating that the girl was mortified about the public reporting on their rendezvous.

It was Aaron, sorting out his life in public. That may be more common these days, but it was certainly relatively new back then, and it was so disjointed from the "profesional" Aaron, who had already accomplished so much. I kept thinking... "that's right, he's just a kid."

But the kid grew up. He left Stanford, he joined the first YCombinator class, he did a startup that didn't go far, but which eventually led him to joining the early Reddit team. Here and there, he kept popping up, always doing something interesting. The next time I came across him was in 2009, when the FBI investigated him for daring to download a ton of public domain court documents from PACER. While PACER tries to charge $0.10/page (at the time it was $0.08) the documents are still public domain. Many people find this annoying -- and Aaron was a true crusader for the right to information. So when he found out that some libraries were experimenting with free PACER access as a trial, he went to one, set up a perl script and had it cycle through tons of documents, downloading them for him to collect. Eventually, the FBI realized it had no case: freely offered access to public domain material is legal to use.

Obviously, that foreshadowed his more recent legal troubles.

Over the last couple years, Aaron and I emailed occasionally. He and I were two of the only people (along with Senator Wyden) who seemed really concerned about the predecessor to SOPA/PIPA called COICA, and he had talked to me about helping get more people aware of the problems of the bill. And then, when SOPA/PIPA came along, we were in touch over the efforts against that (along with many others as well). But I also remember the last two times I heard from Aaron. Last summer, out of the blue, he emailed me to say that he'd run across a minor (but annoying) technical error on Techdirt, and suggested how to fix it. And then, in October, when he finally got his FOIA request returned concerning ICE's domain seizures, he emailed to let me know. I never communicated with him directly about his own ongoing case, but I remember being both surprised and impressed (and then less surprised once I thought about it) that he'd continued to push forward on his activist causes, even while facing trial for one of them.

The only time I ever met Aaron in person was that one time, a decade ago. I probably emailed with him less than 100 times -- with most of those coming over the past couple of years. I always knew he was complex -- wise way beyond his years in some things, and still figuring out other things at the same time. But the news of his suicide definitely took me by surprise, though others have pointed out that he's hinted at such things in the past.

I will also say that I know there's been a rush to "blame" the lawsuit against him on this. In fact, our September post detailing the new charges against him got a tremendous amount of traffic over the weekend. Aaron's own family has stated:

“Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death.”

Just as I was hesitant to blame Lori Drew or Dharun Ravi for actions that were connected to later suicides of people they had taunted, it still feels wrong to say that the case itself led to his suicide, without more details. That said, as Tim Lee noted, knowing Aaron, he would be the first in line to suggest the value of using the circumstances of his own death to get reform of the massively broken Computer Fraud and Abuse Act (CFAA), which he was charged under.

Again, as detailed in our earlier post, as well as an earlier analysis, the case against him was a joke: it involved massive charges for downloading information that was made freely available to the campus network he was on. At best, we could have seen a trespassing citation -- but instead he was facing decades in jail and seven figure fines. For accessing information. It really showed a case where the feds seemed to be going after Aaron because they didn't like him -- and, as we've seen, when the feds don't like you, they can make your life hell. JSTOR -- the supposedly "harmed" party -- wanted nothing to do with the case. The feds just seemed to want to make an example out of Aaron... for the "crime" of wanting access to knowledge. It would be great to see an Aaron Swartz Act to reform the worst parts of the CFAA. It might not be his biggest legacy, but it would be a good one to add to a long list.

Larry Lessig -- who knows more about both Aaron and the case against him than most people -- has a tremendously powerful post calling out the federal government (and MIT) for their actions in the case against Aaron, suggesting that the feds offered up a plea deal, but Aaron would not take anything that would have him described as a felon. More is going to come out on what happened, I'm sure, and the government is not going to look good.

If you want to read more thoughts on Aaron from people who knew him much better than I, I suggest you read the posts by Cory Doctorow and Danny O'Brien. Also, Mathew Ingram has been curating a list of some of the more interesting remembrances -- and a tumblr for Remember Aaron Swartz is filling up with wonderful remembrances.

There are so many sad things about this story, but the biggest is the most obvious: knowing just how much Aaron had accomplished already in his short life, combined with his drive and determination, we'll now never know how much more he would have accomplished down the road -- and every single one of us will lead less fulfilling lives because of that loss. He was still just a kid... a kid who had already accomplished amazing things.