"I've never thought that copyright inhibits innovation."

The act was harmless—not in the sense of hypothetical damages or the circular logic of deterrence theory (that’s lawyerly logic), but in John Stuart Mill’s sense, meaning that there was no actual physical harm, nor actual economic harm. The leak was found and plugged; JSTOR suffered no actual economic loss. It did not press charges. Like a pie in the face, Swartz’s act was annoying to its victim, but of no lasting consequence.

In our age, armed with laws passed in the nineteen-eighties and meant for serious criminals, the federal prosecutor Carmen Ortiz approved a felony indictment that originally demanded up to thirty-five years in prison. Worse still, her legal authority to take down Swartz was shaky. Just last year, the Ninth Circuit Court of Appeals threw out a similar prosecution. Chief Judge Alex Kozinski, a prominent conservative, refused to read the law in a way that would make a criminal of “everyone who uses a computer in violation of computer use restrictions—which may well include everyone who uses a computer.” Ortiz and her lawyers relied on that reading to target one of our best and brightest.

Yes, most of the time prosecutors do chase actual wrongdoers, but today our criminal laws are so expansive that most people of any vigor and spirit can be found to violate them in some way. Basically, under American law, anyone interesting is a felon. The prosecutors, not the law, decide who deserves punishment.

In an age when our frontiers are digital, the criminal system threatens something intangible but incredibly valuable. It threatens youthful vigor, difference in outlook, the freedom to break some rules and not be condemned or ruined for the rest of your life. Swartz was a passionate eccentric who could have been one of the great innovators and creators of our future. Now we will never know.