"Prosecutor as bully."

Lawrence Lessig on the suicide of Aaron Swartz (which we've already been talking about here). Lessig was Swartz's friend and — for a time — his lawyer:

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....

Swartz faced a million-dollar trial, and he was out of money, "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."

Fifty years in jail, charges our government. Somehow, we need to get beyond the “I’m right so I’m right to nuke you” ethics that dominates our time. That begins with one word: Shame.

AND: From the NYT obit:

In 2008, he took on Pacer — or Public Access to Court Electronic Records, the repository for federal judicial documents. The database charges 10 cents a page for documents; activists like Carl Malamud, the founder of public.resource.org, have long argued that such documents should be free since they are produced at public expense....

Mr. Swartz recalled, “I had this vision of the feds crashing down the door, taking everything away.”...

He was scared, apparently, but he also joked and flaunted about his misdeeds:

 “Attention attractive people: Are you looking for someone respectable enough that they’ve been personally vetted by The New York Times, but has enough of a bad-boy streak that the vetting was because they ‘liberated’ millions of dollars of government documents? If so, look no further than page A14 of today’s New York Times.”...

The government chose not to prosecute that time. But Swartz moved on to the JSTOR matter, and United States attorney Carmen M. Ortiz said: “Stealing is stealing, whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”

The obit links to Swartz's own blog post describing his depression (and other ills). That post is from 2007, before either the Pacer or the JSTOR incidents.

Lawrence Lessig on that Facebook movie that we all have to see.

It's been a long time since we've had a movie in that category, don't you think? (Remember when Pauline Kael single-handedly forced everyone to sit through "Last Tango in Paris" and believe this was the movie we'd talk about for as long as human civilization endured?)

Lessig says:

[Aaron] Sorkin crafted dialogue for an as-yet-not-evolved species of humans—ordinary people, here students, who talk perpetually with the wit and brilliance of George Bernard Shaw or Bertrand Russell. (I’m a Harvard professor. Trust me: The students don’t speak this language.) With that script, and with a massive hand from the film’s director, David Fincher, he helped steer an intelligent, beautiful, and compelling film through to completion. You will see this movie, and you should. As a film, visually and rhythmically, and as a story, dramatically, the work earns its place in the history of the field.

But as a story about Facebook, it is deeply, deeply flawed....

The total and absolute absurdity of the world where the engines of a federal lawsuit get cranked up to adjudicate the hurt feelings (because “our idea was stolen!”) of entitled Harvard undergraduates is completely missed by Sorkin. We can’t know enough from the film to know whether there was actually any substantial legal claim here. Sorkin has been upfront about the fact that there are fabrications aplenty lacing the story. But from the story as told, we certainly know enough to know that any legal system that would allow these kids to extort $65 million from the most successful business this century should be ashamed of itself. Did Zuckerberg breach his contract? Maybe, for which the damages are more like $650, not $65 million. Did he steal a trade secret. Absolutely not. Did he steal any other “property”? Absolutely not—the code for Facebook was his, and the “idea” of a social network is not a patent. It wasn’t justice that gave the twins $65 million; it was the fear of a random and inefficient system of law. That system is a tax on innovation and creativity. That tax is the real villain here, not the innovator it burdened.

But great movies about law really do shape what people think about law and that affects what law means. How many will read and understand Lessig's pushback?

ADDED: Here's the famous Pauline Kael review — the most famous movie review of all time that we will think about for as long as there are movie reviews:

This is a movie people will be arguing about, I think, for as long as there are movies. They’ll argue about how it is intended, as they argue again now about The Dance of Death. It is a movie you can’t get out of your system...

It's the hotly anticipated Glenn Greenwald vs. Lawrence Lessig showdown!

The 2 have been fighting harshly in writing — see the "links mentioned" here — and now we can see them battle it out in real time:



ADDED: You can skip the first 9 minutes unless you want to hear: 1. 2 men murmur about civility or 2. Lessig's paper-shuffling that sounds like buildings being demolished.

"This was a private file server, like a private room, hacked by a litigant with a vendetta."

Lessig thinks that accessing Judge Kozinski's on-line porn stash was an invasion of privacy "perfectly" analogous to entering his house through a badly locked window and looking through his belongings:

The site was not "on the web" in the sense of a site open and inviting anyone to come in. It had a robots.txt file to indicate its contents were not to be indexed. That someone got in is testimony to the fact that security -- everywhere -- is imperfect....

In the comments, after a challenge — "I'm sorry, but there's no way that typing a URL into a web browser is analogous to jiggling a lock for 30 seconds" — Lessig backs away from the idea that the analogy is perfect:

I don't accept that this is a "public place" just because the public can easily get to it. But I'm also not arguing that someone should be treated as a trespasser because he or she wanders through a directory structure. My only point is that it was plain beyond doubt that this was not intended as a public place where anyone was invited to come and browse. Norms of privacy should therefore apply.

Another commenter — James Nightshade — pushes back:

Robots.txt is a voluntary access control mechanism, but it does not prevent resources from being "on the Web" in any sense. The document describing the robots.txt standard refers specifically to web robots. Robots.txt was not intended to apply to interactive web browsers. It is roughly analogous to a sign one might find beside a residential street: "No trucks except for deliveries." The street is still a part of the road network, even if some vehicles are asked not to visit.

Another example is the form I'm typing this into. It has an accompanying CAPTCHA form to identify robotic spam submissions. Blocking these robots doesn't effectively take the submission form off the Web. If one wants to avoid public access to a Web resource, there are access control mechanisms which can do that. Passwords are one example; robots.txt is not an example.

I'm not buying the analogy, but I get it that Lessig is trying to promote privacy on the web. Or not on the web. Whatever. I have a lot of trouble seeing what the "disgruntled litigant" did as "hacking" or trespassing.

Seems to me, when you're on line, you can poke around as much as you want and look at anything you can click to. Isn't that what most of us think? That's how we behave on line. In the physical world, we know we can't just go anywhere we can physically get to. Forget badly locked window. We won't even pull open an unlocked screen door to a house. I was going to say a "private building," which assumed the answer to the question about privacy, but that ordinary usage — public/building — shows that we have a deeply embedded expectation about privacy.

But Lessig's idea about privacy on the web is something I'd never even heard of. Lessig, of course, knows that. He prefaces his analogy with: "Cyberspace is weird and obscure to many people. So let's translate all this a bit." Are we just at the beginning of forming our expectations of privacy on line, or have we already decided we are free to look wherever we can go?

IN THE COMMENTS: MCG notes: "Alex Kozinski provided public links into his "stuff/" directory in the past." He points to this email Kozinski sent for publication on a high-profile blog. Kozinski thus eagerly invited the whole world into his back pages.