A rule (called prosecutorial immunity) without which it would be almost impossible for the criminal law to function. Would you prosecute Bernie Madoff knowing he could tie you up in court, personally, with millions of dollars' worth of lawyers?
Even without that rule, a tort law claim against Ortiz or Heymann would probably not succeed, absent some proof that their intent was to torment him emotionally. Lessig and bizarre bloggers like Danah Boyd seem to occasionally accuse them of that, but it all seems rather groundless.
You should look more closely at the history. RSS (at least, the branch of it that people use), CC, and Reddit would have exactly the same form they have today - exactly! - without Aaron's involvement.
I don't know anything about the Smith case, and I am not saying you (and Cullen) are wrong to draw the comparison and ask questions about it.
However, it is very difficult to make this kind of backseat-driver judgment. I'm not arguing that people shouldn't look into it. They should. But different cases are often treated very differently. Perhaps Smith's case would have been harder to prove to a jury. Perhaps he had better procedural objections. It doesn't just come down to how bad anyone thinks the crime is.
I saw that too and read the Standard Law Review article. He is not credited it in. He may have helped a law student write a Python script, which she then used. The article does mention that a Python script was used to collect some data.
What exactly is Boyle's argument? He rehashes the now-typical hagiography. Then he seems to argue that should influence legal policy. This is wrong for two reasons. One, the hagiography is factually wrong, no matter how generously anyone uses the word "genius." Two, conclusions about prosecutorial discretion do not follow from it.
We need to distinguish between decisions made before and after Aaron's death. It is totally fair to say that Kerr's blogposts - or my attempts to remind programmers what they thought about Aaron when he was alive - lack "sympathy." But what exactly does Boyle think should have made the prosecutors sympathetic to Aaron when they brought their charges against him? His lawyers' claim that he might be psychologically unstable? His desire for attention from the geek community? His on-and-off friendship with Lessig or Doctorow? His history of writing code as a volunteer? His involvement in a sale of a company to Conde-Nast?
To use my example from another thread, let's say Brian Behlendorf gets arrested for DUI while on the way to a conference to talk about free software. Should we be sympathetic because he gave us the Apache httpd server (something a thousand times - maybe a hundred thousand times - more significant than any code Aaron ever wrote)?
By the by, I do feel like a jerk for not being more "sympathetic" to Aaron now that he is dead. But when the people around you turn your case into a political football and say the government killed you, it is fair game to try to put things into perspective.
"Crime" often relies on "pre-crime." The legal definition of "burglary" is breaking into a building with an intent to steal or commit another serious crime. Prosecutors have to decide whether they think they can prove "burglary" or can only prove "trespass." The jury decides whether the prosecutor has done so beyond a reasonable doubt.
Aaron never published anything in the Stanford Law Review. The student article in the Stanford Law Review that seems to form the basis of your claim doesn't even credit Aaron.
There are many things to criticize about the universe, but the standard form language on US Attorneys' press releases is probably not the biggest thing we should be worried about. Linus, as he often does, is speaking too confidently and too hastily.
And the press releases always state the statutory maximum, which as I and many others have explained, Aaron was never actually threatened with. His lawyers knew that. He had to know it. Lessig either knew it or should have known. The only reason we're talking about "35 years" is because of Lessig's irresponsible PR.
I'm trying to think of a hacking analogy. Imagine if you write a routine for loop with an int increment and someone, trying to understand the code, asks "wait, how many times can this run?" And you respond with INT_MAX. In most situations, that would be a misleading, borderline autistic response, with no relationship to the real world in the normal case.
I just read this linked article and think it is excellent and very thoughtful. It is much more human than any of Lessig or Doctorow's self-serving comments, and it fits with my recollection of the history.
I mean, people are right that all of this is separate from calls for plea-bargaining reform. I'm all for that. I'm not sure this kind of offense is the worst example of the lot, but I'm all for it. (Decades for drug possession is worse. Life imprisonment, [in facilities that are not at all, shall we say, minimum-security] for child-porn traded on IRC is probably worse, at least when it doesn't make child abuse more likely.) But it should all be reformed. That's a big task, of course, but that doesn't mean people shouldn't try.
I don't even mind if people use this case to help with that. But it's easy to grow weary of all the manipulation and distortion and hypocrisy by the people that your link discusses.
"This makes me wonder whether your senses have been dulled by taking too much of that standard practice for granted." Yes, that is totally fair. I have been thinking hard recently about the role of gradual change vs. radical change.
I agree about "taste" too. I'd never have said anything, but there comes a point in the popularization of a case where truth starts to be important.
Bingo. I've been trying not to say petty things out of respect for recently departed people and his family, with whom I sympathize for this terrible, terrible thing.
But the radical loss of perspective here is just jarring, and the case is big enough now that it's hard to refrain from trying to put things into perspective. I am aware of the full history, having been a programmer with significant open-source and other contributions through the 90s and early 2000s. Aaron is being totally misremembered.
Of those who knew of him before his death - and he was not a "celebrity" or "famous" or considered "brilliant" or a "genius" by technologists - most knew him as a blogger. He was actually a very good writer, even from a young age. He wrote with clarity and purpose, and he had many interests. His technical output was not major. To pull a random name out of a hat, his contributions were less than someone like Craig McClanahan and far less than someone like Brian Behlendorf. Basically, Aaron got a chance with Y Combinator, which he parlayed into a merger with Reddit's parent company, mostly through personal connections. Aaron didn't get end up getting along with Alexis or Steve, who considered him immature, dramatic, and unreliable. Reddit was shortly rewritten entirely, and web.py was too buggy to make any further contribution to Reddit. Aaron was fired from Reddit's acquirer because he didn't bother doing anything after the payout. He then floated around, wrote a few minor libraries and some more interesting blog posts, and then became a very good activist worthy of deeper respect on that front. He wasn't actually a tech celebrity before his death. He didn't "invent RSS." He didn't singlehandedly "defeat SOPA." His work on RSS 1.0, a version of RSS that was never significant itself, was mostly of interest to the semantic-web people, who have themselves have never made much of an impact, although the work is interesting to some.
I didn't know Aaron personally, but I do think his volatile relationships with others and his desire to be famous within this community were a source of extreme anxiety for him, though probably more so in the past than recently. But his professional life was, perhaps understandably, extremely frustrating for reasons that had nothing to do with his criminal case.
That's not an attack. Most people don't make major technical contributions. But I wish people would see this case for what it is - a volatile activist who pulled a stunt that spiraled out of control.
But that's ridiculous. The only thing that made this case big news was his death.
It's worth reading over old HN threads on the criminal case. The consensus was pretty close to my position now, which is that prosecutorial discretion worked pretty well in determining the charges. That doesn't make the outcome any less sad; nor does raging at the wrong people.
Look, I guess you have no reason to believe me, but this is just not how the US government works. There's no staffer in the Administrative Office of the courts who's upset at Aaron and tells the United States Attorney for the District of Massachusetts to throw the book at him.
If the government couldn't prove beyond a reasonable doubt that he intended to distribute the public-domain part of the archive, he would have won the largest part of his case, or at least received a very minimal sentence (with no prison time).
"If it were only a '6 month low security setting' being discussed, why wouldn't Aaron have been told of this?"
He was told. If you can even imagine that he wasn't, you need better news sources. This kind of anti-reality nonsense sounds an awful lot like Tea Party conspiracy crap. To effectively critique the law, everyone needs to learn how it works.
No, no. Some of the articles were in the public domain, but not all of them. (The precise ratio could have been a relevant fact at sentencing for some of the charges, because it would speak to the monetary value of what his actions threatened to publicize in violation of copyright law.) Copyright violation is routinely both a civil and a criminal manner.
He would not have been in the clear if he scanned and publicized the articles himself.
Well, it's not true either way. But that too is very rare. There's just too much risk with it, and it's not how most nontechies think. Look what actually happened in this case: Ortiz's husband issued an ill-thought-out, insensitive statement in frustration on Twitter, and then eventually there was a calm, rational press release from the office.
Then they'll move on. They've got thousands of other cases, many of which have made other communities similarly angry. That we get 35,000 signatures for an online petition mostly speaks to the fact that we're online.
Even without that rule, a tort law claim against Ortiz or Heymann would probably not succeed, absent some proof that their intent was to torment him emotionally. Lessig and bizarre bloggers like Danah Boyd seem to occasionally accuse them of that, but it all seems rather groundless.