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.
I find your commentary on this case to be sort of astringent and challenging, but in a largely helpful way.
Regarding both what you've written and what Kerr has written, I think it's worth pointing out that "sympathy" isn't a prerequisite for discussing the legal issues involved in the Swartz case. It's annoying that everyone who writes about the CFAA needs to provide a benediction. The Swartz tragedy does not want for sympathy, emotion, or action-spurring anger. But we can always use more (respectful) critical thinking.
It's especially annoying in critiques of Kerr's writing. Kerr's goals were to answer some basic questions. Did the prosecution stretch the CFAA to make a case against Swartz where none was warranted? Was the prosecution's conduct towards Swartz unusually cruel? Is there any legitimate public policy purpose animating the CFAA and wire fraud statutes? In discussing these questions, Kerr more or less stipulates that Swartz did what prosecutors alleged he did. But that's all it is: a stipulation. "Assuming", Kerr asks, "that Swartz did all this stuff --- and it looks like he did --- let us take a clear-eyed look at whether and how any miscarriage of justice occurred."
To berate Kerr for not adequately addressing the question of Swartz's innocence is to miss the point of the two articles.
I think the most substantive part is where he quotes Alex Stamos, the expert witness who planned to testify in Swartz's defense. Stamos provides a strong rebuttal to claims that Kerr seems to take for granted, about the validity of the legal charges against Swartz.
I would very much like to see a detailed response by Kerr to Stamos' argument.
I think this would have been a very interesting trial.
If Stamos's blog post was any indication I don't think it would have been much help to Swartz.
I say this only because his points were of the form "It was so easy to get around MIT's weak security that you can hardly call it hacking", but Swartz wasn't charged with "hacking", he was charged with wire fraud, computer fraud, unauthorized access, etc., and these are not charges that go away just because it was easy to do.
His testimony would certainly have been very helpful if it came to a sentencing phase but during the trial he would have been all but confirming that Aaron did indeed get around the feeble MIT and JSTOR blocks on him, and that's much of what the prosecution would have needed to prove right there.
I don't think httpd is 1000-100,000 times more important than the things Aaron helped to accomplish (he did more than just code, btw). An open source web server was somewhat inevitable but I'm not sure rss, creative commons, reddit, or some of the other things Aaron worked on were.
I don't think "exactly" is the correct word here. Maybe you're off the hook because you used the word "form". Reddit might be in the same form but a fraction of its size (or gone?). Of course, we can never know.
For example: "This article was first published in 2005. After it was published, Django launched a RemovingTheMagic project to address some of my criticisms (though personally I still find it unusable), web.py inspired FriendFeed’s tornado.web and Google’s gae.webapp and others (though I still prefer web.py), and this article led to a permanent surge in Reddit traffic that still hasn’t really stopped growing."
Lessig would probably disagree with you on CC.
I left off Demand Progress so maybe we'd have SOPA in place today.