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The Boston Globe

Metro

Kevin Cullen

When judgment comes with wisdom

Before there was Aaron Swartz, there was David LaMacchia.

Swartz’s suicide while awaiting trial for using MIT’s system to improperly download academic articles has prompted a widespread debate about whether prosecutors were overzealous in filing charges that carried up to 35 years in prison. Prosecutors were trying to force Swartz to plead guilty and admit he was a felon in exchange for six months in prison. They vowed to seek a 7-year term if Swartz went to trial and lost.

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Nineteen years ago, Steve Heymann, the same prosecutor who drove the hard bargain with Swartz, supervised the prosecution of LaMacchia, an MIT student who was charged with using the university’s system to copy $1 million worth of software that he posted on his virtual bulletin board for others to use. The way the two cases turned out offers an object lesson in crime, punishment, and judgment. And it raises questions not just for prosecutors, but for administrators at MIT, who have asked one of LaMacchia’s old professors, Hal Abelson, to report on the university’s role in Swartz’s prosecution.

LaMacchia was a 20-year-old sophomore when he found himself in the government’s crosshairs. He was looking at five years in prison and recalls prosecutors “definitely used strong-arm tactics.”

But before the case went to trial, US District Judge Richard Stearns dismissed the charges, ruling that LaMacchia’s actions were stupid but not criminal. LaMacchia wasn’t trying to profit, the judge said. He gave LaMacchia a tongue lashing and sent him back to his dorm in Cambridge.

“One might at best describe his actions as heedessly irresponsible,” Stearns said, “and at worst as nihilistic, self-indulgent, and lacking in any fundamental sense of values.”

Stearns’ judgment was Solomonesque. LaMacchia’s life wasn’t ruined. He went on to have a productive career, spending much of it developing computer security systems. But he would have been expelled and his job prospects severely curtailed if he had been convicted of a felony.

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In response to the case, Congress passed a law that made it clear that hackers
and downloaders without a financial ­motive can be held criminally liable. The ­LaMacchia loophole was closed, and when the 26-year-old Swartz, then a Harvard fellow, insisted he downloaded the academic archive not to make a buck but to make a point, prosecutors didn’t care. Swartz, a computer programming prodigy, believed that articles based on academic research paid for by taxpayers should be free to the public, but the government didn’t agree. They wanted to make him an example and a felon.

One of LaMacchia’s lawyers, Harvey ­Silverglate, says the aggressive prosecution of Swartz shows neither federal prosecutors nor MIT learned the LaMacchia lesson.

“The judge realized this was a bright young kid who was flexing the muscles in his brain,” he said. “He gave the kid a reaming out, and the kid walked out of court with his tail between his legs, but because he didn’t have a criminal record, he went on to have a great career. There’s a little wisdom there, but Heymann never got the message.”

Silverglate and LaMacchia’s brother, ­Brian, an MIT grad who helped with his ­defense, feel the same way about MIT’s admin­istration, which they blame for cooperating with overreaching federal authorities and against the university’s ethos of ­encouraging students to push technological boundaries. The lawyers, they lament, have pushed aside the thinkers. “That MIT ­appears to have learned nothing in the 19 years between Dave’s and Aaron’s cases is truly disappointing,” said Brian LaMacchia.

A spokeswoman for the US attorney’s ­office said the two cases were “very different legally and factually.” A spokesman said MIT won’t comment before Abelson’s report.

After Aaron Swartz was indicted, David LaMacchia sent him a supportive e-mail. “I said, if you ever want to talk, feel free to contact me,” he said. “I never heard back.”

Kevin Cullen is a Globe columnist. He can be reached at cullen@globe.com.

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