The Smear Campaign Against Larry Lessig And Free Culture

from the getting-nasty dept

You may recall that I've had my run-ins in the past with the incredibly misnamed Progress & Freedom Foundation. While I tend to think that Adam Theirer does okay work for them, almost every other report that comes out of the "think tank" seems highly questionable. We haven't heard much from them lately on intellectual property rights -- perhaps since two of their most outspoken folks on that topic (Patrick Ross and James DeLong) moved on. However, it looks like they've found someone new to drum up ridiculous arguments on intellectual property issues. If you don't recall, PFF is the group that has claimed that fair use harms innovation, that net neutrality is theft, and that open spectrum harms innovation (obviously WiFi was a huge problem). The most amazing thing to me, though, is that the PFF positions itself as a "libertarian" "free markets" think tank that thinks there should be less government regulation. But... anything having to do with intellectual property or spectrum, and suddenly all those libertarian statements go out the window.

Given all of that history, it's still rather amazing to read its newly released report on how the "Free Culture" movement, as explained by Larry Lessig, is really a "quasi-socialist" movement. Reading the full paper, you get a sense of how Washington DC works. It's a pure smear job that takes Lessig quotes out of context for ultimate impact and fills the rest with ad hominem and totally unsupported attacks. I certainly don't agree with everything that Lessig has to say -- and I particularly disagree with some of his policy recommendations. But there's simply no way to read Lessig's work and come to the conclusions in this paper if you are being intellectually honest. You can disagree with his conclusions. You can disagree with his reasoning -- but to paint what he has to say as a celebration of communism or socialism is simply a smear tactic and a political hack attack.

What becomes clear as you read the attack is that the author, Tom Sydnor, simply read through Lessig's works in search of sentences that could be taken out of context in order to paint Lessig as a secret socialist/communist. It's hard to see how that's "scholarship." It's not worth refuting each and every statement here, but we'll give a few simple examples. First, Sydnor claims that Lessig "demonizes" property owners. Actually, Sydnor claims that Lessig "literally demonizes property owners." Unless Lessig is turning property owners into demons, then I'd have to say that Sydnor doesn't understand what "literally" means. But, more to the point, this is a rhetorical trick by Sydnor, which is the basis of nearly his entire paper, where he repeatedly assumes that intellectual property is no different than tangible property. This is a fabrication. There is no reason to ignore the very real differences between the two unless you're trying to unfairly and dishonestly paint someone as supporting something they have not.

While making fun of Lessig (Sydnor snidely accuses Lessig of "name calling" before referring to Lessig as a "hypocritical demagogue" -- kettle, pot, etc.), Sydnor points out that Lessig "analogizes property rights to the pesticide DDT." If you're playing along in the home game, Sydnor is pulling this from page 129 in Lessig's book Free Culture. Lessig's actual point, which is quite valid and interesting is that DDT was originally designed to serve a good purpose, but it was only later that it was realized that it had negative unintended consequences. This isn't "demonizing property rights" as Sydnor implies. It's merely pointing out that even those with the best of intentions (the makers of DDT or the creators of copyright law) may not realize the negative consequences of their actions, and how those negative consequences may outweigh the positive consequences.
"No one set out to destroy the environment. Paul Muller certainly did not aim to harm any birds. But the effort to solve one set of problems produced another set which, in the view of some, was far worse than the problems that were originally attacked. Or more accurately, the problems DDT caused were worse than the problems it solved, at least when considering the other, more environmentally friendly ways to solve the problems that DDT was meant to solve."
If someone can explain how that's somehow demonizing property rights, I've got a job for you as a paid shill in DC. Instead, it's making a valid point that isn't demonizing anything -- most certainly not property rights. You can go through the rest of Sydnor's piece, and each and every time you'll notice he does one of two things: he conflates copyright with tangible property or he takes statements out of context to prove his point. He's also not beyond ridiculous hyperbole. In pointing to a rather reasonable quote from Lessig about why we should be interested in seeing if other systems can provide better outcomes, Sydnor brushes off all other systems of copyright by claiming:
"But during the last century, humanity conducted many vast experimental investigations of the relative merits of these "different property systems and the freedoms each allowed." Those experiments were run by well-intended people who sincerely believed that replacing systems of private property with "different systems" would improve the material and spiritual well-being of humanity. During those experiments, millions were murdered and billions were impoverished and enslaved.
Hyperbole much, Tom? Sydnor, once again, is equating copyright to tangible property (missing the irony that copyright -- a government granted monopoly -- seems a lot more closely aligned with the centralized governments of the former socialist nations than a system that relies on the free market). He then cuts off any questions about looking for a more reasonable system than copyright (which is a monopoly right, not a property right) by suggesting that any other system leads to "millions murdered" and "billions impoverished and enslaved." It's quite a leap. If there was any left, this paper destroys any credibility on pretty much anything coming out of PFF these days. It's the worst kind of political smear tactic.

Filed Under: free culture, larry lessig, politics, smear campaign, think tanks, tom sydnor
Companies: progress and freedom foundation


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  1. icon
    Mike (profile), 2 May 2008 @ 11:08am

    Re: Re: Re: Good job Mike

    It was an analogy and like most analogies it does break down. Of course you missed the point completely anyway. It wasn't the abundant/scarcity issue, it was an accounting issue. They felt they didn't have to make a profit wherever they could. It was OK to just go for market share.

    Hmm. It's quite difficult to read your original statement and conclude that it was really about accounting. The business models I discuss don't change the accounting. As the other commenter noted, the problem with the original dot com business models were that they did not recognize what to sell and what to give away. So that hurt the bottom line.

    What I'm talking about is giving away stuff that doesn't cost anything to give away and tying it to stuff that can be sold. That helps the bottom line.

    As I tried to point out, all but the largest acts have a tough time making a living charging for their music. Most people, not all but most, would be willing to pay a reasonable price, about a tenth of what is charged today, for music, particularly if the amount an act gets for each track is capped. The disconnect is that vast amounts of money go to rent seeking execs and a few acts.

    There's a big assumption that "most people" would be willing to pay. It's assuming that most acts aren't successfully giving away their music and selling something else.

    In other words, sure, right now, most people may be willing to pay some fee. But the more musicians who give away their music for free, the fewer people will be willing to pay anything.

    Supply and demand...

    It would be interesting to see what would happen if file sharing actually charged. That is, anyone hosting a file would collect 11 cents for a download and keep 1 cent. With the act getting the rest. The market would expand greatly, would be my best guess

    Sure. But why 11 cents? Why not 3 cents? What if the market expands even more? And why not 0 cents? What if the market expands even more? All I'm saying is let the market decide -- and basic economics will tell you the price will go to $0, and that will create the largest possible pie.

    Small acts could make a living and we would get some great music. There is already compulsory licensing of songs so there really isn't any reason not to cover existing songs. It's always interesting to hear an old favorite with a new style or rhythm.

    Small acts would make less under your plan than mine. The gap between $0 and $0.01 is huge in terms of actually creating the transaction -- because you've now added in a mental transaction fee. Someone needs to think about "is this worth paying anything for" as opposed to the $0, where there's no friction. People sample more music, find more of what they like, share what they like with other friends. So any good musician builds up a larger group of fans faster -- and can then monetize them by selling the various scarcities surrounding it.

    Also, just as these really aren't infinite goods so too is the marginal cost not really zero.

    This is simply an incorrect statement. The marginal cost is zero. The goods are infinite.

    For the over 5 billion people without a PC or Internet connection the cost might as well be infinite.

    No. Those are the costs required for access. Not the cost of the good. Two separate things.

    For those who have already bought a computer with a hard drive, the marginal cost is still not zero

    Yes it is.

    When purchasing the computer you would get a larger hard drive, more money, if you thought you were going to file share. If your hard drive fills up then you need to get another one. The cost of the Internet connection, month to month, is not zero, and the extra cost of electricity needed to spin the hard drive and run the processor faster than idle is also not zero.

    Those are fixed costs, not marginal costs. They do not change based on each copied file.

    Calling them zero is just hyperbole, just like calling them infinite.

    It's not hyperbole. Both are accurate statements.

    The point here is that people are willing to spend small amounts, and many, maybe even most, would be willing to spend a little more, to ensure their favorite artist can continue to make music.

    No. That's actually not the point. If artists want to try your model that's perfectly fine. But it won't last. Because more artists will recognize they get more from giving away the music and selling scarcities.

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