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. identicon
    Tom Sydnor, 29 Apr 2008 @ 3:14pm

    Gee, the "smear job" seems to hold up pretty well.

    Mr. Masniak, you seem upset. I’m sorry that you think that I “smeared” Lessig by pointing out that conjoining tax-funding of expression with a regime of pervasive surveillance of what ordinary people hear, watch, and read is an idea sufficiently dangerous and shopworn that it could be fairly labeled “quasi-socialist utopianism.” I continue to think the label fair.

    The central claim in my paper is that Lessig proposed to replace copyrights with a scheme in which the government determines the value of expression, taxes technologies, and conducts pervasive surveillance of what people read in order to divide up the speech-tax revenues. As I point out, this presents us with an amazing spectacle: “Baby-Boomer academics arguing that while the kids may have been alright, the music of the 1960s and early 1970s would have been so much better had it been guided by Lyndon Baines Johnson and Richard Nixon.”

    You don’t dispute any of this, Mr. Masniak. You can’t.

    The paper also points out that similar “governmentally administered” reward schemes were common in communist countries—and were disastrous from every conceivable point of view. You do dispute this—but only by claiming that I err by “equating copyright to tangible property right.”

    We’ll debate that later; for now, it’s irrelevant. As I note in the paper by quoting Fidel Castro and other sources, these collectivist regimes did, in fact, use similar reward schemes to replace copyrights. And such schemes were as, or more, disastrous than their collectivists schemes for producing tangible property. But don’t take my word on it, here’s Leszek Kolalowski: “[T] he longer the communists have been in power, the fewer such works their have been. Genuinely original work inspired by communist ideas, work of any real worth, virtually disappeared in the Soviet Union in the 1930s.” My Correct Views on Everything, p. 88.

    Apart from your here-irrelevant claim that copyrights differ from tangible property rights, you don’t dispute any of this. You can’t: It is true. Lessig did declare it "monstrous" to use property rights to encourage the production of private expression and innovatation and then propose to replace them with something much like what Castro did in Cuba. I do no one wrong by noting that in doing so, Lessig fails to confront some brute and highly relevant facts from recent history. He does.

    Nor do you dispute that that Lessig praised the “effective freedom” and ideals of communist Vietnam while denigrating those of the United States. He did.

    Nor do you dispute that Lessig used the term “bland communism” to characterize the show-trial, purge, and terror-famine filled reign of Joseph Stalin. He did.

    Nor do you dispute that Lessig analogizes most people to witless cows. He did.

    Nor do you dispute that Lessig devoted entire chapters of his 1999 book Code and his 2006 book Code v.2.0 to very personalized, (“What Declan Doesn’t Get”), attacks on the as-he-sees-it pernicious influence of “libertarians” who dare to think that control of all aspects of the Internet should not be vested in the government. He did.

    Nor do you dispute that Lessig, in the book and law-review article cited, re-defined the meaning of the word “free” until costly, state-controlled resources are “free.” He did.

    In short, you bewail a “smear job” without showing that one occurred. And for good reason: No missing "context" can rationalize, e.g., Lessig’s contortions of "free," his tax-and-surveillance scheme, or his defenses of Vietnamese and Soviet communism. (Stalin? bland!?!?)

    As for name calling, I did not accuse Lessig of that, I showed it. I quoted the very passages of his own articles that show that Lessig has effectively denounced himself as a terrifyingly self-righteous partisan who uses the rhetoric of racism to ”insist that the other side is the devil’s own work.” Those are Lessig’s words, not mine. I do no one wrong by exposing Lessig's own hypocrisy.

    I understand that you do, however, really like Lessig’s explanation of why we should think of property rights like DDT. Others have concluded that it backfires miserably. See Julia D. Mahoney, Lawrence Lessig’s Dystopian Vision, 90 Va. L. Rev. 2305, 2324-26 (2004). I barely thought it worthy of note.

    Finally, you get nowhere by insisting that a copyright “is a monopoly right, not a property right.” Those are two ways to say the same thing. Again, no need to take my word on it. Here is Milton Friedman: “[T]he grant of patents to inventors and copyrights to authors… are different because they can equally be understood as defining property rights. In a literal sense, if I have a property right to a particular piece of land, I can be said to have a monopoly with respect to that land defined and enforced by the government.” Capitalism and Freedom, p. 127.

    And do remember that to speak of “free markets” or “market competition” in the absence of legally and practically enforceable private property rights is nonsensical. Property rights are an indispensible predicate to that which economists call "market competition."

    At any rate, thanks for the comments. --Tom

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