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
    mjr1007, 3 May 2008 @ 9:00am

    Re: Re: Re: Re: Re: Re: Good job Mike

    mjr1007 wrote:
    I find it very interesting which post you choses to reply to. Clearly you have no interest in defending you previous post in other articles where you cited nothing and only posted vague and useless claims. It's clear you can cite if needed be so it becomes even less defensible when you don't.

    Mike replied:
    Not so. It's best not to make assumptions like that. I have a rather limited amount of time, so I chose which posts to respond to based on that, trying to pick out key ones specifically. I also try to focus on responding to comments that further the discussion. Too often with your comments, I feel like we are talking in circles, since we define things differently.

    mjr1007 replied:
    It's not clear what's “not so”. Are you claiming that you really can't cite if mood strikes you?

    Now for talking in circles, the circle seems to be: you make rhetorical statements, I call you on it, you reply that your right I'm wrong and go read something. Typically it has to do with you representing economics as a well understood science where all are in agreement with you. Of course nothing could be further from the truth. It's not and they don't. I can see why you would feel like that doesn't further the discussion.


    mjr1007 wrote:
    Just to add insult to injury, Mike, did you ever publish in a peer reviewed journal any of your theories? Also have you ever taken a symbolic logic course. With regard to the last question, you obvious recognize rhetoric in other's writing, it's a shame you try to pass it off in some of your own.

    Mike replied:
    The answers were no and yes. I also taught logic, probability and statistics at the college level.

    mjr1007 replied:
    I find it curious that you've never to publish in a pier reviewed journal. Was it because you never submitted an article or is it because it was never accepted?

    What type of logic did you teach? Did it include quantifiers? It was clear to me after reading you excellent defense of Lessig, that you obviously can tell the difference between reason and rhetoric. Why not use that same skill on your own words?

    If you feel this is an unfair criticism then please give me an example from the volumes we have exchanged where I misspoke about your use of rhetoric.

    mjr1007 wrote:
    Sorry for the unclear comment. It just seemed that at the time everyone knew that running a business without making a profit seem like piss poor accounting. It didn't really matter what their business model was and there were several different types.

    Mike replied:
    I think that was a different issue. At the time, companies were valued on top line only. So when that's the incentive, companies did anything to maximize the top line, even if it meant giving away $1 bills at $0.75. Yes, it was dumb, but it's quite different than what I'm talking about.

    That wasn't focused on maximizing profit. The economics I'm talking about *are* focused on that.

    mjr1007 wrote:
    As more musicians give a way music fewer will be in the business. Which is also supply and demand. It would be a shame for only a few big acts to be left. Which brings me back to the constitution and the whole promote thing.

    Mike replied:
    That's a big assumption that is not supported by what's happening in the market these days. I think (correct me if incorrect) the underpinning of your assumption is that artists giving away music make less money. But that does not appear to be the case. Those who properly structure a business model are finding they make more, because in giving away the music they increase the pie. Despite your claims that there would be fewer musicians, we're seeing more people than ever before making music and making money from music at the same time as more are simply giving away their music and monetizing it in other ways.

    So the basic assumption does not hold up.

    mjr1007 replied:
    Since neither of us have cited number it seems like a bit of he said she said. If you are saying that there is more music out there then when the record companies had a strangle hold on music, then without the benefit of any hard numbers I would be inclined to agree with you. But of course these companies are rent seeking monopolist who always try to narrow the supply. That is setting a pretty low bar. My point is that there is less music out there then there could be with a reasonable copyrights and the elimination of rent seeking record companies. Just a note, not all record companies are rent seekers.

    mjr1007 wrote:
    The 11 cents was 1 cent for distribution and 10 cents for the acts. Which is what the current rate is AFAIK. It is also a reversal of the current systems with the companies getting 90% and the acts getting 10%.

    Mike replied:
    But that doesn't answer my question. Why not 3 cents? Who's to say that 11 cents it the market clearing equillibrium? Who's to say that's the most efficient market price? I'm saying that it is not, and the basic economics shows that price is $0.

    mjr1007 replied:
    Interesting that you edited out your own question. Actually it does answer your first question which was “why 11 cents”. The number was picked with absolutely no market data whatsoever. It's what is called a first level approximation or a back of the envelope calculation. It was meant to be illustrative. It maintained the acts revenue while decreasing the cost to consumers by 9X. 3 cents may very well be a better price then 11, both are far below the 99 cents per track that Itunes was charging last I looked. Again, I only buy CDs from act I've seen or know, so I haven't really kept up with the pricing.

    mjr1007 wrote:
    Other then live performances, what could be sold that isn't easily copied? T shirts and coffee mugs? With low cost OLED's one could easily see a programmable T shirt which could easily copy any other? Even earlier access could be copied as could the freemium approach. All you would have to do is have a single fan copy it, and then share it, because after all it is digital. Right now some of these things may be scarce but there seem to be little in the way of real hurdles to stop them from being copied as well.

    Mike replied:
    Lots of things can be sold that are not easily copied. The ability to write a new song (look at the Artist Share model that helpd Maria Schneider make a Grammy winning album that could be downloaded free), access to the musician (look at the Jill Sobule model), access to limited edition work such as signatures (look at the Trent Reznor business model), and even other ancillary products such as a travel agency to help fans follow you on concert (the String Cheese Incident business model).

    I'm not saying that any one of these is perfect for everyone, but use them to point out that there are many different business models that aren't so easily "copied" and each of those business models pays better if you have more fans downloading and listening to your music. You expand the pie with the music, and you sell them all those scarcities.

    mjr1007 replied:
    It's nice that you said that any one of them isn't perfect for everyone, that's definitely a start.
    Lets look at the details of your examples, first artistshare explained (from their website)

    “ArtistShare simplified: Since 2003, ArtistShare has been allowing fans to fund the projects of their favorite artists in exchange for access to the creative process, LTD Edition recordings, VIP access to recording sessions and even credit listing on the CD. Unlike other companies we build the model around the artist while providing the best fan support in the industry.” Preview a live ArtistShare fan-funded project here and see how the fans are making it happen. “

    So, let's go through this one at a time. Access to the creative process. There seemed to be some videos showing the process. Easily copied. If you actually go to a recording session, then it becomes a live performance. If they are actually saying that random fans would actually collaborate with the artist that sound like a difficult thing to do. Something that definitely would not scale. LTD editions, easily copied. If you click through on the link for the examples it seems like most of the things are easily copied. In addition there were some angel type investment with more things that could easily be copied, except for a Riesling, which could be counterfeited.

    The basic premise in this model is, fans will pay, including for just the music. It seems like there is a lot of overhead for getting people to just pay a royalty. Mike, you might try actually reading what's going on rather then just some superficial press clipping.

    Next, the Grammy winning album. You linked to your own article, which was fine. The link in the previous article was dead. You might want to run a script which checks for dead links.

    Next, Jill Sobule. Again the links to your pages were fine but the link to allthingsd.com, dead.
    From your article, prices from $25 to $10 000. The lowest level is a CD, which of course can be copied. The other levels include live performance and collaboration. A friend host some house concerts and has had mixed results. Not convinced this is a long term viable solution for many. Also, one could easily just say buying a track is helping to create the next track. This seem to distort the market just as every other mechanism does. It just does it in different ways. New doesn't necessarily me significantly different.

    Next, Trent Reznor of Nine Inch Nails (NIN). From your writing it seemed like it was all just LTD consisting of CDs, DVDs and downloads. All EASILY COPIED. What is going to stop people from buying one and sharing it with a few million of their closest friends?

    Finally String Cheese Incident. From your own writing

    “So, their route to financial success included lots of touring, but also setting up a travel agency specifically designed to help fans make trips to see them and other bands. They also heavily promote their music online. They sell downloads of their concerts, but don't put any copy protection on them, realizing that: "The more people are exposed to the music, the better it is for the band." “

    First off, lots of touring, nothing new here. Then a travel agency. Really Mike, musicians should become travel agents? Of course the cross over is obvious. And of course if this really did become more then just a niche there is no reason to believe that any of the big travel sites would come in and compete. Have you lost your fricking mind? Really Mike to expect this to be anything other then a niche is pretty tough, and even if it was scalable it's hard to see how distracting musicians from making music (by going into the travel business) promotes music, except as a side line. All you've done is give musicians a travel agent gig for their day job. What's next, having the acts take reservations while rehearsing? Mike do you, by any chance, play an instrument?

    Next, they were selling downloads of their concerts. See the point, selling music, that which you claim won't work is what you site in your own writing. Really Mike, sometimes I don't know whether to laugh or cry when discussing things with you.

    The problem with all of your writing is that at best it seems superficial, with absolutely no real understanding of what it takes to actually do anything. In one of your earlier post it was very telling when you said economics was the only way to measure progress. Spoke like a true economists. The only important thing is what you know, everything else is easy. As the saying goes “everything is easy for the man who doesn't have to do it.”

    mjr1007 wrote:
    Mike do you understand what the word infinite actually means? There aren't even infinite atom in the universe. It's a very large number put it's not infinite

    Mike replied:
    They are effectively infinite.

    mjr1007 replied:
    Interesting editing. You edited out Aleph-zero. Why would you do that? It was the next level of detail after infinity. It showed an actual understanding of what the word infinity actually means.

    Mike is there and ineffective infinite?

    From your answer, I can only assume the answer to my question is no you don't actually understand what infinity means or have any clue what the whole aleph notation represents.


    EDIT ALERT
    Some discussion about the difference between economics and accounting for marginal cost was deleted. I suspect there was also some difference between micro and macro economics but the point was made on both sides. It is actually one of the few examples of Mike and I actually talking past each other.

    mjr1007 wrote:
    Since the cost of storing the song on a computer actually cost more electricity for most machines then sitting idle there is a marginal cost there as well.

    Mike replied:
    That cost would be so infinitesimal to be considered zero by any reasonable person.

    mjr1007 replied:
    Just the beginning of the argument. There needs to be a whole infrastructure to support the file sharing and it needs to be an increase over the existing infrastructure. Even if you don't count the increase cost in sizing the infrastructure, there is still the actual work being done to share the files, electricity, HVAC .... Ignoring this seems like really bad accounting, but I'll take your word that economist are just really bad at accounting, Just as abundant is not infinite, small is not zero. World wide I suspect that the amount of power is actually measurable and not insignificant.

    mjr1007 wrote:
    Mike here is an idea, why don't you actually look up the what infinite is and quote how something that is abundant but bounded is infinite. You will excuse me if I trust my math professors at University more then you.

    Mike replied:
    Fair enough. And I will trust my economics professors more than you.

    mjr1007 replied:
    Once again rhetoric over reason. I'm not asking you to believe me or changing the meaning of infinite. As I said earlier it's a well defined term, just LOOK IT UP. Why don't you take me up on my challenge, cite something credible that states abundant but bounded is really infinite. Oh, right, I forgot, Mike doesn't bother to cite with me.

    There are even levels of infinity. Aleph-zero is countable infinity, aleph-one is real numbers (the power set of aleph-zero) and so on. It's a small point but troubling that you refuse to recognize even the smallest error.

    Mike wrote:
    So we are at a stalemate. It's fine with me, because history will bear out which answer is correct.

    mjr1007 replied:
    I'm not even sure that's true, because history is written by the winners, as opposed to those who are right. I wonder what history books in Europe looked like for some time after Galileo was put on trial. If you look at the history of WWII it's very different in Japan and China.


    mjr1007 wrote:
    What happened to the guy who actually reasoned and cited. I want that guy. He's much more interesting then the jerk I'm dealing with.

    Mike replied:
    Trust me. Same guy.

    mjr1007 replied:
    What are you saying here, your schizophrenic?

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