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), 29 Apr 2008 @ 4:52pm

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

    Hi Tom,

    First off, you don't ever address the key concern I have with your paper: the conflation of tangible property and intangible property.

    And, while you're right that I didn't address every awful, misleading or incorrect point in your paper, it was certainly not because I cannot -- but because (as I clearly stated) it wasn't worth it to go for point for point against your assertions.

    But, if you really want to go down this rabbit hole, so be it.

    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.

    Ah, nice mislabeling. "tax-funding of expression with a regime of pervasive surveillance of what ordinary people hear, watch, and read" is a nice label, but wholly inaccurate concerning what Lessig has proposed.

    I should note that I disagree with any sort of compulsory licensing-type scheme, but compulsory licensing is hardly "tax-funding of expression with a regime of pervasive surveillance of what ordinary people hear, watch, and read."

    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.

    Again, I don't support compulsory licensing schemes, at all, but if that's all you get out of Lessig's writings, you read them wrong.

    The paper also points out that similar “governmentally administered” reward schemes were common in communist countries

    Again, the only people who think this is accurate are those who haven't read Lessig's work or those (like yourself) who want to mislead. Lessig brought up a number of different suggested solutions -- none of which he said were perfect, but as ideas to discuss ways to fix a broken system.

    None of them were the equivalent of the communist reward schemes in any meaningful way. The only way to paint them that way is to simply ignore reality.

    only by claiming that I err by “equating copyright to tangible property right.”

    We’ll debate that later; for now, it’s irrelevant.


    Considering it's the basis of your entire paper, it's actually very very very relevant. And you don't debate it later. You ignore it.

    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.

    This is blatant revisionism, designed to link up an entirely different concept, as proposed by Lessig with Castro. Castro's system was purely a centralized gov't-based system -- which is not (again) what Lessig was suggesting (again, as one of many different potential paths to explore). You paint what was done in Cuba as identical to Lessig's proposal, when they're extremely different. A voluntary licensing scheme is not gov't funded art creation.

    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.

    Indeed. Communist gov't funding of arts was a disaster. And I'd say the same thing about Lessig's proposal if that's what he's proposing. The problem is that he's not. And you know it.


    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.


    Except that it's not true. You twist Lessig's words to make it appear as if he's supporting something he clearly is not. It's a flat out smear campaign and you should be ashamed of yourself.

    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,

    Tom, frankly, the above statement is so sickening that I'm almost tempted not to respond to it at all, but someone needs to shine a light on your blatant falsehoods.

    Lessig's use of the word monstrous was not, as you suggest, in talking about the idea of using property rights to motivate expression. What he describes as monstrous is the way property rights have been ABUSED by certain interests in denying AIDS medication to those who can benefit most from it.

    And again, he does not propose to replace it with a system like that in Cuba, no matter how many times you repeat this.

    For you to take Lessig's words out of context like that is, frankly, disgusting. Are you proud of yourself?

    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.


    Taken totally out of context. People who actually care can read the details:

    http://www.socialtext.net/codev2/index.cgi?sovereignty

    What Lessig pointed out is that for many people in Vietnam, they don't end up dealing with day to day regulations, while most people in the US do. This isn't to praise the communist system (which he clearly states has many, many problems) but to point out how the US system is much more highly regulated than we believe.

    It's an argument in favor of fewer regulations. And you made it sound like exactly the opposite.

    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.

    Again, totally taken out of context (insanely out of context).

    http://www.socialtext.net/codev2/index.cgi?code_is_law

    Again, hopefully people will read the whole thing. The discussion of "bland communism" wasn't in reference to the Stalin era at all.

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

    Once again, totally taken out of context. What Lessig is pointing out is that regulations are all too often controlled by big business interests who are abusing the regulatory process in their favor.

    http://www.socialtext.net/codev2/index.cgi?regulating_code

    As someone who is supposedly in favor of free markets and against the abuse of the regulatory process, I would think you would agree... that is if you weren't trying to publish a total smear against someone.

    Btw, do you think the noted libertarian Bryan Caplan is equally problematic? He wrote an entire book on this subject.

    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.

    And again... totally taken out of context. Lessig's point here was simply juggling realism with libertarian idealism. He wasn't attacking libertarianism.


    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.


    The only one I can see who did any redefining was you. I've read both his passage and yours multiple times and I don't see how you get from his statement to yours unless you are purposely ignoring basic economic principles.

    In short, you bewail a “smear job” without showing that one occurred.

    No. I stated clearly that I would only challenge some points, and I did. And the other ones you brought up were equally simple to show how you took them out of context.

    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.

    Other than, say, the actual context.

    I understand that you do, however, really like Lessig’s explanation of why we should think of property rights like DDT.

    Clearly, you do not understand it. Because neither Lessig nor I compared property rights to DDT. Only you did, for lack of any real argument.

    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.

    And, once again, beautifully taken out of context. Based on your claim, then ANY monopoly right would be a good thing, since it's a property right -- and you, yourself, claim property rights are good. Yet, as a free market supporter, do you also think gov't granted monopolies are a good thing?

    Something breaks there.

    Do you think we should grant property rights on air? After all, then companies could be built to charge people to breathe.

    There's a reason we don't. Because it's unnecessary and it's a distortion of the free market.

    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.

    No. What's nonsensical is claiming that all property rights are good, and that all property rights are monopoly rights. It shows a woeful lack of understanding of the most basic fundamental economics.

    Tom, this was a hack job. Your response was no better. It was a sad attempt to smear someone who has raised some interesting ideas (many of which I don't agree with). I hope you're proud of yourself.

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