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, 29 Apr 2008 @ 7:46pm

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

    mjr1007 wrote:
    I think almost unthinkable has happened here. You actually got me to agree with Mike on a point. Most of your's and Mike's debate seems to be trying to classify exactly where Lessig is, and quite frankly it's of little interest. I think the message is more interesting then the messenger. In that vain I thought the following paragraph was of interest.

    Tom Syndor wrote:
    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.

    mjr1007 responded:
    It's hard to imagine IP as real property. There is no natural exclusion of an idea as there is in property. Both of us can use the exact same idea, even with neither of us knowing about the other. This would be very difficult with real property. An idea is none the worse for wear. Your using an idea does not diminish it's productive life. It's not a machine which needs to be maintained from use, or even disuse.

    Since we seem to be quoting Nobel laureates how about this one from Joseph E. Stiglitz

    http://www.cceia.org/resources/transcripts/5397.html


    “Academics believe in the importance of spreading ideas. Thomas Jefferson talked about it much more poetically than I can. It's in the Jefferson Memorial. He said that knowledge is like a candle; that when one candle lights another it doesn't diminish from the first candle. So the way economists say this is that knowledge is a public good—zero marginal cost, to put it in very unpoetic terms.”

    Since you bio states you are a lawyer how about this from the Constitution, I'm sure you're recognize it
    Article I Section VIII Clause 8

    “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;”

    I've always found this to be an amazing clause. To start with it states

    “To promote the progress of science and useful arts”.

    For a naive reader, it would seem any law which can be shown to retard the progress of science and the useful arts would be unconstitutional.

    Also is says for a limited time, I suspect that if property rights were for a limited time, there would be a revolt. As Far As I Know (AFAIK) property rights are not contingent on any sort of progress.

    Nowhere does it say author, inventors or their assignees. Just author and inventors. From a naive reading of this it would seem like much of the law would be unconstitutional.

    These differences make IP law and property rights seem very very different.

    I don't have a law degree so of course all I can do is use my common sense and experience, 30 years in the computer field, working for several startups and also being on my own. This is very important stuff which needs to serve the people and the inventors and authors who's works the people depend on. It does not need to and should not serve the interest of lawyers or other rent seekers.

    I look forward to your response.

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