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, 30 Apr 2008 @ 4:59am

    Of Duranty, Fonda, and Lessig

    Mike, thanks for the clarification. I understand your “economics of abundance” argument; I realize that you believe deeply in it; and when we reach an issue as to which it would be relevant, I will be happy to explain why I reject it. (Hint: Economists recognize two types of scarcity, ex post and ex ante scarcity. As to any type of economic system that must endure over time, the latter is the more important.)

    But for now, suffice it to say that the “economics of abundance” cannot explain the differences between Lessig and I: We both reject it. Both Lessig and I agree that copyrights are a type of property, and we both agree that expressive works are “scarce” in a way that makes it essential to compensate those who create them. Where the “economics of abundance” are concerned, both Lessig and I are in the same dissenting camp.

    Nevertheless, I disagree very strongly with Lessig, Castro, Lenin, Stalin, and Lessig’s “Chairman Ho,” about how creators of expressive works ought to be compensated. That disagreement is the focus of my paper. So back to your comments.

    First, neither my paper nor I argue that “anyone” in favor of changing copyrights is anti-property. Indeed, that definition makes me “anti-property”: Both Lessig and I agree that some changes would be beneficial. For example, both Lessig and I agree with Lessig support some sort of “orphan works” legislation. But Lessig is not really about “improving” copyrights as a system of property rights and markets. As shown in my paper, he would rather be done with them and substitute a “government administered” reward system remarkably similar to those that have repeatedly produced disaster.

    Second, I am glad to see that you refuse to defend Lessig’s Walter-Duranty-like attempt to characterize Soviet communism as “bland.” Sadly, I note that you were willing to defend Lessig’s Jane-Fonda-like cheerleading for Vietnamese communism, in which Lessig tries to convince us that communist Vietnam provides more “effective freedom” and better “ideals” than those in the United States that Lessig expressly and incessantly denigrates.

    Look more closely at the context in which Lessig does this. It appears in Code. The central thesis of Code is that we Americans need to get our government to regulate the hell out of all aspects of the Internet. Nevertheless, for reasons fully known only to himself, Lessig somehow feels the need to digress, undermine his own regulate-the-net thesis, and praise communist Vietnam in order to assure us that IF you live in a failing, totalitarian state with “barely any infrastructure,” (his words), and IF you are very careful to avoid criticizing the unelected government that mismanaged the infrastructure into ruin, THEN, you may feel some sense of “effective freedom.”

    That is just plain stupid. Yet the tourist Lessig—ignoring the contrary verdict of the hundreds of thousands of boat people who were leaving their “tangible property” and risking their lives in order to flee Vietnam’s “effective freedom”—felt compelled to cheerlead for the communist Vietnam of the early 1990s. Almost no one else did: Even Jane Fonda had given it up by then. And on the off chance that the report cited in my paper failed to convince you of the reality-defying absurdity of Lessig’s account of the “effective freedom” of communist Vietnam and “NamNet,” here is another: Access Denied: The Practice and Policy of Global Internet Filtering 155 (Ronald Deibert, et al., ed., 2008) (“Of countries filtering political content, China, Myanmar, and Vietnam blocked with the greatest breadth and depth….”).

    So let’s face facts, Mike. You may revere him, but Professor Lawrence Lessig has repeatedly gone out of his way—even at the cost of undermining his own regulate-the-net arguments—in order to try to rehabilitate some of the most economically inept, politically repressive, and murderous collectivist regimes in human history. Noting that Lessig went out of his way to paint smiley-faces on the ruins of the Berlin Wall was perfectly fair—and highly relevant.

    Third, you say that I have missed the point if I think that Lessig’s work is all about compulsory licensing. Actually, the alleged glories of compulsory licensing are one of its central, recurring themes. I’ve shown that something far worse than “compulsory licensing” is Lessig’s solution to the question of copyright and the Internet in Free Culture, here is a similar passage from page 201 of The Future of Ideas:

    “Some see these cases (in particular the and Napster cases) as simple; I find them very hard. But whether they are simple or hard, the underlying law is not unchangeable. Congress could play a role in making sure that the power of the old does not trump innovation in the new. It could, that is, intervene to strike a balance between the right of copyright holders to be compensated and the right of innovators to innovate. The model for this intervention is something we’ve already seen: the compulsory license.”

    In case you are still unclear about why I could reasonably conclude that compulsory licensing is a central—though admittedly not exclusive—theme of Lessig’s work, here are some more citations for you to review. Future of Ideas, 109, 201-02, 254, 255, 259, 260, 296, 297, 314, 315, 331. Free Culture, 57, 58, 64, 74, 75, 77, 103, 104, 172, 173, 194, 258, 294, 295, 296, 300, 327. In short, when Lessig repeatedly says things like, “Congress should empower file sharing by recognizing a similar system of compulsory licenses,” (FOI at 255), I can reasonably choose to believe that his words accurately report his views.

    Fourth, I find your defense of Lessig’s most-people-are-witless-cows claim laughable. His words betray you. Lessig is not talking about “regulations” being controlled by “big business interests.” He is talking about how people can be expected to respond to highly imperfect attempts to affect their behavior. As he puts it “This is who we are.”

    Fifth, I am at a loss to understand why you cannot admit that Lessig claims that a resource can be “free” yet costly and controlled by the state. Lessig says, (FOI at 12), “A resource is “free” if (1) one can use it without the permission of anyone else; or (2) the permission one needs is granted neutrally.” He is clear that permission is not “granted neutrally” if it is granted or withheld by an actual individual. Who—other than the state—do you propose is to be “neutrally” granting permission? If you are unsure, I think that Promises to Keep and the incessant references to compulsory licensing in The Future of Ideas and Free Culture ought to provide some clues.

    I see nothing else warranting any response. Thanks again. --Tom

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