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), 1 May 2008 @ 3:07am

    Re: Of Duranty, Fonda, and Lessig

    Ok, responding more fully to the other points.

    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.)

    You've made this argument before, but it actually does not impact the economics of abundance. Ex post scarcity doesn't apply to infinite goods. Ex ante scarcity does -- and that's factored into the model. An infinite good prior to production is scarce -- and thus you should expect to pay to have it created, just like any other scarce good.

    I have pointed that out over and over again. The creation of new works is a scarce good -- and traditional economics has no problem pricing scarce goods above zero.

    But for now, suffice it to say that the “economics of abundance” cannot explain the differences between Lessig and I: We both reject it.

    Fair enough, but, that's not quite the point... Throughout your piece, you conflate copyright with ALL property rights -- and don't even acknowledge that the two may be different.

    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.

    Actually... no. He suggested, as one of many possible options FOR DISCUSSION, a plan that is not at all "remarkably similar to those that have repeatedly produced disaster." It's a bad plan -- I agree. But then you incorrectly and unfairly claim that it's the equivalent of communism or socialism -- whereas any reading of Fisher's text would realize that it is not.

    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.

    This is also a blatant misreading of Code. It may fit in your black-and-white world that is apparently entirely free of nuance, but it's simply not what Code is about. Code is quite clearly about how technology is running into boundaries presented by gov't regulations, and how certain aspects need to be rethought. Then, that raises questions about how you might change those regulations.

    Btw, you pull a sneaky lobbyist trick here again -- in that you now claim that "regulations" are bad -- but when we talk about copyright regulations, suddenly those are "good."

    Funny how that works.

    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.

    No one denies that he brought it up as one solution, but I note that you chose not to respond to my question about all of the existing compulsory license out there. Are they socialist as well? Are they causing people to flee in boats and murder to reign down on us?

    Come on, man, at least be consistent.

    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.”

    Again do you think Bryan Caplan is a socialist? Lessig was clearly stating that people can be influenced. Do you deny that's the case? If that's not the case, why have you written your paper?

    I see nothing else warranting any response.

    So, let's see... what did you find "not warranting a response." Basically all of the obvious mistakes that you made.

    You didn't explain the out of context statements.

    You did not explain why you are against auctioning air, but in favor of auctioning spectrum.

    You did not explain how recognizing the differences between copyright and property makes one anti-property.

    You did not explain how commenting on the different aesthetic of communism vs. capitalist is praising Stalin.

    You did not explain whether you support existing compulsory licensing.

    You did not explain if you think Bryan Caplan is also a socialist.

    Basically, you did not respond to a single substantive point, but merely repeated your out of context statements.

    You're not painting a very flattering portrait of your own scholarly skills. In fact, you're not doing yourself any favors as a political hatchet man either, since the arguments are so obviously wrong to anyone who looks at the source material.

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