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, 1 May 2008 @ 10:58am

    Good job Mike

    Mike wrote:
    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.

    mjr1007 replied:
    Mike these are all wonderful points. It is also great to see that you actually do know how to cite and are more then willing to do so when you feel the urge.

    It's unfortunate that in our previous discussions you never felt the need. For those who don't recognize my screen name try

    Why Do Patents Tend To Cause More Harm Than Good?

    Prediction: The LTE Patent Bundle Won't Prevent LTE Patent Lawsuits

    Just some semi-random thoughts on the discussions going on here.

    I was surprised to learn that Lessig is now floating compulsory licensing as a possible solution. In private correspondence after Eldred he seemed indifferent. Of course I prefer the phrase open license to compulsory licensing but I've been unable to gain any traction with it.

    It seems to me with open/compulsory licensing you would have, as they say in the FOSS community, free as in speech but not free as in beer. It solves many of the problems associated with monopoly licensing but still allows creative people to be rewarded. Many of the other schemes either blatantly favor the multinationals or just don't take into consideration rewarding independent writers and inventors.

    The smear jobs sound very similar to me to what they were trying to do to Linus and Linux. There was a goof running around trying to sell the idea the Linus based Linux on Minix. Andy was quite vehement publicly about how this was not the case. In private correspondence he was even less kind to this goof. Yet somehow people keep trying this. I guess they figure it's worth a shot. What some people won't do to try and collect rent.

    Finally Mike's infinite goods theory. It's nice to see, at least some of the time, he's calling it abundant goods. Infinite having a pretty specific meaning and clearly this does not meet it. Anyway, the abundant goods theory has the same feel to it as the new business model proposed by Net startups during the bubble. I suspect it will have the same results. Eventually, people will have to get back to real accounting.

    The problem with recorded music is that the cost has come down so much during the last 30 years and it's just not reflected in the cost, particularly for the big name acts. On the other hand many small acts have a tough time making it. Most of my musician friends have to have day jobs or tour endlessly. Neither of which is all that appealing. For this problem caps seem like a reasonable way to go. Once someone makes a million or so it seems fair to but it in the public domain. Otherwise the cost should represent the musicians cut plus a small percentage for distribution, unlike now, which has the musician getting a small percentage, if they get anything at all. Personally I put my compositions and arrangements of traditional piece in the public domain, but then it's just a hobby to me.

    Mike's idea of just eliminating IP just doesn't seem to be a good idea for promoting research, particularly basic research. There already is a problem with commercial enterprises getting out of basic research and leaving it mostly to governments. Having worked with government agencies in this regard it strikes me as a really bad idea. The Program managers seem to be clueless as do the SETA contractors they hire, at the lowest possible bid. Of course in commercial enterprises they view any research without an immediate payback as just being an unnecessary expense. It's the independent inventors, those who just want to investigate and invent who will most likely discover the breakthroughs needed. Basic Research more then anything else is what promotes those big gains in progress.

    Anyway, just my USD 0.02 worth.

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