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.
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How do I get this Mike? by mjr1007 on Apr 29th, 2008 @ 1:22pm
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How do I get this Mike? by mjr1007 on Apr 29th, 2008 @ 1:23pm
Mike,
Great job. You clearly know the difference between rhetoric and reason. You've done a great job of destroying this guys arguments. All I want to know is
"HOW DO I GET THIS MIKE?"
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Re: How do I get this Mike? uh what? by matt on Apr 29th, 2008 @ 1:43pm
Your comment makes no sense buddy.
Additionally, has anyone looked into this "PFF"'s events?
They are stacked to the freakin walls with one sided views.
example:
http://www.pff.org/events/pastevents/062807broadbandconference.asp
so a broadband conference. Who's in on it? Verizon, comcast, and someone speaking for the free press. Where do any of these people, who are all economists or PR members, have any qualification for any technical presentations or technical viewpoints as they are presenting?
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This sounds familiar by DCX2 on Apr 29th, 2008 @ 2:40pm
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.
Gee, this sounds familiar. It sounds like someone who watched a lot of Jeremiah Wright's sermons in search of sentences that could be taken out of context in order to paint Wright as a secret anti-American extremist (the true irony of which is that those who paint him as "anti-American" have probably done less for Americans than Wright has, with his service in the Marines and Navy and his various ministries for the poor and the homeless etc)
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Re: This sounds familiar by Anonymous Coward on Apr 29th, 2008 @ 2:42pm
and his multi-million dollar mansion being built on the backs of his poor parishioners.
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by MLS on Apr 29th, 2008 @ 3:08pm
Remember this comment yesterday concerning ALJs at the USPTO?:
"While the issue was first raised by a well-regarded scholar last year..."
That individual is John Duffy, one of the principals with the PFF.
That organization is not "stocked" with a bunch of dyed-in-the-wool "property" people, but with many who are well respected and versed in the field of law known as IP. I know and have dealt with several of them and they are far from being off the deep end as your numerous articles consistently suggest about those who hold views that run contrary to yours concerning digital content.
While I certainly do not hold Larry Lessig's views in disregard as his work is well respected, this does not mean that his views are necessarily correct and that those who may disagree with him are out of touch with the reality of the "digital age".
By the way, and to keep things in perspective, Larry Lessig is one of the individuals behind the concept of Creative Commons. To me this is interesting in that CC does rely upon copyright law (works are licensed since CC is a licensing scheme). For a work to be truly free, all rights would be disclaimed such that the work truly enters the public domain. If as so many who post in response to Techdirt articles seem to believe that copyright serves as an impediment to "progress" (as used in Article 1, Section 8, Clause 8 of the Constitution), then I do have to wonder why even the CC group operates under the umbrella of copyright law.
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I wonder.. by Vincent Clement on Apr 29th, 2008 @ 3:09pm
...if the PFF realizes that much of Disney's early movies were based on public domain content.
...if the PFF realizes that one of the reasons that movie studios are located in California was to avoid paying royalties to Thomas Edison.
...if the PFF realizes that the only reason that the internet took off was because universities and the government opened it up to others.
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Gee, the "smear job" seems to hold up pretty well. by Tom Sydnor on Apr 29th, 2008 @ 3:14pm
Mr. Masniak, you seem upset. I’m sorry that you think that I “smeared” Lessig by pointing out that conjoining 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.
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. As I point out, this presents us with an amazing spectacle: “Baby-Boomer academics arguing that while the kids may have been alright, the music of the 1960s and early 1970s would have been so much better had it been guided by Lyndon Baines Johnson and Richard Nixon.”
You don’t dispute any of this, Mr. Masniak. You can’t.
The paper also points out that similar “governmentally administered” reward schemes were common in communist countries—and were disastrous from every conceivable point of view. You do dispute this—but only by claiming that I err by “equating copyright to tangible property right.”
We’ll debate that later; for now, it’s irrelevant. 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. And such schemes were as, or more, disastrous than their collectivists schemes for producing tangible property. 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.
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. 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, Lessig fails to confront some brute and highly relevant facts from recent history. He does.
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.
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.
Nor do you dispute that Lessig analogizes most people to witless cows. He did.
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.
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.
In short, you bewail a “smear job” without showing that one occurred. 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. (Stalin? bland!?!?)
As for name calling, I did not accuse Lessig of that, I showed it. I quoted the very passages of his own articles that show that Lessig has effectively denounced himself as a terrifyingly self-righteous partisan who uses the rhetoric of racism to ”insist that the other side is the devil’s own work.” Those are Lessig’s words, not mine. I do no one wrong by exposing Lessig's own hypocrisy.
I understand that you do, however, really like Lessig’s explanation of why we should think of property rights like DDT. Others have concluded that it backfires miserably. See Julia D. Mahoney, Lawrence Lessig’s Dystopian Vision, 90 Va. L. Rev. 2305, 2324-26 (2004). I barely thought it worthy of note.
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.
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. Property rights are an indispensible predicate to that which economists call "market competition."
At any rate, thanks for the comments. --Tom
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Wasn't Lessig A Republican Once by Joseph Weisenthal on Apr 29th, 2008 @ 3:15pm
I read somewhere recently that when he was younger, Lessig was a Republican. And the impression I got is that he still holds some basic conservative/libertarian beliefs today. But I don't know much about the guy and I haven't had a chance to read the full article.
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Pro by bobbknight on Apr 29th, 2008 @ 3:41pm
When I see the term Progressive in the title of a Think Tank, club, society, etc I immediately reach to hold onto my money.
Because these progressives are always regressive and out to regulate what I do and how I do it.
And the revrind wright, a humble man moving into a humble multi-million dollar house, in the very humble rich peoples section of Chicago. Wearing his humble hand died dashiki that costs more than a Brooks Brothers suit. LOL
When you look at the Conservative/Libertarian many came from the party of Abe Lincoln. I have no use for the parties of W.E.B. DuBois and Gus Hall. Give me a true Jeffersonian any day.
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Re: Gee, the "smear job" seems to hold up pretty well. by Willton on Apr 29th, 2008 @ 4:41pm
Well, Mike, I don't know about the Lessig stuff, but Mr. Sydnor is dead on about you trying to make a distinction between a "monopoly right" and a "property right." It's a distinction without a difference. If you own property rights to a thing, whether it's a tangible thing (like a plot of land or an automobile) or an intangible thing (like the trademark TechDirt), you almost always have a monopoly over that thing. If you didn't, then the property right would not be all that valuable.
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Re: Gee, the "smear job" seems to hold up pretty well. by Mike on Apr 29th, 2008 @ 4:52pm
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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Re: Re: Gee, the "smear job" seems to hold up pretty well. by Mike on Apr 29th, 2008 @ 4:54pm
Well, Mike, I don't know about the Lessig stuff, but Mr. Sydnor is dead on about you trying to make a distinction between a "monopoly right" and a "property right." It's a distinction without a difference. If you own property rights to a thing, whether it's a tangible thing (like a plot of land or an automobile) or an intangible thing (like the trademark TechDirt), you almost always have a monopoly over that thing. If you didn't, then the property right would not be all that valuable.
The point is in understanding that not all monopolies are good. If you honestly believe that property rights are necessarily good (as Sydnor posits) and then that property rights and monopoly rights are identical, then why don't you support granting all kinds of monopolies. Why don't we have a gov't monopoly on sugar production? Or computers? After all, isn't that a good thing, according to this reasoning?
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Re: Wasn't Lessig A Republican Once by Mike on Apr 29th, 2008 @ 4:58pm
I read somewhere recently that when he was younger, Lessig was a Republican. And the impression I got is that he still holds some basic conservative/libertarian beliefs today. But I don't know much about the guy and I haven't had a chance to read the full article.
Yes, he was a conservative, and even clerked for Scalia.
These days he retains some libertarian leanings, but is much more "progressive."
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Re: Gee, the "smear job" seems to hold up pretty well. by Kiba on Apr 29th, 2008 @ 5:16pm
You are very interesting to dare think of monopoly rights as property rights.
I, on the other hand don't think of monopoly rights as the system of property right. Rather, I like to think it infringe on my property rights.
Whenever I buy musics or any other copyrighted items. I am still unable to use it to produce something else, or even copy it without the permission of copyright holders. I don't even own the product to some extent that I just brought.
However, when I buy something like a car, Toyota can't tell me that I can't use to produce something else, or even copy it. It is mine. I can even scrap the metals if I wanted to.
I can say that I am the owner of this car.
Monopoly rights can in some extent even control market conditions. They can make the goods artificially high like we see in the software market. They can prevent the entry of similar products and technologies as well the creation of goods that is derivative of products and technologies.
Private property rights can't exert such economic power. They are brought, copied, and used without restriction by original creators. Derivatives are created freely and the prices of goods can't be jacked up to artificially high prices.
This is the difference between monopoly rights and true property rights.
On your portrayal of Lessig, I never heard of such outrageous proposals. It is the most ridiculous lies that he propose government funded expressions as well the "surveillance" you speak of. I have no idea what you're talking about so correct me about Lessig's intentions.
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astro turf by Anonymous Coward on Apr 29th, 2008 @ 5:42pm
I do not like astro turf
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by Anonymous Coward on Apr 29th, 2008 @ 5:56pm
Mike, I think that we may be talking past each other. Do you mean that I err by treating copyrights as a form of property right or that I err by equating copyrights with rights in tangible property? There is a difference.
If you argue that I err by treating copyrights as a form of property right, then I have shown you why Milton Friedman and I disagree. If you read Justin Hughes’ article: Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson http://papers.ssrn.com/sol3/papers.cfm?abstract_id=934869 You will find that Friedman and I have very good reasons for rejecting such a claim.
To make a long story short, since Blackstone, legal commentators have recognized that the sin qua non of a property right is the right to exclude. The Constitution grants Congress the power to grant authors and inventors “the exclusive right” to their inventions or writings. In the case of both copyrights and patents, Congress exercised that power by granting, to authors or inventors, respectively, exclusive rights. Copyrights are a form of property right. Even Lessig admits this: “A copyright is a kind of property.” FC at 83.
To answer your question about air, neither Milton Friedman nor I think that it would make sense to grant transferable exclusive rights to socially valuable resources randomly, to people who played no role in creating those resources in the first place. (Jefferson, for example, wanted to offset the Copyright and Patent Clause by putting an express prohibition against the latter form of “monopoly” in the Bill of Rights.). Indeed, had you read the Friedman cite that I provided, you would have discovered that he was explaining why copyrights and patents are dissimilar to randomly bestowed trade monopolies.
On the other, if you argue that I would err by equating copyrights with rights in personal property, I would agree. The two differ, in ways that matter and in ways that do not. Indeed, the law reminds us of this by appending helpful adjectival qualifiers like “real,” “personal,” and “intellectual” to the various subspecies of property rights. There are differences between the two. So far as I can see, none of those differences matter here.
Let me know what you are arguing, and then I will clarify why I continue to reject Lessig’s plan for tax-funded, surveillance-fueled expression. And before you keep denying that this is what Lessig and Fisher are proposing, please review the following link:
http://cyber.law.harvard.edu/people/tfisher/PTKChapter6.pdf
(I know, this is only Chapter Six of Fisher's book, but when his own thought is concerned, Fisher is not so eager to give it away for free. It is, so far as I can tell, basically similar to Chapter Six of Promises to Keep.)
For a somewhat abbreviated version, (one that will look depressingly similar to the account that I provided), review Fisher’s Supreme Court brief in Grokster at 23-24. Here is the link:
http://www.copyright.gov/docs/mgm/fisher-law-profs.pdf
Needless to say, the latter plays down the surveillance angle a bit. But it is quite clear about the tax-funded part.
Thanks again. --Tom
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Re: Re: Gee, the by Mischa on Apr 29th, 2008 @ 6:13pm
How can either one of you claim that copyrights and property rights are the same thing? The difference between tangible and intangible isn't minor.
If you give something tangible to someone else you lose something. Be it the object you had, or the resources it took to make it, you loose something. You don't loose any of those things when you give away something intangible. Copying the intangible is quite easy and has almost no cost. Copying the tangible can take a lot of effort or money and is sometimes impossible no matter how much money you have to spend. (Anyone tried copying a plot of land recently?)
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Re: by mobiGeek on Apr 29th, 2008 @ 6:27pm
You've made one interesting point about a principal at PFF. But you have not addressed at all any of the many articles raised against PFF nor any of the many points raised against the one paper in particular.
So your point that these guys are not "deep end" doesn't hold.
No one said that Lessig's views are entirely correct. No one said that disagreeing with Lessig's views make one "out of touch". In fact, Mike explicitly states that he disagrees with Lessig on some issues.
And it isn't "interesting" that CC depends on copyright. It leverages the copyright system specifically. To say that something is "more free" by not applying copyright is to twist the meaning of "free". Free to copy is one thing, free to remove my credit of authorship is a completely different.
Those against copyright are not out to abolish the protecting of authorship credit; we are out to abolish the abuse of Article 1, Section 8, Clause 8 of the Constitution.
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Re: Re: Re: Gee, the by Willton on Apr 29th, 2008 @ 6:33pm
The point is in understanding that not all monopolies are good. If you honestly believe that property rights are necessarily good (as Sydnor posits) and then that property rights and monopoly rights are identical, then why don't you support granting all kinds of monopolies. Why don't we have a gov't monopoly on sugar production? Or computers? After all, isn't that a good thing, according to this reasoning?
I suppose it would be, according to that reasoning. But you make one honkingly incorrect assumption: you assume that I prescribe to the reasoning that all property rights are good. Strawman alert: I don't believe I said or implied that once. Talk about trying to smear someone...
What I am saying is that this mess about a monopoly right vs. a property right is a distinction without a difference. A property right, like the right to exclude, essentially gives you a monopoly over a certain thing in a certain way, regardless of whether that thing is a plot of land, a piece of candy, a trade name, or a copyright. All you're doing by calling an intellectual property right "a monopoly right" is using a pejorative to garner favor for your position.
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Re: Re: Re: Gee, the by Willton on Apr 29th, 2008 @ 6:51pm
How can either one of you claim that copyrights and property rights are the same thing? The difference between tangible and intangible isn't minor.
Property rights can be placed on anything, tangible or intangible. You seem to be confused in thinking that "property" only refers to tangible things. It does not.
Copyrights are a subset of the broader realm of property rights.
If you give something tangible to someone else you lose something. Be it the object you had, or the resources it took to make it, you loose something. You don't loose any of those things when you give away something intangible. Copying the intangible is quite easy and has almost no cost. Copying the tangible can take a lot of effort or money and is sometimes impossible no matter how much money you have to spend. (Anyone tried copying a plot of land recently?)
Certainly there's a large difference between tangible and intangible things. But that difference in and of itself does not change the fact that the Government can grant you property rights in either.
Also, learn basic English: if you give something away, you do not "loose" it -- you lose it.
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Re: Gee, the "smear job" seems to hold up pretty well. by mjr1007 on Apr 29th, 2008 @ 7:46pm
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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Re: by MLS on Apr 29th, 2008 @ 9:26pm
"Let me know what you are arguing..."
The essence of the arguments provided by many here is that there is no form of intellectual property that is properly characterized as "property, that the existence of intellectual property rights in large measure stifles creativity and innovation that does violence to "progress" as used in Article 1, that digital goods deserve, no make that demand, different treatment of non-digital goods because they are "infinite", that P2P file sharing of works protected under law is a good thing, that Grokster and Napster were wrongly decided by courts ill-informed about technology, that disclosure is not a legitimate factor within the calculus of the patent process, that business models relying on intellectual property are short sighted and ultimately doomed to failure, that the mere presence of a patent or copyright imbues the holder thereof with a monopoly that necessarily translates into market power sufficient to maintain inventions and works at artificially high levels because competition is invariably restrained, and that in large measure those with the temerity to suggest otherwise on these and other points are generally living in the dark ages.
As to your two propounded questions, I believe that the answer is likely you have erred on both counts. Copyrights (including all other forms of what we generically term "intellectual property") are not property in any sense of the word, and that the differences between copyrights and tangible property are of no moment because the law in practice wrongfully treats them as one in the same.
Of course, any attempt to explain what such rights specifically entail, how they differ and why the difference, is largely met with derision and comments that once more a lawyer is trying to engage in deliberate obfuscation and conscious ignorance of the massive evidence that the laws do not serve their intended purposes. In sum, they are an unnecessary evil that should forthwith be eliminated. Interestingly, few if any seem to have any problem with the concept of trade secrets, but that one information is out of the bag it should become fair game for all to use...with repetetive reference to Jefferson's 1813 letter as positive proof that they are right because it seems that he is viewed as the "Founding Father", as opposed to merely being but one of the "Founding Fathers".
The phrase "swimming up a waterfall" readily comes to mind with each attempt to address each of the above (and more) misconceptions.
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Re: Re: Re: Re: Gee, the by Colg on Apr 29th, 2008 @ 9:39pm
"Certainly there's a large difference between tangible and intangible things. But that difference in and of itself does not change the fact that the Government can grant you property rights in either."
This isn't the point of the debate. Certainly the government can grant property rights to any number of things. The question is should it? and for how long?
"Also, learn basic English: if you give something away, you do not "loose" it -- you lose it."
It occurs to me that if you give something away, you do in a sense loose it. But that doesn't really matter, the point of your comment wasn't about English, it was about being petty.
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Re: Re: by Colg on Apr 29th, 2008 @ 9:57pm
What a beautiful set of straw men you have there.
Three sentences so ponderously inflated with convoluted vernacular that they fall on their swords rather than bear the weight.
You must have gotten high marks in Obfuscation 101
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the truth is out there by Nick on Apr 29th, 2008 @ 11:36pm
This smear campaign, brought to you courtesy of Big incumbent Media outlets: AT&T, ClearChannel, NBC Universal, Time-Warner, Viacom, Disney, Microsoft, Sony, Verizon, Comcast, DirecTV.
http://www.pff.org/about/supporters.html
All of the companies Lessig points out in Free Culture, chapter Ten, "Property," sub chapter "Market: Concentration" page 164. Very interesting. It looks like someone is trying to get their revenge.
Regrettably, also Yahoo and Google are on the list of supporters. They should now reconsider their support. Yahoo and Google, I challenge you, drop your support for PFF now!!
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The Internet by Igor The Troll on Apr 29th, 2008 @ 11:49pm
Looks like Washington Gestapo is looking to control the Web, the developers, and the publishers.
I hope they will not be declaring Martial Law any time soon!
Freedom of Speech, what is that? I smell Red alert! Every blogger is Bin Laden. -;)
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Where's the smear? by Mike on Apr 30th, 2008 @ 12:02am
Hi,
I'm browsing from Sweden, maybe my upbringing here contributes to my failure to see where the smear is in saying that someone is a socialist or communist. They are two schools of political thought, just as libertarianism or what-have-you. It's only a smear if it sticks to you, and it only sticks if you agree to let it I guess.
/Mike
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Re: by Mike on Apr 30th, 2008 @ 1:22am
Tom,
I note that you don't respond to the points in your comment where I added the necessary "context" to show how your interpretation was wholly inaccurate and misleading.
Do you mean that I err by treating copyrights as a form of property right or that I err by equating copyrights with rights in tangible property?
You err in treating copyrights as tangible property.
The Constitution grants Congress the power to grant authors and inventors “the exclusive right” to their inventions or writings. In the case of both copyrights and patents, Congress exercised that power by granting, to authors or inventors, respectively, exclusive rights. Copyrights are a form of property right. Even Lessig admits this: “A copyright is a kind of property.” FC at 83.
Ah, Tom, that's also misleading. Yes, some people call it property -- but what you do in your paper is simply assume that because some people call it property or a property right that that means anyone who is for changing copyright is somehow anti-property. It's not. Not at all.
I am 100% in favor of property rights -- for scarce goods. Why? Because that's the entire point of property rights. The sole purpose of property rights was the efficient allocation of scarce resources. Property rights make it much easier to handle the efficient distribution and allocation of those scarce, rivalrous goods.
However, economically, this model breaks down when you have goods that are "infinite". Those goods are already efficiently distributed, since anyone who wants it can get it for free, and no one is any worse off for it. From a free market perspective, this is the optimal solution -- so there's NO NEED for property rights on such things. In fact, they hinder the free market by limiting a resource unnecessarily.
That's not an anti-property stance at all. It's a pro-property stance. It's against the misuse of the concept of property by applying it to things that aren't property at all.
Frankly, your position is more anti-property, because you weaken the importance of real property rights by trying to cover non-property with them.
To answer your question about air, neither Milton Friedman nor I think that it would make sense to grant transferable exclusive rights to socially valuable resources randomly, to people who played no role in creating those resources in the first place.
I didn't say grant it randomly. We could auction it off -- just as your employers say we should do with spectrum.
There are differences between the two. So far as I can see, none of those differences matter here.
Then you really need to revisit your thinking. The fact that infinite goods are infinite means that they're not property -- and to accuse Lessig of being anti-property for pointing that out is a lie.
Let me know what you are arguing, and then I will clarify why I continue to reject Lessig’s plan for tax-funded, surveillance-fueled expression. And before you keep denying that this is what Lessig and Fisher are proposing, please review the following link:
Once again (as I already pointed out), this was a minor point (in an appendix no less) that Lessig pointed out, along with multiple other suggestions -- and it was suggested not as the perfect solution, but as one idea to think about.
You acknowledge none of that.
I'm not going to defend Fisher's plan. I'm on record, since it was announced, as opposing it. I think it's a terrible plan. But it's hardly quasi-socialist. It's no more socialist than any other compulsory license programs in place.
Are you against all of those as well?
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Re: Re: Re: Re: Gee, the by Mike on Apr 30th, 2008 @ 1:25am
But you make one honkingly incorrect assumption: you assume that I prescribe to the reasoning that all property rights are good. Strawman alert: I don't believe I said or implied that once. Talk about trying to smear someone...
I was referring to Tom's statements, as I stated in the comment.
What I am saying is that this mess about a monopoly right vs. a property right is a distinction without a difference.
I disagree for an important reason. Property rights is used as a term that suggests a natural right to property. The idea of a monopoly right is clearly seen as something granted by the gov't. That distinction is important.
Using "property right" to describe a monopoly is misleading. It implies a natural right where there is none.
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Re: Re: by Mike on Apr 30th, 2008 @ 1:30am
As to your two propounded questions, I believe that the answer is likely you have erred on both counts. Copyrights (including all other forms of what we generically term "intellectual property") are not property in any sense of the word, and that the differences between copyrights and tangible property are of no moment because the law in practice wrongfully treats them as one in the same.
But that is not what Tom is arguing. Tom is saying that someone who takes the position that copyright's negatives outweighs the positives is then anti-property rights.
Do you see why this is problematic?
Of course, any attempt to explain what such rights specifically entail, how they differ and why the difference, is largely met with derision and comments that once more a lawyer is trying to engage in deliberate obfuscation and conscious ignorance of the massive evidence that the laws do not serve their intended purposes.
Again, not quite. Our argument is that you are arguing on "this is what the law states" which is meaningless to what we're pointing out, which is "this is what economics makes clear."
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Re: Where's the smear? by SteveD on Apr 30th, 2008 @ 2:18am
Inevitably in American debates it seems the winner isn't the one who can refute his opponent’s arguments, but the first person that can prove the other guy is, in fact, an Evil Left Communist who hates America.
Given how long ago the cold war ended you'd have thought they'd find a new 'bad guy' by now. Unfortunately Bin Laden hasn't made his stance on copyright law public knowledge.
Yet.
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Re: Where's the smear? by Mike on Apr 30th, 2008 @ 2:27am
I'm browsing from Sweden, maybe my upbringing here contributes to my failure to see where the smear is in saying that someone is a socialist or communist. They are two schools of political thought, just as libertarianism or what-have-you. It's only a smear if it sticks to you, and it only sticks if you agree to let it I guess.
Read the paper (and Tom's replies). He equates socialism/communism with the worst abuses of Stalinism and oppressive regimes in Cuba and Vietnam.
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Why can't we all just get along? by Crosbie Fitch on Apr 30th, 2008 @ 2:34am
Intellectual works, as expressed in a medium, are just as much property as any material object or work.
So, tangible or intangible, intellectual or material, doesn't affect what may be property.
However, copyright is an unnatural and unethical privilege that suspends our natural property rights to give a commercial benefit to publishers. Copyright is an economic incentive for supposedly greater cultural production than would otherwise occur, that we are to believe compensates for the loss of the public's natural IP rights, their liberty to share and build upon the published IP they purchase.
It's clear why the publishing cartel would sponsor a think-tank to argue for the retention of copyright, and to persist in misconstruing copyright as a natural property right (when it is nothing of the sort).
Abolish copyright and restore everyone's intellectual property rights.
But, don't jump from the frying pan into the fire and institute a tax to compensate publishers for the loss of their unethical commercial incentive.
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Of Duranty, Fonda, and Lessig by Tom Sydnor on Apr 30th, 2008 @ 4:59am
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 MP3.com 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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Re: Gee, the "smear job" seems to hold up pretty well. by Anonymous Coward on Apr 30th, 2008 @ 6:36am
First, it's "Masnick," not "Masniak." That was rather irritating.
Second, it seems a stretch to claim that the failure of expressive arts in a communist regime was due solely to their flawed 'rewards' program. I guarantee that expression failed because it was a communist regime, and would have failed regardless of what rewards they offered. 'Free expression' isn't really encouraged in such an environment.
I would congradulate you on your rhetorical form, though. Except for being generally jerky, piece-meal, and unfocussed, you do a good job at appealing to emotional resonses by invoking bogiemen like Castro and Stalin, as well as the ever-popular repitition tactic, saying "he did," and "nor do you dispute" over and over again. Very nice.
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Re: Why can't we all just get along? by Anonymous Coward on Apr 30th, 2008 @ 7:00am
Actually, I think Mike makes a good point when he notes that property rights are instituted for the efficient distribution of scarce goods (like land, food, HD TVs...), but that intangible goods, being infinite, need no such system -- anyone who wants it can get it without reducing anyone else's possession of it.
I can own a car; if someone else attempts to take that car, I am deprived of it. I can possess a thought, but someone else gaining that same thought does not lessen my own possession.
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"literally" - common rhetoric absurdity by Wesley Parish on Apr 30th, 2008 @ 7:18am
I've come up against that sort of thing in the past, and I thought it was a cheap rhetorical trick the world was better off without.
Getting down to the nitty-gritty of the issue, is "intellectual property" a real property?
Perhaps the question should be refocused to "what is this "real" property everybody's talking about?"
In an article in the NZ Business Review some years ago, the writer said the thing holding NZ Maori back, when they had recovered their property from the NZ Government, was that it was land-in-common, or if you take the viewpoint that the tribes were proto-states, it was proto-state land that had not yet been parcelled up per family and used - and for all we know and should care, handed back to the proto-state until someone else had a need for it. The proto-states, until they were forcibly prevented from doing so, or otherwise pacified, held on to their land by main force.
According to the article mentioned, the Maori tribes had to accept the idea of "private property" - ie, the idea that people could "own" stuff in perpetuity without necessarily having any real connection with it - before they would prosper.
So, from an anthropological perspective, what is this "real property right" that is under discussion?
It is a cultural construct, derived from state monopolies, which it would appear, derive directly from European feudal theory that all power in a given piece of territory derives directly from a sovereign who is independent of his people as regards the source of his authority and power.
If I write something, and have based it on my own experiences and frame of mind, then I should not require the state to tell me it is mine, any more than I require the state to tell me the secretions and excrement of my body is mine. After all, the state had nothing to do with its production.
And that is where I find the likes of this Progress & Freedom Foundation so ... fascinating, so feudal. They rely on the state implicitly to define and enforce an abstract right against others. This idea that the state has the right or duty to enforce rigid law against an activity that has traditionally - ie, throughout recorded human history, just read the latest Shakespeare Complete Works' forewords, introductions, etc, to get an idea - been freeflowing and dependent on reputation rather than force ... I find neither freedom nor progress in it.
At the minimum, I expect the state to be an impartial arbitrator, not the feudal sovereign - but that is where the "intellectual property is "real" property" takes us.
Oh, for what it's worth, read "Road Belong Cargo"
http://www.amazon.com/Road-Belong-Cargo-Movement-Southern/dp/0881334588
for the description of a world where ownership of ideas was held, and held rigidly, and notice how difficult it was for Yali to upgrade his ideas, no matter how hard he tried.
Hate to tar you with a very very old brush, Tom, but if it sticks, enjoy it. You'll make the US the Cargo Cult Capital of the Word.
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by troye on Apr 30th, 2008 @ 8:05am
great book
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Re: "literally" - common rhetoric absurdity by Crosbie Fitch on Apr 30th, 2008 @ 8:22am
Property arises out of our natural/human rights to privacy and truth. Our natural right to privacy arises out of our physical ability to hold and protect a private space and articles within it (material or intellectual). Our social sense of honour, integrity, and the permanence of facts gives rise to the right to truth, that people may create voluntary binding agreements, e.g. to exchange property (private space or articles).
We establish the state to enforce our natural rights rather than have to rely upon our individual brute force.
Unfortunately, a corrupt or misguided state may suspend its recognition of some of our natural rights to privilege a section of society that the state feels would consequently create a benefit to the rest of society that outweighs the value of the rights it has suspended.
Predictably, the beneficiaries of such privileges are the ones who lobby most persuasively and argue most fervently for their creation, preservation, and extension. Meanwhile, the poor citizens who've had their rights suspended by the very state that was supposed to protect them find it difficult to do much about it.
Fortunately, the Internet renders the privileges unenforceable, unnecessary, and irrelevant.
Unfortunately, it takes a long time for the privileged incumbents to confront this fact.
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In defense of Sydnor's understanding of freedom by Scott Cleland on Apr 30th, 2008 @ 8:48am
This is Scott Cleland, Chairman of NetCompetition.org, an e-furum funded by broadband interests.
Having blogged against Professor Lessig's Orwellian doublespeak in his usage of the word "free" and others, I have to chime in with a strong defense of Tom Sydnor's outstanding deconstuction of Professor Lessig's thinking in his book "Free Culture."
For my full comments see my post on the subject:
http://www.precursorblog.com/node/738
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Re: Of Duranty, Fonda, and Lessig by Mike on Apr 30th, 2008 @ 9:04am
Hi Tom,
I'm in a rush so I'll come back and respond more fully to this comment later, but a couple of quick points:
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.
You have a weird, sick compulsion to fabricate. As was pointed out, Lessig's position is ridiculously different than Castro, Lenin or Stalin. Repeating that is a cheap political trick.
You ought to be ashamed of yourself.
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.
Um. You either did not read what I wrote, or are pulling another sleazy lobbyist trick. I did respond to the "bland communism" point, and I did not "defend" his cheerleading for Vietnamese communism, because he DID NOT cheerlead Vietnamese communism.
Read what I wrote again. I merely pointed out that you explanation was taken out of context and incorrect.
Do people actually pay you good money to lie?
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.
Um. I don't revere him in the slightest. I disagree with him on many key issues, which I've made clear. But your description of his positions is simply incorrect. I may be more closely aligned to you politically and economically, but your intellectual dishonesty in smearing someone you disagree with is terrible.
The fact that you think that I'm defending him because I revere him, when I've clearly laid out the points on which you are incorrect (which, I'll note, you don't actually respond to), just shows you're focused smearing, rather than discussing.
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.”
Once again, you mislead and ignore the points raised.
I like, also, how you don't respond to the question about Bryan Caplan.
I'll respond to your other points later, but so far, all you've shown is a remarkable talent for taking things out of context and twisting things to suit your position.
It may be how things work in DC, but it's nauseating.
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Re: In defense of Sydnor's understanding of freedom by SomeGuy on Apr 30th, 2008 @ 9:14am
I was hoping your full comments would offer more insights into your position than your little blurb here. I was dissappointed.
One thing that struck me, and it'd be nice to hear your answer, is how a thing might be defined as free and yet not exclude an individual's ability to deny or exclude use. You claim that when Lessig says this, he 'redefines' free. It may not be the cost/price definition many think of (English is notorious for having many meanings to often-used words), but a thing can hardly be considered free if I might be denied it, can it?
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Re: In defense of Sydnor's understanding of freedom by Crosbie Fitch on Apr 30th, 2008 @ 9:16am
Scott, talking of doublespeak, you wouldn't happen to call yourself a libertarian by any chance would you?
I take it you're a full supporter of the Progress and Freedom Foundation?
Lessig's book 'Free Culture' may certainly be criticised for falling short of a vision for a cultural freedom unfettered by the constraints of copyright, and consequently utilisation of an inferior definition of 'free', making a poor basis for 'free culture' in the truest sense. However, such criticism cannot be credibly levelled by any member of the PFF who must avow strong support for the IP privileges of copyright and patent.
If you truly wish to postpone copyright's imminent abolition I suggest you'd be far better off lauding Lessig's thinking, praising his works, and heavily sponsoring Creative Commons. No-one else is being so constructive in keeping copyright on the statute books.
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by Nick on Apr 30th, 2008 @ 10:58am
Why do I need to be an "idea serf" to the media companies that Mr. Sydnor represents? I, Masnick, Lessig, Doctorow, Von Lohman, Boldrin, Levine and others intellectuals in this space have declared: I do not want to be and IP serf, and to allow such control by the few is bad for society.
Secondly, a compulsory licensing of IP would topple incumbent media powers that Mr. Sydnor represents while giving freer expression using IP to normal people who do not have to hire lawyers. Mr. Sydnor equates this as "tax-funding of expression with a regime of pervasive surveillance." Good one, governor! Nice spin. Are the taxes that I pay to kill innocent people overseas any less evil? I would much rather have that tax money go to insuring a wider freedom of my expression. Is the IRS not a form of surveillance?
I'll tell you what Lessig has in common with Castro, Lenin, Stalin, Minh. They are/were seen as threats to U.S. Capitalist global agenda, and were/are being deamonized by U.S. propaganda/media conglomerates to the rest of the world for their own financial gain.
Were they oppressive to their people? Sure. But the U.S. propaganda machine will only use this argument when it suites them. Oil in Iraq? Sadama is a tyrant. Oppression and genocide in Tibet, Myanmar, or Daufar? Sorry, no financial windfall to be had by intervening there.
What Mr. Sydnor is attempting to do is show guilt by association of who mutually exclusive ideas: a small fee for freer expression and oppression of people. If Castro, Lenin, Stalin, Minh, could see the dangers of maximilast capitalism, but at the same time, happened to oppressed their people. Are counties like Sweden, who have the loosest IP regulations oppressing their people? I don't think so.
To pinpoint Mr. Sydnor's intellectual dishonesty, he wants the world to believe that if you have a government that allows freer use IP and a way to compensate creators without hiring lawyers, then you must also be an oppressor of your people. Actually, the opposite is true. The sweet irony in Mr. Sydnor argument is that restrictive use of ideas and IP is the new way to oppress of people by making them pay the controlling media powers and lawyers.
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Re: by MLS on Apr 30th, 2008 @ 12:08pm
Pejorative comments aside, from the perspective of an attorney the essence of your agrument should be directed to the Anti-trust Division of the Department of Justice.
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Ready for my shill job Mr. Masnick: by Jason Phillips on Apr 30th, 2008 @ 12:35pm
I'm surprised that you don't recognize Lessig's comment on DDT as a thinly veiled comparison of the music industry as the murderers of wildlife. Lessig never squares the fact the DDT worked with the reason it failed. DDTs usefulness is detracted simply because the delivery method was flawed and little oversight was involved. Vis a vis, DRM and property rights are detracted because neither does there exist a stringent enough framework of law to allow proper implementation, nor does there exist a truly detrimental punishment for those who, outside of the lawful user base, continue to flaunt their disregard for society and its laws simply to fulfill their deep hunger to be recognized for their "contribution" to piracy and theft. /sarcasm
That aside, your insight is once again a pleasure to absorb, Mike. I'm glad to see that Tom is here too, at the very least it shows dedication; I'm eager to see how (if) this resolves.
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Re: to MLS, by Jason Phillips on Apr 30th, 2008 @ 12:44pm
Of course Lessig is a proponent of Creative Commons. In his world, CC would be used to grant "rights" to those, like me, who create for public consumption. The "real" copyrights would only be available to the Disneys, NBCs, and CBS's of the world who create for profit, and they would be free to take my CC works and use them as their own for eternity, without compensation to me. It's a wonderful dream for the Socialist community to push Creative Commons in the way that works for them.
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Re: Re: to MLS, by Jason Phillips on Apr 30th, 2008 @ 1:04pm
Good lord! I've forgotten to add the /sarcasm tag to my previous reply to MLS. Apologies all around for the confusion.
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DDT by erik jay on Apr 30th, 2008 @ 1:20pm
The notion that DDT is evil is ludicrous. Every African country is begging for it. Every word from Rachel Carson and her cronies since "Silent Spring" has been pure BS.
DDT is a political victim. Try a little skepticism. It's healthy.
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Re: Re: to MLS, by Nick on Apr 30th, 2008 @ 1:28pm
Creative Commons is an option to a creator. Its proponents do not suggest that everyone abolishes copyright and replace it with Creative Commons.
There are many different types of Creative Commons licenses. By far, the most popular is BY-NC-SA. BY states that the secondary user of the work say who the original artist its, NC means it cannot be for commercial purposes, and SA is share alike, meaning the license becomes viral, that the secondary user must also license their derivative work as a share alike license, as well as any others. This is probably becuase authors open to CC appreciate flattery, they hate red-tape and their possible contribution to it.
The Creative Commons license that most opponents default to thinking about is BY only, who's only requirement is author attribution. It which allows commercial derivative use, does not require the derivatives be licensed under CC. It is easy for opponents to say that it allows media corporations to "steal" artists' work. But the artists might decide on this license for personal reasons which the opponents are either not aware of or ignorant about. Some authors might not even disclose the purposes for the choice of the license he or she choses.
It is possible to be a profitable and commercial with Creative Commons or GPL licenses. Examples are Nine Inch Nails, Cory Doctorow, MySQL. Virility is a marketing strategy. Allowing content and ideas to flow with less restrictions than copyright can be central to the marketing strategy for some. CC allows artists and strategist to chose CC for its virility. If the author choose the traditional copyright for another type of work, he or she may have reasons, but the freedom to chose CC or copyright is the key. It is intellectuality dishonest to suggest that anyone who picks a CC license is an IP abolitionist or disrespectful of the way other peoples chose to license his or her works.
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Re: DDT by Jason Phillips on Apr 30th, 2008 @ 1:51pm
Very true, Erik. Although I did wrap my DDT post to sarcasm (as a response to Mike's "challenge"), I am a proponent of its proper use because, in truth, it works. In proper application it prevented the deaths of countless people in Africa by helping to stop the spread of Malaria. Those who fail to recognize the unintended consequences of banning its use there are either misinformed or lying. Much in the same way that nuclear power has been derided by the U.S. public because of their lack of knowledge, so has the advantage of DDT.(7 out of 10 people I interviewed for research on nuclear power actually believed that nuclear waste was a green ooze stored in 50-gallon drums!)
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Re: Of Duranty, Fonda, and Lessig by Jason Phillips on Apr 30th, 2008 @ 2:37pm
Pardon the intrusion gents, but Mr. Syndor has risen my ire with this comment:
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.
This is a complete misrepresentation of Lessig's analysis. His thought as related to Vietnam simply indicates that:
1. a communist regime has less draconian copyright laws than our democracy;
2. those who are proponents of near-infinite copyright are exploiters who would rather rely on past success to fund future failure and litigation rather than allowing a single penny of value to be passed on to the people.
Now that sounds like communism to me.
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Re: Re: Why can't we all just get along? by Crosbie Fitch on Apr 30th, 2008 @ 4:00pm
Rights aren't instituted, they're protected.
Privileges such as copyright are instituted (that necessarily suspend one party's rights to reserve them for another).
The idea that one loses nothing when a burglar steals copies of one's innovative designs because one still has an original copy is a tad naive.
Try telling a software engineer that the source code they've sweated over can be copied without payment because they get to keep a copy.
If you want a copy, pay for it. You've no right to make a copy without payment.
That's why intellectual property is a right.
What suspends this right is copyright, because it stops you making copies of your own property - in order to reserve this as a privilege for the publisher (assigned the work's copyright).
This is why copyright is unethical and should be abolished.
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Re: Re: Re: Why can't we all just get along? by Willton on Apr 30th, 2008 @ 10:55pm
If you want a copy, pay for it. You've no right to make a copy without payment.
That's why intellectual property is a right.
What suspends this right is copyright, because it stops you making copies of your own property - in order to reserve this as a privilege for the publisher (assigned the work's copyright).
This is why copyright is unethical and should be abolished.
Whoa, I've never seen such a misunderstanding of copyright. Crosbie, you've got it all backwards: copyright is designed to protect the author, not the publisher. Copyright gives the right to prevent another from copying a work to the author, not the publisher. See 17 U.S.C. Section 201(a).
Now, if an author decides to assign his copyright to the publisher, however, that's his own fault.
Copyright is not a privilege; otherwise it could be taken away from you. Copyright is a right, one that can't be taken away from an author without his permission. That's why it's called "copy (wait for it) right."
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Re: Re: Re: Re: Why can't we all just get along? by Crosbie Fitch on May 1st, 2008 @ 1:00am
Copyright is a transferable privilege that being attached to a work is initially enjoyed by the work's owner (not necessarily its author). The privilege was created to benefit publishers (since they, not mere authors, were the only ones able to assert this monopolistic privilege and benefit from it commercially - supposedly thus incentivised to publish more works than otherwise).
If you believe copyright is an author's right rather than a privilege for publishers you should wonder why, in many jurisdictions, authors employed by publishers have their privilege of copyright 'taken away from them'.
The privilege of copyright is so named because it suspends the 'right to copy' from the public in order to grant this as a privilege for the benefit of publishers (and allegedly for a greater benefit to the public than the right suspended from them).
It is predictable that those who enjoy copyright would misconst