DISQUS

Greg, my comment was directed to Mr. Timothy Lee. Joe, if you are unable to see why a system of private property rights and markets--one that has, by the way, helped make the United States the world's most successful creator and exporter of expression--might be preferable to the use of federal taxation to encourage the production of private expression, then further discussion would probably be unhelpful. And if you fail to realize that content industries tend to be highly entrepreneurial, then you should review the relevant data. I suggest starting with Entertainment Industry Economics, by Vogel. In short, your real quarrel is with James Madison and George Washington, not me. --Tom

Tim, be assured, you are not “disingenuous and silly.” To the contrary, you have proven yourself to be an intellectually dishonest coward. After all, only a dishonest coward, when confronted repeatedly with relatively gentle suggestions that he should stop repeating a mistake that he once made by parroting others, would respond by re-parroting the same questionable source material without confirming that it was fair and accurate. Only dishonest, cowardly little bunnies behave like that, Tim.

So let me be very clear, young man. Whenever you start delivering pedantic lectures about “selective quotation” based upon the say-so of someone else, you not only become responsible for the accuracy of the claims that you are parroting, you also become the target of your own prissy lecture—if you have failed to confirm the accuracy of the claims that you are parroting. Any adult knows this, Tim. That’s why adults do not deliver such lectures without checking their sources to be very, very sure that they are right.

And don’t get me wrong: I would never hold you, Tim, to the same, juvenile one-mistake-discredits-the-work standard that you would apply to me. I would never do that because your made-up “standard” is unrealistic. Being an adult, I know that the error that you have made here—parroting without checking source materials—is probably an inevitable flaw in discourse among fallible humans.

That is why, Tim, I suggested, gently—and very gently, given the seriousness of the accusations of wrongdoing that you were so casually hurling at me—that perhaps you should re-check the sources of your allegations. Your baby-bunny reply was, “whatever his last name, Julian's work speaks for itself.”

Tim, the cowardice and hubris in that reply is appalling and revealing. Essentially, you claimed that you just can’t be bothered to read one page of Code to see whether—maybe—you were so lazy that you wrongly presumed that your “[ex-roomate’s] work speaks for itself” and mine was inherently unreliable. This speaks eloquently not only to your lack of intellectual integrity, but also to your lack of intellectual curiosity. You, Tim, you have proven that you really just don’t care about truth.

Grow up, Tim. If you parrot your ex-roomie’s claims, then you assume responsibility for their accuracy. Or, at least, you would have assumed responsibility for their accuracy were you were an adult, rather than a lazy schoolboy who stomps, pouts and refuses to take responsibility even when caught slinging inaccurate and very serious accusations of wrongdoing at others.

You have thus become the definition of intellectual cowardice, Tim. And if you deny that, little boy, then why don’t you check your sources and report YOUR opinion of their reliability rather that forcing your readers to hopscotch among a book, a paper, and two blogs in order to discover whether your opinions have some reasoned basis?

That is intellectual cowardice incarnate, Tim. You really don’t care whether you are spouting truth or nonsense. That makes you truly contemptible and pathetic.

Finally, Tim, I note that you have, for the third time, run away from perfectly fair questions about your use of the term “monopoly rights.” For the last time, I ask that you stop hopping, turn around, and defend—if you can—the misleading rhetoric that I have now repeatedly challenged. Why are you afraid to defend yourself, Tim?

But, Tim, in the unlikely event that you have the intellectual courage to defend yourself, don’t bother with trite nonsense about “statutory rights.” You forget: unlike you, I actually know something about copyright law. Consequently, I know—as you would have known were you educated and intellectually honest—that modern copyrights are mostly “statutory” because Congress, in 1976, chose to preempt most of the state-law, common-law copyrights that were indispensable during the first 186 years of U.S. copyright law.

For example, federal copyright laws did not protect sound recordings until 1971, but you would be ill-advised, Tim, to assume that you can thus freely copy and distribute Beatles recordings from the 1960s. Why? Because they are still protected by common-law copyrights. That makes your excuses for your misleading rhetoric look really lame, doesn’t it?

So, Tim, what is your latest excuse for the obvious attempt to mislead inherent in your use of the term “monopoly rights”? Your last excuse was nonsensical gibberish. What is your new excuse, Tim?

In any case, feel free to hop away, Tim, that will merely confirm everything that I have just asserted. —Tom

Tim, you say, “Given your history of misrepresenting others' views, I think you should be particularly careful in this respect.” Tim, I have no history of mischaracterizing other's views. But you do—and you generated this despicable “history” by being too immature, too irresponsible, and too biased to check your sources, (and read them with an unjaundiced eye), before leveling serious accusations at those who disagree with your brilliance. For example, and as my previous post suggested, had you bothered to check sources before just presuming that your college roomate, Julian Sanger’s, account of Lessig’s views was correct, and mine wrong, you would never have authored a post asserting this. But you could not be bothered.

Check the source materials, Tim. I characterized them correctly. Julian got them wrong. If this is news to you, that is because you chose to sling very serious allegations without confirming their validity. I thus suggest, for the last time, that you belatedly check the relevant source materials, and then apologize—before I lose patience with your childish antics. I take intellectual honesty far more seriously than you ever have, young man.

And I will now prove that by walking through your excuses, Timothy, and eviscerating them. And let’s be clear, Tim. Since you have again (wrongly and ignorantly) accused me of intellectual dishonesty, I presume that you will—for a change—have the guts to respond substantively to the points that follow. Your habit of intellectual cowardice is most unbecoming, Tim. I expect you to end it now and to face the consequences of your incompetent illogic.

Next, Tim, you say, “It's totally inappropriate to use brackets as a way of making an ideological point…. Tom, brackets are commonly used to either summarize a long paragraph or to make a quotation grammatical in its new context.” Your views are erroneous, Tim, but that is why I don’t pay much attention to pedantic lectures on English usage delivered by schoolboys.

To be clear, Tim, I was making “an idealogical point” only in the sense that I was, indeed, mocking your pretentious, misleading rhetoric. But I poked fun at you within the rules of usage. Consequently, you have responded by picking a really stupid fight that you will inevitably lose. Being arrogant, underinformed, overconfident, and unaware of standard English usage, you have stomped self-righteously into the buzzsaw.

Newsflash, Tim: brackets are also frequently used when one synonym can be fairly substituted for another. I would prove this, Tim, but you are so familiar with this principle that you accept it automatically when doing so does not—directly—make you look stupid. For example, I quoted Milton Friedman, for the following proposition: “[Copyrights and Patents] are different, because they can equally be regarded 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 piece of land defined and enforced by the government.”

Tim, were you the sort that bothered to check source materials, you would have known that the bracketed text was synonymous with the actual text. In the actual text, Friedman used a pronoun, but its antecedent was “copyrights and patents.” Are you now suggesting that this usage was improper, or that Milton Friedman and I just do not understand the “idealogical” difference between “monopoly rights” and “property rights”? A usage is not “idealogical” Tim, just because you pretend that it is. If the terms “property right” and “monopoly right” are as interchangeable as Milton Friedman suggests, then no wrong was done to you—I simply made fun of your trite rhetoric.

Next, Tim, you try to excuse your trite rhetoric as follows: “I choose to call copyright a monopoly right to emphasize that it is a statutory right created by Congress. This is very different from ordinary property rights, which tend to emerge spontaneously and are only recognized and secured by government after they are recognized by civil society.” Tim, this pathetic “answer” is nonresponsive—it’s an excuse, not an explanation.

Tim, had you claimed that “copyrights” were “statutory rights,” we would never have had this debate. Do you really claim that all such “statutory rights” are “monopoly rights”? (And before you answer, Tim, think about net neutrality.)

Of course you don’t—that’s ridiculous. For example, in U.S. law, those awful “statutory” copyrights actually predated the Constitution in 12 of the 13 orginial States; they appeared in in the original constitution in 1789; and they appeared in federal statutes in 1790—the same year as the Bill of Rights. In effect, Tim, your implausible excuses force you to argue that any “right” merely recognized, but not implemented, by the federal Constitution in 1789 is a mere “statutory” right—and thus, for some inexplicable reason, a “monopoly right.” That’s absurd.

Cut the nonsense, Tim: you used a misleading Scary Synonym because you arrogantly presumed that your readers could not pace your oh-so-clever rhetoric. I called you on it, and as a result, you now look disingenuous and silly. In time, greater maturity and more serious study of the subject matter will work their usual magic, and you may someday perform a socially useful function by doing the same to me. This is why the marketplace of ideas eventually produces good results: It punishes those who overreach or mislead. Welcome to the market, Timmy.

So spare me your quivering lip and implausible excuses: this is not “me” being mean to “you,” Timothy. It’s “market discipline” operating within the “marketplace of ideas.” If you find its effects unpleasant, well, that is the point: as soon as you stop overreaching by calling copyrights “monopoly rights”—and by pretending that Eben Moglin is a hero for libertarians—this will stop happening.

Game over, Tim. And if you think otherwise, then stop running away, turn and face me, and answer the legitimate, fair questions that you continue to dodge: “Are you asserting that the mere possession of a copyright inevitably confers market power within the meaning of the law of antitrust? Are you going farther, and asserting that the mere possession of a copyright inevitably results in the abuse of market power within the meaning of the law of antitrust?”

And don’t try to pretend, Tim, that you can refuse to answer these questions because you are just too pure, too perfect, and too important to be bothered. You have showed your true colors too clearly: everyone will realize why you are—again—scampering like a baby bunny for the safety of your burrow. So if you chose to keep denying reality, Tim, then stop running away and turn and face the consequences of your own trite rhetoric. Granted, they stink, but that was your choice, not mine.

Finally, Tim, you made the following silly claim:

“[Y]ou totally missed my point with regard to Stallman and Congress. The point of the GPL is to ensure that downstream distributors of GPLed software do not use copyright or patent laws to restrict users' freedom to use that software. In a world without copyright, the GPL would likely not be needed because users would have that freedom by default. Certainly, in a world without copyright Stallman wouldn't need Congress's help to create his software.”

Don’t lie to your readers, Tim. That was NOT the point of your original post—and you know it, young man. I would quote your own words back to you, but your run-and-rethread tactics make that inconvenient, and I would encourage such tactics by compensating for the inconveniences that they impose upon your readers. Run-and-rethread has lost its utility, Tim.

Indeed, your whole point is absurd. You are claiming that but for copyrights, Stallman would have gleefully put his code into the public domain and let others recompile it into object code that they could then sell. What baloney.

Stallman—fairly, in my opinion, but not in yours—wanted to ensure that others could use the results of HIS labors ONLY if they were willing to be bound by the TBD-version of “freedom” that Stallman articulates in the current version of the GPL. Had copyrights not existed, Stallman would have needed to get Congress to enact legislation to achieve this result. I know this. You know this. Stop assuming that your readers are too dull to know this, Tim. –Tom

Tim, I must make three points in reply.

First, you said, “I think that we agree that Stallman and company are engaged in an entrepreneurial venture to build an alternative to proprietary software….” I cannot agree that Stallman and Moglen are engaged in an “entrepreneurial venture….” Nor do I understand why you would use that term. Perhaps your dictionary defines “entrepreneurial venture” as “an activity intended to makea socially productive activity so unrenumerative that it must be supported and subsidized by federal taxation.” Or perhaps you have, (again, see, e.g., your post Selective Quotation in the Sydnor Paper), failed to review the relevant source material, like Stallman’s early proposals for the long-term viability of GPL-software development. In either case, while I agree that the GPL has supported some “entrepreneurial ventures,” that was the result of accident, not the designs of FSF.

Second, you say, “I think that we agree that… we should wait and see how well the [GPL] experiment works.” I do agree with that statement, but I also think that it completely contradicts the message of your original post.

For example, in that post, you noted, (correctly) that Stallman did not have to run to Congress to get permission to create useful software and release under the GPL. One difference between us may be that I may better understand just how critical that freedom—which was conferred upon Stallman by copyright law—really was.

For example, suppose that Stallman really did have to run to Congress and get legislation enacted in order to be able to create software to be released under the GPL. And suppose also that Stallman had to get such legislation introduced and enacted when I happened to be, as I once was, the Counsel for Intellectual Property and Technology to the Chairman of the Senate Committee on the Judiciary.

I would have taken the meeting, but its outcome would have been irrelevant. Odds are, I would have simply dismissed Stallman as a crank and pursued the matter no further. But even if I somehow caught GPL-fever upon first exposure, it seems almost incomprehensible that anyone could have been convinced to expend the political capital required to enact the “GPL Act of 2004” in the face of the predictable opposition.

So far, events suggest that either result would have been destructive. You are right, Tim, I am not “optimistic” about the future of the GPL: I think that many developers fail to realize that they owe Linus Torvalds for more than an OS kernel; he has also deferred some of the more destructive manifestations of Stallman and Moglen’s ideology. Someday, that dam may break. But regardless of whether or when it will, no developer’s ability to do what they think best with their work should turn upon whether it meets with my personal approval.

And that’s why I tend to believe—strongly—that copyright laws ought to be designed to empower and permit, as a practical matter, all business models that could be socially productive. Those who favor narrowing the range of business models permitted by copyrights seem endowed with a faith in their own powers of prediction that I cannot share.

Third, and finally, we get to the fun part. You said, “I found it most striking that you felt it was appropriate to alter my words (replacing “monopoly” with “property” and then put the results in quotation marks and [indignant sniffle] attribute them to me.” Note that in the preceding sentence, as in my prior sentence “[property]”, I have used brackets to indicate where I am characterizing, rather than quoting, your words.

This practice is actually quite common. Here, I used it to very gently critique your implied insult to the intelligence of TLF readers. Since you missed the point, I will be more blunt.

Tim, I replaced your term “monopoly” with my term “[property]” because I assume that anyone who calls himself a “libertarian” knows that “monopoly right,” “property right,” and “exclusive right” are generally just three different ways to say the same thing. But no need to take my word on this. Let’s hear—not from Stallman or Moglen—but from an actual libertarian, Milton Friedman, from his book Capitalism and Freedom:

“[Copyrights and Patents] are different, because they can equally be regarded 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 piece of land defined and enforced by the government.”

So, Tim, why do you insist upon using the term “monopoly right”? Frankly, I suspect that you do so in the hope that it will mislead some TLF readers who are just not quite as clever as you.

You and I both know that most people, as a result of the term’s specialized meaning within antitrust law, associate “monopoly” with “market power” or even “unreasonable abuse of market power.” Consequently, most who use the term “monopoly right” when discussing copyrights do so because they hope to confuse and mislead the gullible through this oh-so-clever rhetorical device that makes the concept of a “property right” sound sinister and scary.

Granted, Tim, you may using the term “monopoly right” because you genuinely believe that all copyrights act as economic monopolies within the meaning of antitrust law. So tell me, Tim: Are you asserting that the mere possession of a copyright inevitably confers market power within the meaning of the law of antitrust? Are you going farther, and asserting that the mere possession of a copyright inevitably results in the abuse of market power within the meaning of the law of antitrust?

These are not rhetorical questions, Tim: If you can, you need to explain your use of this Scary Synonym. And if you insist on adopting the fiction that copyrights are not really “property rights,” (and I advise you to check your sources before you do) then please be so kind as to either concoct some more neutral alternative, or adopt one of those already concocted by others.

But if you insist upon rhetorical overreach, then why not go whole hog and adopt the Free-Culture-Movement practice of inserting the term “monopoly” into a new acronym that spells out the name of a mythical monster. My personal favorites are G.O.L.E.Ms. (Government-Originated Legally-Imposed Monopolies) and I.M.Ps. (Imposed Monopoly Privileges). These will really scare the dullards, if not the readers of TLF.

Having explained why I used the brackets, let me admit that as a general matter, I think this sort of rhetoric unpersuasive and ineffective. As a result, if the term “monopoly right” is important to you, Tim, I will faithfully reproduce it when quoting you in the future. Unless, that is, I decide to re-make the points set out above. --Tom

Tim, I realize that it is unlikely that anyone will be reading comments in this thread. After all, you have (again) created a new thread on the same topic when you were getting killed on the merits in the comments on this thread. But just in case, I will cross-post my comments here.

And again, I take great comfort in the company you are keeping in order to find support for your views. In any case, there are profound flaws in the arguments that you are making. Specifically, your premise is false, and your conclusions do not follow.

You say, “In a world where some of the most popular websites on Earth are built on the LAMP stack, it’s awfully hard to argue with a straight face that creativity will only happen if creators are given [property] rights in their works.” Actually, it’s really easy.

The LAMP stack consists of creativity that happened because creators were given property rights in their words. The works in that stack are copyrighted, their creators retain property/monopoly rights in them and they enforce them. FSF, in particular, aggressively enforces its copyrights in both GPL software and in the GPL itself. To be sure, developers of FOSS software may exercise their property rights differently than some developers of proprietary software, but the copyright system was intended to provide them with the freedom to do so.

Indeed, that freedom is why Stallman never had to “run to Congress seeking legal changes” in order to create his compiler or the GPL: copyright laws were intended to let creators keep their creations secret, to sell copies for money, to cross-subsidize their production, etc., all the way down to dedicating them irrevocably and freely, to the public domain. As a result, copyright law requires creators to compete not only to create works, but also to administer and exercise their rights in those works. I think that you are mistaken to call Stallman’s retroactively imposed, TBD-vision of “freedom” a “utopia,” but existing law will empower and enforce at least most of it.

Nor would your conclusions follow even were your premise valid. You seem to conclude that the “utopia” being built over at the FSF proves that copyright owners do not need any exclusive rights except those utilized in the GPL. For two reasons, that is wrong.

First, even in the narrow context of application software development, Stallman and Moglen’s “utopia that’s being built has we speak” has hardly swept the field. Developers of proprietary software that license copies for cash are thriving. For example, Adobe’s Photoshop is doing just fine against its FOSS alternative, The GIMP. Why would we settle this ongoing and robust debate about application-software-development methods via Eben Moglen’s “bracing” podcast, rather than market competition between creators who made different choices about how to exercise their talents and administer the resulting rights?

Second, the fact that the FOSS model still seems viable in the context of application software in no way implies that the same model will work for all the different types of works and industries encompassed by copyrights. Nor does it mean that this one model would remain viable and appropriate over time.

And that latter point is critical: what works today may not work tomorrow. Were we having this debate in the 1970s, I would be hearing wonderful tales about how ingenious it was for newspapers to use classified advertising to cross-subsidize the production of local news. And that scheme was indeed ingenious—for a while.

In conclusion, Stallman and Moglen surely do believe that “utopia” is being built right before our eyes at FSF. If so, that’s great: their “utopia” is being built by the “monopoly” provided by existing copyright law.

But utopia has been built and rebuilt many times by many sincere people. Someone is always building or rebuilding New Harmony, and it usually even works—for a while. And that is why I favor copyright laws that provide creators with a broad array of practically enforceable options for exploiting the results of their own labor, including selling copies to businesses, selling copies to consumers, licensing copies for cash, cross-subsidizing, FOSS, etc.

But I do not favor the approach championed by Messrs. Moglin and Stallman. They are all too eager to deny other creators the rights to choose and the flexibility that made the FSF vision of “utopia” possible. --Tom

Tim, gosh, what a shock, you have again created a new thread on the same topic when you were getting killed on the merits in the comments on the last thread. And again, I take great comfort in the company you are keeping in order to find support for your views. In any case, there are profound flaws in the arguments that you are making. Specifically, your premise is false, and your conclusions do not follow.

You say, “In a world where some of the most popular websites on Earth are built on the LAMP stack, it’s awfully hard to argue with a straight face that creativity will only happen if creators are given [property] rights in their works.” Actually, it’s really easy.

The LAMP stack consists of creativity that happened because creators were given property rights in their words. The works in that stack are copyrighted, their creators retain property/monopoly rights in them and they enforce them. FSF, in particular, aggressively enforces its copyrights in both GPL software and in the GPL itself. To be sure, developers of FOSS software may exercise their property rights differently than some developers of proprietary software, but the copyright system was intended to provide them with the freedom to do so.

Indeed, that freedom is why Stallman never had to “run to Congress seeking legal changes” in order to create his compiler or the GPL: copyright laws were intended to let creators keep their creations secret, to sell copies for money, to cross-subsidize their production, etc., all the way down to dedicating them irrevocably and freely, to the public domain. As a result, copyright law requires creators to compete not only to create works, but also to administer and exercise their rights in those works. I think that you are mistaken to call Stallman’s retroactively imposed, TBD-vision of “freedom” a “utopia,” but existing law will empower and enforce at least most of it.

Nor would your conclusions follow even were your premise valid. You seem to conclude that the “utopia” being built over at the FSF proves that copyright owners do not need any exclusive rights except those utilized in the GPL. For two reasons, that is wrong.

First, even in the narrow context of application software development, Stallman and Moglen’s “utopia that’s being built has we speak” has hardly swept the field. Developers of proprietary software that license copies for cash are thriving. For example, Adobe’s Photoshop is doing just fine against its FOSS alternative, The GIMP. Why would we settle this ongoing and robust debate about application-software-development methods via Eben Moglen’s “bracing” podcast, rather than market competition between creators who made different choices about how to exercise their talents and administer the resulting rights?

Second, the fact that the FOSS model still seems viable in the context of application software in no way implies that the same model will work for all the different types of works and industries encompassed by copyrights. Nor does it mean that this one model would remain viable and appropriate over time.

And that latter point is critical: what works today may not work tomorrow. Were we having this debate in the 1970s, I would be hearing wonderful tales about how ingenious it was for newspapers to use classified advertising to cross-subsidize the production of local news. And that scheme was indeed ingenious—for a while.

In conclusion, Stallman and Moglen surely do believe that “utopia” is being built right before our eyes at FSF. If so, that’s great: their “utopia” is being built by the “monopoly” provided by existing copyright law.

But utopia has been built and rebuilt many times by many sincere people. Someone is always building or rebuilding New Harmony, and it usually even works—for a while. And that is why I favor copyright laws that provide creators with a broad array of practically enforceable options for exploiting the results of their own labor, including selling copies to businesses, selling copies to consumers, licensing copies for cash, cross-subsidizing, FOSS, etc.

But I do not favor the approach championed by Messrs. Moglin and Stallman. They are all too eager to deny other creators the rights to choose and the flexibility that made the FSF vision of “utopia” possible. --Tom

The first comment is spot-on: At least as to the United States, Canada is a net importer of expressive works with a notoriously defective media-levy system. Naturally, Messrs. Masnick and Lee declined to confront these realities.

--Tom Sydnor

Tim, I have long noted that when you get a comment that seriously challenges you, you often “respond” by generating a new post on the same subject, a tactic that disserves readers by littering this blog with duplicative threads, but lets you avoid and bury any serious challenge to your views.

Fine: if I choose to continue this debate, I will do so elsewhere. You may not like the results of that—you would probably have been better served had our debate remained in the comment section of your posts on TLF, something I would have been content to do but for your run-and-rethread tactics. But markets are a harsh mistress—they discipline our thoughts and acts by letting us make our own choices, and live with their consequences.

At any rate, I must assume that this is why you created this new thread, Tim, because the comment that you have highlighted does not “make a really good point,” it regurgitates an infantile fallacy.

The Internet does not confront us with a bipolar choice between anarchy and a police state. Indeed, that argument is not just wrong, it is a threat to freedom that would never be made by anyone familiar with human history. Sadly, through the ages, many people really have been forced to choose between authoritarianism and anarchy. Those familiar with this history know why artificially forcing this choice upon those of us lucky enough to live in 21st Century America would have predictably tragic consequences.

Indeed, even were the silly extremes that you posit the only choices compatible with a TCP/IP-based Internet, then a sensible third path forward would remain: we could choose to abandon the fatal mistakes and unacceptable costs of TCP/IP and re-engineer a means of interactive, digital communications and data exchange compatible with rational forms of human governance and consentual, bilateral exchange.

And to be clear, Tim, I am not arguing that a TCP/IP-based Internet involves “fatal mistakes and unacceptable costs.” You are. Indeed, you are using a “blog dedicated to keeping politicians' hands off the 'net” to revive the argument that Lessig used, in his 1999 book Code, to argue for government control of the Internet: Both you and Lessig argue that private property rights are now a threat to liberty because bilateral, consentual, market exchange requires means of identifying persons, and any such means will inevitably turn the Internet into a “panopticon” of pervasive government surveillance.

But again, you and Lessig draw opposed conclusions from the same premise. Lessig posits this silly, bipolar choice and argues that people must opt for authoritarianism. You posit the same choice, and argue for anarchy. Here, Lessig has the great weight of human history on his side.

Thanks again for your views. --Tom Sydnor

PS: For the benefit of TLF readers, I also reproduce, below, the comment that Tim would apparently prefer that you not see.

Tim, your characterizations of my beliefs and those of others at PFF are too obviously wrong to require any response. I do think it worth clarifying a few points, however.

I did not argue that ISPs are or should be required by law to maintain IP-address records. But the law does state that those internet access providers who wish to avail themselves of the sweeping limitations on copyrights provided by 512(a) must take a few simple measures--like having and reasonably implementing a policy of terminating repeat infringers--that cannot be taken by an access provider who cannot reliably identify anyone. The law imposes no penalty upon ISPs who fail to qualify for 512(a); it simply declines to grant them a privileged status superior to that accorded to any other class of entities or persons.

As to my claim that the London-Sire order has unfortunate implications for those seeking to enforce federal laws or rights other than copyrights, there is a difference between "making a scary argument" and "acknowledging reality."

Reality is simple: File-sharing networks are used by identity thieves, pedophiles, and terrorists. If failures to keep reliable IP-address records begin seriously compromising the investigation and prosecution of these types of users--(and, at least in the case of identity thieves and pedophiles, significant law-enforcement efforts are underway right now)--legal obligations will be imposed. ISPs have avoided that result so far, and BU could be compromising those efforts. And for what? Campus copyright piracy?

Online privacy is a tremendously important issue, and I am very glad that people like Jim Harper and Adam are thinking seriously about it. But nothing will compromise the future of privacy on the Internet more effectively than dogmatic opposition to the legitimate needs of private or governmental law enforcement. For example, in 2006, a World Bank study calculated that intangible assets accounted for about 80% of the wealth of the developed world,and that "rule of law" accounted for about 57% of that intangible capital. I think it unlikely that anyone will be convinced that "rule of law" is an asset worth surrendering.

Finally, Tim, I know that you have argued that we might not need copyrights because the costs and risks inherent in the private production of all major expression could be cross-subsidized in ways that would make them seem "free" to Internet users. Such claims are just too speculative and extreme too require much comment.

Not even Professor Lessig goes so far. To the contrary, in his books Free Culture and Remix, he speculated that if the Internet does preclude copyright enforcement, then we must resume use of the means of subsidizing the production of expression that prevailed before effectively enforceable private rights became available--taxes levied by government officials who make "unavoidably vague" judgements about the value of private expression.

So who is right, Lee or Lessig? To me, the great thing about the flexibility provided by an enforceable system of private property rights in expressive works is that it can let the producers who actually bear the relevant risks and cost sexperiment with a vast range of production methods--from profit-driven to open source. That way, the future of expression need not rest on anyone's guess about which set of speculations seem more credible at the moment.

Thanks again for the comments. --Tom Sydnor

By the way, I also agree with Don Marti: More attention needs to be paid to the vulnerability of these networks to disruption. Some of my own work focuses on this issue.

Tim, your characterizations of my beliefs and those of others at PFF are too obviously wrong to require any response. I do think it worth clarifying a few points, however.

I did not argue that ISPs are or should be required by law to maintain IP-address records. But the law does state that those internet access providers who wish to avail themselves of the sweeping limitations on copyrights provided by 512(a) must take a few simple measures--like having and reasonably implementing a policy of terminating repeat infringers--that cannot be taken by an access provider who cannot reliably identify anyone. The law imposes no penalty upon ISPs who fail to qualify for 512(a); it simply declines to grant them a privileged status superior to that accorded to any other class of entities or persons.

As to my claim that the London-Sire order has unfortunate implications for those seeking to enforce federal laws or rights other than copyrights, there is a difference between "making a scary argument" and "acknowledging reality."

Reality is simple: File-sharing networks are used by identity thieves, pedophiles, and terrorists. If failures to keep reliable IP-address records begin seriously compromising the investigation and prosecution of these types of users--(and, at least in the case of identity thieves and pedophiles, significant law-enforcement efforts are underway right now)--legal obligations will be imposed. ISPs have avoided that result so far, and BU could be compromising those efforts. And for what? Campus copyright piracy?

Online privacy is a tremendously important issue, and I am very glad that people like Jim Harper and Adam are thinking seriously about it. But nothing will compromise the future of privacy on the Internet more effectively than dogmatic opposition to the legitimate needs of private or governmental law enforcement. For example, in 2006, a World Bank study calculated that intangible assets accounted for about 80% of the wealth of the developed world,and that "rule of law" accounted for about 57% of that intangible capital. I think it unlikely that anyone will be convinced that "rule of law" is an asset worth surrendering.

Finally, Tim, I know that you have argued that we might not need copyrights because the costs and risks inherent in the private production of all major expression could be cross-subsidized in ways that would make them seem "free" to Internet users. Such claims are just too speculative and extreme too require much comment.

Not even Professor Lessig goes so far. To the contrary, in his books Free Culture and Remix, he speculated that if the Internet does preclude copyright enforcement, then we must resume use of the means of subsidizing the production of expression that prevailed before effectively enforceable private rights became available--taxes levied by government officials who make "unavoidably vague" judgements about the value of private expression.

So who is right, Lee or Lessig? To me, the great thing about the flexibility provided by an enforceable system of private property rights in expressive works is that it can let the producers who actually bear the relevant risks and cost sexperiment with a vast range of production methods--from profit-driven to open source. That way, the future of expression need not rest on anyone's guess about which set of speculations seem more credible at the moment.

Thanks again for the comments. --Tom Sydnor

By the way, I also agree with Don Marti: More attention needs to be paid to the vulnerability of these networks to disruption. Some of my own work focuses on this issue.

Hi, Tim.

Well, congratulations to both you and Adam for trying to discuss this issue rationally: For reasons that I do not purport to understand, media concentration/consolidation is one of the few issues that makes me grateful for the relative lack of strongly held opinions about copyrights, patents and trademarks. By comparison, even debates about DRM tend to look unpredictable, polite, and characterized by rampant moderation.

--Tom

Tim, you and Ronald Reagan seem to disagree about the relationship between intellectual-property protections and trade. The following Legislative Message accompanied his 1987 State of the Union Address: "The President will propose reforms to better protect America's inventive genius and, in particular, to make the way other countries treat intellectual property a major plank in trade talks."

I also cannot agree with the following claim: “If you look at actual trade agreements, you find that most of the “intellectual property” provisions have little to do with preventing “theft” of copyrights and patents and more to do with coercing other countries to adopt our particular copyright rules. For example, many recent “free trade” agreements have included provisions requiring our trading partners to enact laws analogous to the DMCA.” I have looked at actual trade agreements, and they do not seem to support this claim.

For example, by my rough count, the IPR Chapter of the US-Bahrain FTA contains about 88 agreements related to the protection of intellectual property rights. 15 of those 88 agreements relate specifically to copyrights, related rights, or both. 2 of those 88 agreements relate more specifically to DMCA-like protections. (The count rises to 3 if the DMCA’s limitations on the potential infringement liability of ISPs count as “bad policy for the United States.”). The FTA also contains 15 agreements relating to trademarks and domain names, and 15 related to patents and data-protection. The remaining 43 agreements relate more generally to matters like enforcement, border protections, etc.—measures that often do deal rather directly with efforts to “prevent ‘theft’ of copyrights and patents.” In short, copyright generally and the DMCA in particular, look more like an important, but not dominant, component of the IPR-related provisions of the US-Bahrain FTA.

More generally, I do not see anything particularly unusual about the idea that substantive harmonization of intellectual property protections can facilitate protection of the rights themselves and promote trade. Those ideas seem to underlie even 19th Century agreements like the Berne and Paris Conventions.

I'll have to take a bye for now on your comments related more specifically to pharmaceutals and patents: I agree with some of your points and disagree with others, but those issues bear more discussion than I can fairly give them at the moment. --Tom

Tim/Mike, I disagree. With all due respect, this dispute arose from Mike's attempt to conflate two utterly dissimilar matters. Mike--displaying his usual capacity for judgment--tried to claim that anyone who favored deregulation in the United States should embrace Lessig's bizarre claims about the "effective freedom" in communist Vietnam. I think that is absurd.

Is the U.S. too regulated? Yes. On that we agree. Indeed, we agree about that and many other things, including 1)that Lessig's 1999 and 2006 books are horrendous; 2)that the Fisher scheme is a nightmare, and 3)that only a fool or a "useful idiot" would use the term "bland communism" to describe the governance of the Soviet Union and Eastern Europe from 1930 to 1991.

Nevertheless, we do seem to disagree about the following question: "Can we, in 21st Century America, learn anything useful about how the U.S. is too regulated, why it is too regulated, or how to improve it from Lessig's boat-people-refuted claims about the "effective freedom" accorded to the Vietnamese who manage to avoid crossing the government of their failing, communist, totalitarian state?"

If Mike feels that this sort of nightmare illuminates some aspect of “the problems with U.S. regulations,” well, I do not. That is the only point that I am trying to make. Good night. --Tom

Mike, here is what you said: "It’s showing the problems with US regulations, something I would think you would endorse." To avoid any further confusion, let me be clear that if I interpret the antecedent correctly, then "It's" means roughly, "Lessig's account of 'effective freedom' in communist Vietnam."

So I interpreted you to be saying something like, "["Lessig's account of 'effective freedom' in communist Vietnam is"] showing the problems with US regulations, something I would think you would endorse."

My point was simple: If you think that I would "endorse" that statement, then you are wrong. To the contrary, I find that statement morally abhorrent and insulting.

We are way far from perfect here, but I think that some credit is due. Consequently, I see nothing that we can or should learn from the "effective freedom" accorded to those people who manage to avoid crossing the government of their failing, communist, totalitarian state. That nightmare does not show me anything about "the problems with US regulations."

And by the way, remember that you are talking about a statement taken from the book Code--one that both Tim and I agree is a debacle. No matter how you spin it, reducing regulation of the Internet in the United States is not exactly the central thesis of Code--quite the opposite.



Perhap

Tim and Mike,

OK, I am now experiencing some [Send]er’s regret. For whatever it is worth, I will thus try to reformulate my last post.

As noted in my paper, I have no inherent disrespect for people who simply disagree with me about the incidents of, or even necessity for, copyrights. I agree that there are libertarian, conservative, and liberal traditions that disagree with my views on these matters. Hayek, for example, explicitly questions both corporate law and patents.

But these disagreements do not answer the question, “Should libertarian/conservative/liberal copyright skeptics consider Lessig to be a part of their tradition?” Here, my answer is, “No.” I think that he is something very different—a point that both he and his supporters have made. For example, Lessig has now published two books containing a chapter entitled, “What [‘a smart libertarian’] Doesn’t Get.”

Consequently, Mike and Tim, we are disagreeing vigorously not because I have no respect for your views generally, but because I reject views expressed by Lessig. And so do you, at least in part: We disagree only about how much of his “thought” is wrong-headed.

As to the particular question of Lessig’s account of communist Vietnam, I think that we have exhausted that topic. While it appears that you two disagree, I still think that I could reasonably find there something sufficiently troubling to be worthy of note.

I simply reject claims that communist Vietnam provided any form of “effective freedom” that might reasonably be deemed relevant to U.S. technology policy. I do not think that this opinion is particularly extreme or radical. Nor do I think that the Vietnam episode is the only one in which Lessig might fairly be seen to be offering an unrealistically kind characterization of past collectivist states.

Those are my views. Thanks again. --Tom

Tim, I certainly agree that this site has an excess of threads on this topic. Perhaps they should be combined so that interested parties can more easily follow the complete debate and (most) others can avoid it. I lack the power to do that, but would be happy if it was done. My substantive response follows.

Tim, I agree that scholars have an obligation to represent their opponents' viewpoints fairly, and an obligation to avoid pedantry. I think that I have observed both obligations while making my point: You cannot fairly compare apples to oranges, and comparing communist Vietnam to the United States is apples-to-oranges.

Mike stated--clearly--that he sees Lessig as making some important point about relative amount of "effective freedom" enjoyed by the citizens of communist Vietnam versus the that in the United States. Then, in his usual drive-the-bus-off-the-cliff style, Mike chose to push the point even farther than Lessig by claiming that Lessig was thus “showing the problems with US regulations, something I would think you would endorse.”

I responded by noting that I do not "endorse" anyone who lauds the deregulatory effects of terror. Granted, I agree that lawless totalitarian states that quasi-randomly execute people and punish speech will have less need to “regulate” than representative democracies that observe the rule of law. But I hope that grim fact never becomes relevant to the administration of technology policy in America. Indeed, I raised this very issue with Mike:

“Fine. If you really think that, Mike, then put your money where your mouth is: Have the correctly guided, intellectually honest folks at TechDirt file comments at OMB in which you laud the potentially deregulatory effects of quasi-random executions and suppressing poetry."

"But, Mike, even I have enough faith in you to know that you would never do such a thing. That would be nuts. So my question is this: Why is the assertion that you claim Lessig made in CODE any better?”

At the end of the day, Tim, I think that you are becoming upset because you are trying to defend Lessig’s bizarre claim that citizens in the communist Vietnam of the early 1990s enjoyed some sort of “effective freedom” relevant to technology policy in America. I understand that this is painful and unrewarding, and I hope that you and Mike will chose to extricate yourself from this nightmare by admitting that someone who does not share your views could reasonably conclude that it was gratuitous and ugly for Lessig to laud the “effective freedom” provided by Communist Vietnam and “NamNet.”

If you can admit that, then this is just another point in my paper as to which we agree.

That said, I will, yet again, reiterate, “I think that we will have to agree to disagree about Lessig’s account of Vietnam. So let’s move on to Lessig characterizing the reign of Stalin as ‘bland communism.’ How do you rationalize that?” –Tom.

NB: in order to make it easier for other to see whether I have misrepresented Mike’s views, I have reproduced, below, my post to which Mike responded, Mike’s response, and my reply. Thanks again for the comments. –Tom.

1. Posted by: Tom Sydnor - 04/30/2008

Hi, Tim:
Well, we are going to have to disagree about this. No amount of re-reading lets me see “an interesting point about the difference between de facto and de jure legal regimes.” All I see is grotesque sophistry: Lessig is trying to transmogrify the very worst aspect of communism—its deliberate use of terror—into a cheery form of “effective freedom.”

“De jure” versus “de facto”? There is no “de jure” in a totalitarian state. See LESZEK KOLAKOWSKI, MAIN CURRENTS OF MARXISM 1213 (2005) (“law, in the proper sense, can be said to exist only if a citizen can take legal action against the state organs and have a chance of winning”). And communist Vietnam was no exception: “As in Beijing, people were found guilty simply because they had been accused by the Party, which never made mistakes. Therefore the best response was often to do what was expected of you: ‘It was better to have killed your father and mother and admitted it than to say nothing and to have done nothing wrong.’” COURTOIS, ET AL., THE BLACK BOOK OF COMMUNISM 569 (Harvard U. Press 1999).

In short, all was “de facto”: The truth was what the Party told you and the law was what the Party chose to inflict upon you: “Totalitarian law had to be vague, so that its application might hinge upon the arbitrary and changing decisions of the executive authorities, and so that each citizen could be considered a criminal whenever these authorities chose so to consider him.” LESZEK KOLAKOWSKI, MY CORRECT VIEWS ON EVERYTHING 32 (2005).

Consequently, the non-law did not have to be “inflicted” on everyone: For example, the executions during Vietnam’s version of Stalin’s purges are estimated at about 50,000, or 0.3% to 0.4% of the population. See BLACK BOOK at 569-70. That sufficed to deliver the Party’s message: “If you cheer like a good Comrade even as the infrastructure crumbles around you, maybe we will not make you kill your parents.”

And when that message was forgotten—for example, when “intellectuals” distributed a poem that mocked the Party censor—they were “re-educated.” See id. at 570-71. Indeed, they were re-educated, as Lessig might say, “quite forcefully.”

This terror was designed—was intended—to make communism, “an extraordinary form of slavery: slavery without masters.” MY CORRECT VIEWS at 30. In other words, to make a nation of people so afraid of incurring arbitrary terror that they would walk uncomplaining, through the ruins of their infrastructure, in the hope that the very government that was impoverishing them might chose to leave them be.

Oceania’s slogans cannot be improved by re-arranging their words. Is Freedom Slavery? No. Is [Extraordinary] Slavery [Effective] Freedom? No. It is not.

Finally, remember that I do not believe that Lessig or his buddies are really true communists or socialists. (Indeed, they would hardly be dangerous if they were.) But I do think that Lessig’s words, taken together, betray him for what I suspect that he is: A property-hating, way-far-left collectivist who has failed to reconcile his new daydreams against the bitter lessons learned during some all-too-recent nightmares. That suspicion would persist even if Lessig “merely” tried to analogize the effects of totalitarian terror to “effective freedom.”

Thanks again for the comments. –Tom

2. Posted by: Mike Masnick - 05/01/2008

Tom,
You still seem to think that Lessig is defending the communist system in Vietnam, when that’s not what he did at all.

He very clearly was noting that *certain* regulations did not impact the people there as much as similar regulations in the US. That was based on factual observations. It wasn’t praising communism in the slightest — but pointing out how regulatory regimes in the US can impact someone’s day-to-day life quite strongly, while for certain aspects of life in Vietnam those similar regulations do not impact them. That doesn’t mean communism is good or that life is great in Vietnam. In fact, Lessig pointed out that neither point is true. But he was pointing out what the factual situation was concerning certain aspects of day-to-day life.

You don’t dispute those points — you can’t, because they’re true. You merely take those statements and pretend they’re an endorsement of communism. It’s not even remotely a defense of communism. It’s showing the problems with US regulations, something I would think you would endorse.

I’m hoping that PFF is reconsidering your future pieces based on how awful this one was. The fact that you continue to repeat the same bogus claims despite the fact you’re being called out on the *clear meaning* of almost every passage you took out of context is troublesome.

While I disagree with PFF on many things, most of the time I found the folks there to merely be intellectually misguided — not dishonest. This piece hurts the reputation of PFF and if they were smart, they’d stop this series before you do even more damage to their reputation.

3. Posted by: Tom Sydnor - 05/01/2008
Mike, since you insist on continuing this debacle, I will make three points.

First, though I think my last post probably clarified the matter for 99% of the population, I must distance myself from Mike’s claim that the admittedly deregulatory effect of terrorizing civilians “is something I would think you would endorse.” I don’t. A deregulatory representative democracy is good. A totalitarian state that need not regulate at all because people fear to offend it (even as it lets the infrastructure collapse), is bad. Really bad. Hundreds of thousands of fleeing boat-people bad. This is the point that Mike and Lessig seem to miss.

Second, let’s assume, arguendo, that Mike really does think that Lessig made an insightful, important observation about the beneficial deregulatory effects of terror.

Fine. If you really think that, Mike, then put your money where your mouth is: Have the correctly guided, intellectually honest folks at TechDirt file comments at OMB in which you laud the potentially deregulatory effects of quasi-random executions and suppressing poetry.

But, Mike, even I have enough faith in you to know that you would never do such a thing. That would be nuts. So my question is this: Why is the assertion that you claim Lessig made in Code any better?

Third, I think that you mistake my views on Lessig. I said the following in my paper: “To be clear, I do not think that Lessig, Fisher, or other Free-Culture-Movement academics and interest groups are literally ‘communists’ or ‘socialists.…’ But they do still display the flaws that made communists and socialists dangerous to themselves and others: Inherent distrust of and contempt for the utility of bilateral private exchange conjoined with boundless, unshakeable faith in the potential wisdom, foresight, and benevolence of vast and coercive governmental power.”

That is why I cannot help but find something telling in Lessig’s attempts to recast the inhibitory effects of terror as a cheery form “effective freedom.”

But as I said at the start of my last post, I think we will have to agree to disagree about Lessig’s account of Vietnam. So let’s move on to Lessig characterizing the reign of Stalin as “bland communism.” How do you rationalize that? –Tom

Tim, I certainly agree that this site has an excess of threads on this topic. Perhaps they should be combined so that interested parties can more easily follow the complete debate and (most) others can avoid it. I lack the power to do that, but would be happy if it was done. My substantive response follows.

Tim, I agree that scholars have an obligation to represent their opponents' viewpoints fairly, and an obligation to avoid pedantry. I think that I have observed both obligations while making my point: You cannot fairly compare apples to oranges, and comparing communist Vietnam to the United States is apples-to-oranges.

Mike stated--in no uncertain terms--that he sees Lessig as making some lucid point about the relative amount of "effective freedom" enjoyed by the citizens of communist Vietnam versus the United States. Then, in his usual drive-the-bus-off-the-cliff style, Mike chose to push the point even farther than Lessig had dared by claiming that Lessig was thus “showing the problems with US regulations, something I would think you would endorse.”

I responded by noting that if Lessig was making such a claim, I certainly did not endorse it. Granted, I agree that lawless totalitarian states that quasi-randomly execute people and punish speech will have less need to “regulate” than representative democracies that observe the rule of law. But I do not see why the "deregulatory" effects of totalitarianism could be relevant to the rational administration of technology policy in America. I raised this very issue with Mike:

“Fine. If you really think that, Mike, then put your money where your mouth is: Have the correctly guided, intellectually honest folks at TechDirt file comments at OMB in which you laud the potentially deregulatory effects of quasi-random executions and suppressing poetry."

"But, Mike, even I have enough faith in you to know that you would never do such a thing. That would be nuts. So my question is this: Why is the assertion that you claim Lessig made in CODE any better?”

At the end of the day, Tim, I think that you are becoming upset because you are trying to defend Lessig’s bizarre claim that citizens in the communist Vietnam of the early 1990s enjoyed some sort of “effective freedom” relevant to technology policy in 21st Century America. I understand that this is painful and unrewarding, and I hope that you and Mike will chose to extricate yourself from this nightmare by admitting that someone who does not share your views could reasonably conclude that it was gratuitous and ugly for Lessig to laud the “effective freedom” provided by Communist Vietnam and “NamNet."

If you can admit that, then this is just another point in my paper as to which we agree.

That said, I will, yet again, reiterate, “I think that we will have to agree to disagree about Lessig’s account of Vietnam. So let’s move on to Lessig characterizing the reign of Stalin as ‘bland communism.’ How do you rationalize that?” –Tom.

NB: in order to make it easier for other to see whether I have misrepresented Mike’s views, I have reproduced, below, my post to which Mike responded, Mike’s response, and my reply. Thanks again for the comments. –Tom.

1. Posted by: Tom Sydnor - 04/30/2008
Hi, Tim:
Well, we are going to have to disagree about this. No amount of re-reading lets me see “an interesting point about the difference between de facto and de jure legal regimes.” All I see is grotesque sophistry: Lessig is trying to transmogrify the very worst aspect of communism—its deliberate use of terror—into a cheery form of “effective freedom.”

“De jure” versus “de facto”? There is no “de jure” in a totalitarian state. See LESZEK KOLAKOWSKI, MAIN CURRENTS OF MARXISM 1213 (2005) (“law, in the proper sense, can be said to exist only if a citizen can take legal action against the state organs and have a chance of winning”). And communist Vietnam was no exception: “As in Beijing, people were found guilty simply because they had been accused by the Party, which never made mistakes. Therefore the best response was often to do what was expected of you: ‘It was better to have killed your father and mother and admitted it than to say nothing and to have done nothing wrong.’” COURTOIS, ET AL., THE BLACK BOOK OF COMMUNISM 569 (Harvard U. Press 1999).

In short, all was “de facto”: The truth was what the Party told you and the law was what the Party chose to inflict upon you: “Totalitarian law had to be vague, so that its application might hinge upon the arbitrary and changing decisions of the executive authorities, and so that each citizen could be considered a criminal whenever these authorities chose so to consider him.” LESZEK KOLAKOWSKI, MY CORRECT VIEWS ON EVERYTHING 32 (2005).

Consequently, the non-law did not have to be “inflicted” on everyone: For example, the executions during Vietnam’s version of Stalin’s purges are estimated at about 50,000, or 0.3% to 0.4% of the population. See BLACK BOOK at 569-70. That sufficed to deliver the Party’s message: “If you cheer like a good Comrade even as the infrastructure crumbles around you, maybe we will not make you kill your parents.”

And when that message was forgotten—for example, when “intellectuals” distributed a poem that mocked the Party censor—they were “re-educated.” See id. at 570-71. Indeed, they were re-educated, as Lessig might say, “quite forcefully.”

This terror was designed—was intended—to make communism, “an extraordinary form of slavery: slavery without masters.” MY CORRECT VIEWS at 30. In other words, to make a nation of people so afraid of incurring arbitrary terror that they would walk uncomplaining, through the ruins of their infrastructure, in the hope that the very government that was impoverishing them might chose to leave them be.

Oceania’s slogans cannot be improved by re-arranging their words. Is Freedom Slavery? No. Is [Extraordinary] Slavery [Effective] Freedom? No. It is not.

Finally, remember that I do not believe that Lessig or his buddies are really true communists or socialists. (Indeed, they would hardly be dangerous if they were.) But I do think that Lessig’s words, taken together, betray him for what I suspect that he is: A property-hating, way-far-left collectivist who has failed to reconcile his new daydreams against the bitter lessons learned during some all-too-recent nightmares. That suspicion would persist even if Lessig “merely” tried to analogize the effects of totalitarian terror to “effective freedom.”

Thanks again for the comments. –Tom

2. Posted by: Mike Masnick - 05/01/2008
Tom,
You still seem to think that Lessig is defending the communist system in Vietnam, when that’s not what he did at all.

He very clearly was noting that *certain* regulations did not impact the people there as much as similar regulations in the US. That was based on factual observations. It wasn’t praising communism in the slightest — but pointing out how regulatory regimes in the US can impact someone’s day-to-day life quite strongly, while for certain aspects of life in Vietnam those similar regulations do not impact them. That doesn’t mean communism is good or that life is great in Vietnam. In fact, Lessig pointed out that neither point is true. But he was pointing out what the factual situation was concerning certain aspects of day-to-day life.

You don’t dispute those points — you can’t, because they’re true. You merely take those statements and pretend they’re an endorsement of communism. It’s not even remotely a defense of communism. It’s showing the problems with US regulations, something I would think you would endorse.

I’m hoping that PFF is reconsidering your future pieces based on how awful this one was. The fact that you continue to repeat the same bogus claims despite the fact you’re being called out on the *clear meaning* of almost every passage you took out of context is troublesome.

While I disagree with PFF on many things, most of the time I found the folks there to merely be intellectually misguided — not dishonest. This piece hurts the reputation of PFF and if they were smart, they’d stop this series before you do even more damage to their reputation.

3. Posted by: Tom Sydnor - 05/01/2008
Mike, since you insist on continuing this debacle, I will make three points.

First, though I think my last post probably clarified the matter for 99% of the population, I must distance myself from Mike’s claim that the admittedly deregulatory effect of terrorizing civilians “is something I would think you would endorse.” I don’t. A deregulatory representative democracy is good. A totalitarian state that need not regulate at all because people fear to offend it (even as it lets the infrastructure collapse), is bad. Really bad. Hundreds of thousands of fleeing boat-people bad. This is the point that Mike and Lessig seem to miss.

Second, let’s assume, arguendo, that Mike really does think that Lessig made an insightful, important observation about the beneficial deregulatory effects of terror. Fine. If you really think that, Mike, then put your money where your mouth is: Have the correctly guided, intellectually honest folks at TechDirt file comments at OMB in which you laud the potentially deregulatory effects of quasi-random executions and suppressing poetry.

But, Mike, even I have enough faith in you to know that you would never do such a thing. That would be nuts. So my question is this: Why is the assertion that you claim Lessig made in Code any better?

Third, I think that you mistake my views on Lessig. I said the following in my paper: “To be clear, I do not think that Lessig, Fisher, or other Free-Culture-Movement academics and interest groups are literally ‘communists’ or ‘socialists.…’ But they do still display the flaws that made communists and socialists dangerous to themselves and others: Inherent distrust of and contempt for the utility of bilateral private exchange conjoined with boundless, unshakeable faith in the potential wisdom, foresight, and benevolence of vast and coercive governmental power.”

That is why I cannot help but find something telling in Lessig’s attempts to recast the inhibitory effects of terror as a cheery form “effective freedom.”

But as I said at the start of my last post, I think we will have to agree to disagree about Lessig’s account of Vietnam. So let’s move on to Lessig characterizing the reign of Stalin as “bland communism.” How do you rationalize that? –Tom

Mike, since you insist on continuing this debacle, I will make three points.

First, though I think my last post probably clarified the matter for 99% of the population, I must distance myself from Mike’s claim that the admittedly deregulatory effect of terrorizing civilians “is something I would think you would endorse.” I don’t. A deregulatory representative democracy is good. A totalitarian state that need not regulate at all because people fear to offend it (even as it lets the infrastructure collapse), is bad. Really bad. Hundreds of thousands of fleeing boat-people bad. This is the point that Mike and Lessig seem to miss.

Second, let’s assume, arguendo, that Mike really does think that Lessig made an insightful, important observation about the beneficial deregulatory effects of terror. Fine. If you really think that, Mike, then put your money where your mouth is: Have the correctly guided, intellectually honest folks at TechDirt file comments at OMB in which you laud the potentially deregulatory effects of quasi-random executions and suppressing poetry.

But, Mike, even I have enough faith in you to know that you would never do such a thing. That would be nuts. So my question is this: Why is the assertion that you claim Lessig made in Code any better?

Third, I think that you mistake my views on Lessig. I said the following in my paper: “To be clear, I do not think that Lessig, Fisher, or other Free-Culture-Movement academics and interest groups are literally ‘communists’ or ‘socialists.…’ But they do still display the flaws that made communists and socialists dangerous to themselves and others: Inherent distrust of and contempt for the utility of bilateral private exchange conjoined with boundless, unshakeable faith in the potential wisdom, foresight, and benevolence of vast and coercive governmental power.”

That is why I cannot help but find something telling in Lessig’s attempts to recast the inhibitory effects of terror as a cheery form “effective freedom.”

But as I said at the start of my last post, I think we will have to agree to disagree about Lessig’s account of Vietnam. So let’s move on to Lessig characterizing the reign of Stalin as “bland communism.” How do you explain that? --Tom

Hi, Tim:

Well, we are going to have to disagree about this. No amount of re-reading lets me see “an interesting point about the difference between de facto and de jure legal regimes.” All I see is grotesque sophistry: Lessig is trying to transmogrify the very worst aspect of communism—its deliberate use of terror—into a cheery form of “effective freedom.”

“De jure” versus “de facto”? There is no “de jure” in a totalitarian state. See LESZEK KOLAKOWSKI, MAIN CURRENTS OF MARXISM 1213 (2005) (“law, in the proper sense, can be said to exist only if a citizen can take legal action against the state organs and have a chance of winning”). And communist Vietnam was no exception: “As in Beijing, people were found guilty simply because they had been accused by the Party, which never made mistakes. Therefore the best response was often to do what was expected of you: ‘It was better to have killed your father and mother and admitted it than to say nothing and to have done nothing wrong.’” COURTOIS, ET AL., THE BLACK BOOK OF COMMUNISM 569 (Harvard U. Press 1999).

In short, all was “de facto”: The truth was what the Party told you and the law was what the Party chose to inflict upon you: “Totalitarian law had to be vague, so that its application might hinge upon the arbitrary and changing decisions of the executive authorities, and so that each citizen could be considered a criminal whenever these authorities chose so to consider him.” LESZEK KOLAKOWSKI, MY CORRECT VIEWS ON EVERYTHING 32 (2005).

Consequently, the non-law did not have to be “inflicted” on everyone: For example, the executions during Vietnam’s version of Stalin’s purges are estimated at about 50,000, or 0.3% to 0.4% of the population. See BLACK BOOK at 569-70. That sufficed to deliver the Party’s message: “If you cheer like a good Comrade even as the infrastructure crumbles around you, maybe we will not make you kill your parents.”

And when that message was forgotten—for example, when “intellectuals” distributed a poem that mocked the Party censor—they were “re-educated.” See id. at 570-71. Indeed, they were re-educated, as Lessig might say, “quite forcefully.”

This terror was designed—was intended—to make communism, “an extraordinary form of slavery: slavery without masters.” MY CORRECT VIEWS at 30. In other words, to make a nation of people so afraid of incurring arbitrary terror that they would walk uncomplaining, through the ruins of their infrastructure, in the hope that the very government that was impoverishing them might chose to leave them be.

Oceania’s slogans cannot be improved by re-arranging their words. Is Freedom Slavery? No. Is [Extraordinary] Slavery [Effective] Freedom? No. It is not.

Finally, remember that I do not believe that Lessig or his buddies are really true communists or socialists. (Indeed, they would hardly be dangerous if they were.) But I do think that Lessig’s words, taken together, betray him for what I suspect that he is: A property-hating, way-far-left collectivist who has failed to reconcile his new daydreams against the bitter lessons learned during some all-too-recent nightmares. That suspicion would persist even if Lessig “merely” tried to analogize the effects of totalitarian terror to “effective freedom.”

Thanks again for the comments. --Tom

Tim, and Julian, sorry, I missed the bit about Fisher.

Julian's point is correct, but it does not manage to distinguish Fisher from Orwell.

Julian is right: Fisher is proposing that at any given moment, monitoring would be directed at a representative sample of the population. There are many problems with Fisher's claims about how sampling could work or the size of the sample required for truly representative sampling, but I do think that Fisher is correct to think that surveillance of less than all of the population at once could provide some surrogate for popularity to replace the then-defunct price system that expired along with exclusive rights and markets.

Suffice it to say that I thought about this very issue and realized that--as the quote in my paper states--even in Orwell's Oceania, they didn't really monitor everyone all the time: "How often, or on what system, the Thought Police plugged in on any individual wire was guesswork."

So Fisher's scheme is still alot closer to Orwell than the DMCA--and that was my point. Thanks again. --Tom

Tim, and Julian, sorry, I missed the bit about Fisher. Julian's point is correct, but fails anyway.

Fisher is proposing that at any given moment, monitoring would be directed at a representative sample of the population. There are many problems with Fisher's claims about the size of the sample required for representative sampling, but I do think he is correct to think that surveillance of less than all of the population at once could provide some surrogate for popularity to replace the then-defunct price system that expired along with exclusive rights and markets.

But for now, suffice it to say that I thought about this very issue and realized that--as the quote in my paper states--even in Orwell's Oceania, they didn't really monitor everyone all the time: "How often, or on what system, the Thought Police plugged in on any individual wire was guesswork."

So Fisher's scheme is still alot closer to Orwell than the DMCA--and that was my point. Thanks again. --Tom

Tim,

Here is why I disagree with Julian.

I find it very difficult to read pages 188-189 of Code without detecting some 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. Not to mention his absurd assurance that communism in Vietnam is “of course, nothing like the communism that gave birth to the cold war.” But see COURTOIS, ET AL., THE BLACK BOOK OF COMMUNISM 565-76 (Harvard U. Press 1999) (recounting the similar programs and atrocities of Vietnamese and Chinese communism). Not to mention this: “Vietnam sets as its ideal the state in the service of the withering of the state; the United States sets as its ideal the withered state in the service of liberty.” (p. 188)

And look more closely at the context in which Lessig does all this. The central thesis of Code is that we Americans need to get our government to heavily regulate 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 and “NamNet” in order to argue 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.”

Great—the “effective freedom” to sit silently while the infrastructure collapses around you. Why would this form of “freedom” be relevant to any reasonable discussion of U.S. technology policy in the 21st Century? Nevertheless, Lessig somehow felt compelled to ignore the damningly contradictory verdict of the hundreds of thousands of boat people who were risking their lives in order to flee Vietnam’s “effective freedom” in order to sing its praises in a context in which they were completely irrelevant at best. By the 1990s, almost no one else did things like this: Even Jane Fonda had given it up.

And if the report cited in my paper failed to disclose the reality-defying absurdity of Lessig using the words “effective freedom” when discussing communist Vietnam and “NamNet,” then 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, in fact, Lessig was really praising the “effective freedom” to sit silently while the infrastructure collapses around you and the government filters the Internet. To me, the most damning part of this whole episode is the absurdity of going out of your way to praise a form of "effective freedom" that no one would or could want.

Moreover, the Vietnam episode has company that can reasonably influence the range of interpretations that one can fairly accord it. Mercifully, I noted no attempt to excuse Lessig for characterizing the reign of Stalin as “bland communism.”

So I stand my ground: Lessig has repeatedly gone out of his way—even at the cost of undermining his own regulate-the-net arguments—in order to praise, or apologize for, some of the most economically inept, politically repressive, and murderous collectivist regimes in history.

Noting that Lessig has repeatedly tried to paint smiley-faces on the ruins of the Berlin Wall was fair—and relevant. Particularly since one point of my paper was that his vision for the future of expression bears a rather disturbing resemblance to this past....

Moreover, suppose you decide to ignore the Fonda/Duranty impersonations entirely. All you are left with then is the highly regulatory thesis of Code, leading to the 2001/2002 redefinition of "free" to mean "costly" and "state-controlled, all culminating in "Free" Culture's embrace of the Fisher scheme. I am not sure that the story has improved significantly

Thanks. --Tom

Tim, thank you for the further thoughts. I’m glad that we both reject the turn-the-Internet-over-to-the-government thesis of Lessig’s first and fourth books, and I am glad that we both reject Lessig’s and Fisher’s bizarre quasi-socialist scheme for the future for expression in America.

I think we also agree that to fully engage Free Culture, I should respond to its accounts of copyrights past and present. I will do so, and I believe that I will show that they are infected by the same histrionics, disregard of history, contempt for market mechanisms, and love of collectivism that infect Code, Code v.2.0, and the Fisher scheme.

As for how central the Fisher scheme is to Lessig’s second and third books (Future of Ideas and Free Culture), I think we will have to agree to disagree for two reasons.

First, file-sharing (which Lessig also calls p2p) is, indeed, a central and recurring theme in Free Culture. Absent the Fisher scheme, none of Lessig’s other proposals address file-sharing, or, indeed, the larger—and critical—question of how copyrights should best be enforced online. In other words, even if the U.S. were to renounce membership in the World Trade Organization so it could implement Lessig’s ideas about term and formalities, the same fundamental questions about enforcement, remix, etc., would remain. Lessig describes Free Culture (p. 11) as “an effort to understand a hopelessly destructive war inspired by the technologies of the Internet but reaching far beyond its code. And by understanding this battle, it is an effort to map peace.” The Fisher scheme is the only “map” to “peace” in the book—a map made by the only person who appears to have failed to realize that Orwell’s account of Oceana was a satire.

Second, using the previously disfavored device of compulsory licensing to resolve the problems of copyrights and the Internet is an oft recurring them in both Future of Ideas and Free Culture. Here are some cites: 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. The Fisher system thus clarifies what Lessig meant the many times that he made general statements like this: “Congress should empower file sharing by recognizing a similar system of compulsory licenses,” (FOI at 255).

Finally, I do not think that Lessig is a jerk. (I met him back in 2004, and while I have since seen him come off pretty badly in public presentations, he seemed like a nice enough guy in person.). But I do think he is what I said he is: a demagogue. In other words, I think that he deliberately and relentlessly exaggerates and distorts for rhetorical effect. He wants some very extreme solutions, and I think that he (correctly) believes that he will not get what he wants unless he spawns an aura of impending crisis and binary, good-versus-evil conflicts.

In other words, demagoguery seems to be one of Lessig’s ideas—certainly the one that recurs most regularly through all of his writings. To fail to confront it is to ignore an aspect of Lessig that (he seems to think) makes him effective. That said, confronting demagoguery is difficult, and the best way that I can think to do that is to point it out and call it for what it is.

So when Lessig goes off the deep end and starts describing the reign of Stalin as “bland communism,” it is perfectly reasonable to note the resulting jaw-dropping absurdity. Free Culture is what it is: A book that begins (p.xvi), with the claim that it was written against “extremism”—and ends with the Fisher scheme for tax-funded pornography and pervasive surveillance.

Thanks again. --Tom

Hi, Tim. Thanks for the reaction to my paper. Here are several thoughts.

First, I think that the issues noted in my paper can explain why many libertarians don’t take “Lessig’s idea’s about copyrights seriously.,” In his 1999 book Code and his 2006 book Code v.2.0, Lessig devotes entire chapters, (“What Declan Doesn’t Get”), to very personalized attacks on the “libertarians” whose bourgeois affinity for property rights and markets are obstructing Lessig’s efforts to convince America to turn the design of the Internet over to the government.

Indeed, Lessig’s attacks were so absurd that even law professors—a group not noted for their libertarian tendencies—responded with multiple law-review articles entitled, “What Larry Doesn’t Get.” But the basic problem was even more fundamental: Lessig’s views on the subspecies of property rights called “copyrights” are no different than his views about the property rights of Internet-access-service providers or online services providers, which is to say, let’s regulate them all into oblivion.

Second, I agree, as I noted in the paper and in my email to you, that to fully engage Lessig and his book Free Culture, I need to confront 1) his account of copyrights past; 2) his account of copyrights present, and 3) his account of copyrights future. Nevertheless, I deferred my analysis of Lessig’s account of copyrights past and present because I realized, as I wrote it, that the validity of Lessig’s accounts of copyrights past and present had no bearing on the validity (or lack thereof) of his account of what we should do in the future.

I will have more to say soon on Lessig’s accounts of copyrights past and present. While nothing can fully compare to the raw socialist idiocy of Lessig and Fisher’s tax-and-surveillance scheme, I will say this: I would not have separated my response to Lessig’s account of copyrights past and present if I did not think that I could eviscerate them thoroughly. I love spring as much as anyone, but “in like a lion, out like a lamb” is bad advocacy.

Second, I think you overstate the extent to which I am attacking an “afterthought” in Free Culture. The fundamental question confronting the author of Free Culture (and copyright policy generally) is simple: How (or do) we enforce copyrights online in a rational manner? Nothing about copyrights past or present answers to that question.

Moreover, the potential sociological importance of peer-to-peer file-sharing is the central theme that recurs throughout Free Culture. More than anything else, Free Culture is “about” what Lessig, (inaccurately, because he does not really understand the technology), calls “p2p.” The Fisher scheme is Lessig’s answer to the critical question, “What do we do about the p2p file-sharing that I have been discussing throughout this entire book?” Here is how Lessig puts it:

“The battle that got this whole war going was about music, so it wouldn’t be fair to end this book without addressing the issue that is, to most people, most pressing—music. There is no other policy issue that better teaches the lessons of this book than the battles around the sharing of music.”

Consequently, I do not think that I can be criticized for agreeing with Lessig on one point: “There is no other policy issue that better teaches the lessons of [Free Culture] than the battles around the sharing of music.” Questions about whether American copyright law was great in 1975, (Lessig calls it “absurd,” by the way), or whether it is bad today are scarcely relevant. The real question is: What should we do tomorrow? That is the question that Lessig answers when he references the Fisher scheme, and I address his answer in my paper.

As for the substance of the Fisher scheme that follows, do read Promises to Keep. Free Culture is a 345-page book that ends with the claim that the answers to the problem of copyrights on the Internet are in the 352-page book Promises to Keep. I agree that my recent paper is focused primarily on the 352 pages that Lessig incorporated by reference. If that means that my 17-page paper covered only half of the ground covered in the 697-page Free Culture/Promises to Keep combo that Lessig created, I am satisfied.

Moreover, I have a 50+ page analysis of Promises to Keep nearly complete. I am not analyzing it in such detail because it is a smart, reasonable proposal worthy of serious thought. Rather, as noted in my paper, I am analyzing it in such detail in order to show that it is so profoundly flawed as to raise serious questions about the competence of all those who associated themselves with it.

To conclude, let me discuss the part of my paper directed to the question of whether Lessig demonizes property owners. With all due respect, contesting this part of my paper is unwise. Give the devil his due: If I can show that Lessig has engaged in the very sort of conduct that he himself has condemned as demagoguery, then I can label him a demagogue without stooping to his own level. Skewering tenured hypocrites is a proud American tradition.

Take, for example, the attempt to claim that I take Lessig out of context when I note that he called others “sheep.” Lessig says that he was asking these questions, “What would a free resource give us that [privately] controlled resources don’t? What is the value in avoiding systems of [private] control?” And to this, Lessig says, “Now this is a hard question to ask, here. It’s actually a hard question to ask anywhere—as it usually elicits a sheep like stare among most in the audience.”

Hard question to ask? Frankly, if Lessig saw “sheep like stare[s]” when he asked such “hard” questions, it was for one of two reasons. First, those audience members who did not realize that “free,” (to Lessig) means “costly and state-controlled,” were probably stupefied by thoughts like, “Are you serious? Is ‘free’ ever inferior to ‘controlled?’” Second, those few audience members who realized that the Lessigian “free” really means “costly and state-controlled” were probably stupefied by thoughts like, “Are you serious? Has state-controlled culture ever proved itself superior to privately controlled culture?”

In short, Lessig is what his own writings say that he is: a hypocritical demagogue—one so terrifyingly self-righteous and hopelessly partisan that he could scarcely finish praising restraint before he resumed using the rhetoric of racism to brand the other side as the devil’s own.

Lessig is what he has denounced. It is possible that he can be defended on other grounds. But not on this one.

In summary, thanks, Tim, for you comments on my first Free-Culture-related paper. I will look forward to discussing our respective views on Lessig’s accounts of copyrights past and present.
–Tom