Free Culture and Libertarianism, Again

by on April 29, 2008 · 31 comments

Our friends at the Progress and Freedom Foundation have released a paper by PFF’s new copyright guru about Larry Lessig, Free Culture, and whether libertarians should take them seriously. Since the paper is framed as a response to my recent post on Lessig’s work, I suppose I should offer some thoughts on the subject.

I have to say that I found the paper disappointing. I’ve frequently said I wished more libertarians took Lessig’s ideas about copyright seriously, and so I’m generally happy to see libertarian organizations writing about Lessig’s work, even if they do so critically. But it seems to me that a basic principle of good scholarship is that you start with a good-faith interpretation of your opponent’s position and then proceed to explain the flaws in fair-minded way. The goal isn’t to give your readers the worst possible impression of your opponent, but to help your readers to better understand the opponent’s arguments even as you refute them. That doesn’t appear to be what Tom did. Rather, he appears to have read through Lessig’s rather substantial body of work (3 books and numerous papers) and cherry-picked the words, phrases, sentences, and paragraphs that, when taken in isolation, give the impression that Lessig is (as Tom puts it) a “name-calling demogogue.”

This makes it awfully hard to know where to begin in analyzing Tom’s arguments, such as they are. For example, consider the first paragraph after the introduction:

Disputes about whether Lessig “demonizes” property owners are easily resolved. He does so incessantly. Scholars are supposed to be disinterested, balanced and thoughtful. Lessig is an name-calling demagogue: In just one law-review article, he calls those who fail to agree with him sheep, cows, unimaginative, extreme, stupid, simplistic, blind, uncomprehending, oblivious, pathetic, resigned, unnoticing, unresisting, unquestioning, and confused—”most don’t really get it.”

Now, he does indeed use all of those words in “The Architecture of Innovation.” In some cases, they’re even applied to people he disagrees with. But they’re sprinkled through a 15-page paper, and to judge how demagogic they are, you really have to see the full context to see who, exactly, he’s referring to with each of these words. To take just the first example—sheep—what Lessig actually says is that he frequently encounters a sheep-like stare from his audience when he asks the questions “what would a free resource give us that controlled resources don’t? What is the value of avoiding systems of control?” He’s clearly not calling everyone who disagrees with him sheep, he’s making a point—valid or not—about peoples’ failure to understand a set of questions that he thinks are important.

Now, I could go through each of the other words in the list and try to referee whether there’s too much name-calling going on. And then I could wade through the rest of the paper, which is replete with the same kind of accusations. In some cases, I’m sure, there’s evidence that Lessig had a poor choice of words or offered an uncharitable opinion of his opponents. But I’m not sure I understand what the point of all this is. I’m interested in Lessig’s ideas, not his civility or his low opinion of his opponents. Whatever his politics, Lessig is a serious thinker with some interesting ideas that libertarians (and everyone else) in tech policy ought to understand and grapple with. Pointing out that Lessig occasionally stoops to name-calling just isn’t a response to his actual arguments.

This is particular true because of the nature of what Lessig is trying to do. What Lessig’s work—and Free Culture in particular—has tried to do is to get people to ask deep questions about the nature of property rights, innovation, and freedom. Doing that necessarily will mean asking questions and drawing analogies that will make people uncomfortable. So point out that (for example) he compared copyright law to DDT, or Hollywood to southern share-croppers, doesn’t tell you very much unless you know what point he was trying to make. Provocative analogies are often helpful in getting people to think about issues in a new way. Taking those analogies out of context is a terrible way to engage in that kind of debate. Mike Masnick, for example, gives some context on the DDT angle that I think makes clear that Lessig had an interesting and serious point, whether or not you agree with it.

So I’m not inclined to get into a pissing match about whose rhetoric is more inflammatory, nor am I interested in re-reading everything Lessig ever wrote to figure out which of his various comments were in poor taste. What I’m interested in are Lessig’s ideas, and Tom’s response to those ideas. To respond effectively to those ideas, you have to first understand what they are, and Tom gives no indication that he actually made the effort to figure out which ideas Lessig might have had that were at least worth taking seriously enough to rebut them.

Indeed, the only one of the ideas in Free Culture that he discusses in any detail is an idea that Lessig discusses for about one page, literally as an afterthought (it’s in the book’s afterward). That is William Fisher’s proposal for government compensation of copyright creators. Now, I should say I don’t agree with this proposal and will probably write a critique of it when I get time to read through it. But I don’t think any fair-minded reader could read Free Culture and come away with the conclusion that this was the point of the book. He spends 271 pages explaining, in great detail, what he regards as the flaws with the present copyright system. He then spends 11 pages explaining the idea behind Creative Commons, a private system for copyright holders to voluntarily allow others to use their works more freely. He spends 4 pages talking about the need to bring back formalities, 2 pages making the case for shorter copyright terms, and 2 pages talking about the need for expanded fair use. Then there’s 6 pages talking about the peer-to-peer file sharing problem, which includes a page talking about the Fisher proposal. Finally, he closes with a plea to “fire lots of lawyers,” surely something all libertarians can get behind.

If the point of Tom’s paper is to put Lessig in the worst possible light from a libertarian perspective, I guess he succeeded. Libertarians who are already predisposed to dislike Lessig can read Tom’s paper, find quotes that confirm that yes, Lessig has some views that aren’t consistent with libertarianism, and dismiss him on that basis.

If, on the other hand, Tom’s goal was to provide a fair-minded assessment of Lessig’s work on copyright, he has fallen far short of that goal. The point of the first 271 pages of Lessig’s book—that the current copyright system is increasingly hindering, rather than promoting, the progress of science and the useful arts, was completely ignored by Tom’s paper. Someone reading Tom’s paper would have no idea what the central arguments of Free Culture are or what the philosophical difference between the different sides in the copyrigtht debate might be.

And I think that’s a shame, because even if you don’t agree with everything Lessig has to say (and I certainly don’t), he’s an important thinker whose arguments should be familiar even to his intellectual opponents. Tom could have educated his readers about Lessig’s arguments even as he explained why they’re flawed, but unfortunately, he appears to me to have chosen the low road instead, seeking merely to discredit Lessig-the-man without seriously grappling with Lessig’s ideas.

  • http://jerrybrito.com Jerry Brito

    I agree wholeheartedly and was similarly disappointed after reading Sydnor’s paper. The first part is dedicated entirely to demonstrating that Lessig is an ass. That may be satisfying to some, but the matter has no bearing on anything and leads me to discount arguments in the second part of the paper, which as you point out are out of context.

    Lessig is the father of some very bad ideas, but also some very good ones. I for one like to stay focused on the merits of those ideas and not on the person.

  • Ryan Radia

    Tom does make good arguments against Lessig’s vision of “compensation without control.” Despite the major disadvantages of having copyrights, there is simply no compelling alternative method of compensating creators of intellectual works. It’s either have copyrights, or else leave artistic expression unprotected.

    I wonder, then, if Tom at least agrees with Lessig’s argument that copyright law is overly broad in the U.S. The Progress on Point. America’s current IP regime is pretty indefensible and attacking Lessig won’t change that.

    Labeling one’s enemies socialists and accusing them of channeling Jane Fonda may be an easy way to win over firebrand ideologues with overly simplistic views of reality, but it is no substitute for actually addressing the issues.

  • http://linuxworld.com/community/ Don Marti

    Why is the libertarian scene so tolerant and inclusive of rent-seekers using “property rights” rhetoric?

    If the ILGWU started a DC-based lobbying organization to defend its members’ “property rights” in their jobs, would that organization make the TLF blogroll?

  • http://jerrybrito.com Jerry Brito

    I agree wholeheartedly and was similarly disappointed after reading Sydnor’s paper. The first part is dedicated entirely to demonstrating that Lessig is an ass. That may be satisfying to some, but the matter has no bearing on anything and leads me to discount arguments in the second part of the paper, which as you point out are out of context.

    Lessig is the father of some very bad ideas, but also some very good ones. I for one like to stay focused on the merits of those ideas and not on the person.

  • http://www.techliberation.com/ Tim Lee

    Tom does make good arguments against Lessig’s vision of “compensation without control.”

    Ryan, note that Lessig advocates his subsidy system as a supplement, not an alternative, to the existing copyright system:

    Fisher’s proposal is careful and comprehensive. It raises a million questions, most of which he answers well in his upcoming book, Promises to Keep. The modification that I would make is relatively simple: Fisher imagines his proposal replacing the existing copyright system. I imagine it complementing the existing system. The aim of the proposal would be to facilitate compensation to the extent that harm could be shown. This compensation would be temporary, aimed at facilitating a transition between regimes. And it would require renewal after a period of years. If it continues to make sense to facilitate free exchange of content, supported through a taxation system, then it can be continued. If this form of protection is no longer necessary, then the system could lapse into the old system of controlling access.

    I don’t personally think it’s a very good idea, but Lessig’s position certainly isn’t anti-copyright.

  • Ryan Radia

    Tom does make good arguments against Lessig’s vision of “compensation without control.” Despite the major disadvantages of having copyrights, there is simply no compelling alternative method of compensating creators of intellectual works. It’s either have copyrights, or else leave artistic expression unprotected.

    I wonder, then, if Tom at least agrees with Lessig’s argument that copyright law is overly broad in the U.S. The Progress on Point. America’s current IP regime is pretty indefensible and attacking Lessig won’t change that.

    Labeling one’s enemies socialists and accusing them of channeling Jane Fonda may be an easy way to win over firebrand ideologues with overly simplistic views of reality, but it is no substitute for actually addressing the issues.

  • http://linuxworld.com/community/ Don Marti

    Why is the libertarian scene so tolerant and inclusive of rent-seekers using “property rights” rhetoric?

    If the ILGWU started a DC-based lobbying organization to defend its members’ “property rights” in their jobs, would that organization make the TLF blogroll?

  • http://www.techliberation.com/ Tim Lee

    Tom does make good arguments against Lessig’s vision of “compensation without control.”

    Ryan, note that Lessig advocates his subsidy system as a supplement, not an alternative, to the existing copyright system:

    Fisher’s proposal is careful and comprehensive. It raises a million questions, most of which he answers well in his upcoming book, Promises to Keep. The modification that I would make is relatively simple: Fisher imagines his proposal replacing the existing copyright system. I imagine it complementing the existing system. The aim of the proposal would be to facilitate compensation to the extent that harm could be shown. This compensation would be temporary, aimed at facilitating a transition between regimes. And it would require renewal after a period of years. If it continues to make sense to facilitate free exchange of content, supported through a taxation system, then it can be continued. If this form of protection is no longer necessary, then the system could lapse into the old system of controlling access.

    I don’t personally think it’s a very good idea, but Lessig’s position certainly isn’t anti-copyright.

  • http://www.codemonkeyramblings.com MikeT

    Libertarians should be skeptical of arguments for strengthening intellectual property law because of how much new government intervention is required. It seems like every few years, more laws, more regulations, have to be added in order to keep the system from falling apart.

    This is not to say that we should throw the baby out with the bath water, but the PFF is blithely dismissive of the sheer amount of government intervention required to protect copyrighted goods today. For example, I don’t buy for a minute the arguments that James DeLong used to make when he worked for PFF that without government protection of DRM running rough shod over our property rights in our computers, the music industry would collapse. As a libertarian, I see a greater evil in the government taking up residence in my OS and hardware to protect big media, than in seeing little artists never making it as full time artists because their goods get pirated here and there.

    First principles for libertarians should always be property rights, freedom of thought, and ownership of self. These principles seem to get sold down the river progressively as copyright and IP in general are expanded.

  • http://jerrybrito.com Jerry Brito

    Don, First let me say that a spot on the TLF blogroll is not an endorsement of that person or organization. Lawrence Lessig and Susan Crawford have spots on there! That said, I think your point about the rhetoric of property rights is a great one. Many libertarians rightly revere property rights, as MikeT points out. However, they confuse copyright and traditional property rights in tangible goods. I see this in the second part of Sydnor’s paper.

  • http://www.codemonkeyramblings.com MikeT

    Libertarians should be skeptical of arguments for strengthening intellectual property law because of how much new government intervention is required. It seems like every few years, more laws, more regulations, have to be added in order to keep the system from falling apart.

    This is not to say that we should throw the baby out with the bath water, but the PFF is blithely dismissive of the sheer amount of government intervention required to protect copyrighted goods today. For example, I don’t buy for a minute the arguments that James DeLong used to make when he worked for PFF that without government protection of DRM running rough shod over our property rights in our computers, the music industry would collapse. As a libertarian, I see a greater evil in the government taking up residence in my OS and hardware to protect big media, than in seeing little artists never making it as full time artists because their goods get pirated here and there.

    First principles for libertarians should always be property rights, freedom of thought, and ownership of self. These principles seem to get sold down the river progressively as copyright and IP in general are expanded.

  • http://jerrybrito.com Jerry Brito

    Don, First let me say that a spot on the TLF blogroll is not an endorsement of that person or organization. Lawrence Lessig and Susan Crawford have spots on there! That said, I think your point about the rhetoric of property rights is a great one. Many libertarians rightly revere property rights, as MikeT points out. However, they confuse copyright and traditional property rights in tangible goods. I see this in the second part of Sydnor’s paper.

  • Tom Sydnor

    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

  • http://bennett.com/blog Richard Bennett

    I don’t have any problems with the characterization of Lessig as a hypocritical demagogue. You don’t get the full effect of his fundamental lack of honesty from this books, however, as it’s really necessary to see him do one of his slide shows in public. Lessig doesn’t present coherent arguments that can be checked against the facts and logically taken apart as much as he appeals to the emotions and attempts to lull his audience into a sheep-like acceptance of some pretty ludicrous suggestions.

    The typical Lessig argument takes an issue that people are concerned about, such as copyright or network neutrality, wraps it inside a technical term that few people understand, such as “end-to-end”, constructs a fictional history around it, and then excoriates policy makers for departing from the great traditions of the past which actually never were.

    I admire the self control of anyone who can read and digest all three of the books covered by this article and write a simple critique. Lessig is so extremely dishonest and has such a large and emotionally-committed cult following that he deserves something along the lines of public whipping.

    There are serious issues to be discussed about copyright and technology, but Lessig doesn’t discuss them in a serious way, and in fact impedes their examination by his relentless pollution of the intellectual space.

    I fail to see how anyone can take him seriously, but many people do and there’s the rub.

  • Tom Sydnor

    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

  • http://bennett.com/blog Richard Bennett

    I don’t have any problems with the characterization of Lessig as a hypocritical demagogue. You don’t get the full effect of his fundamental lack of honesty from this books, however, as it’s really necessary to see him do one of his slide shows in public. Lessig doesn’t present coherent arguments that can be checked against the facts and logically taken apart as much as he appeals to the emotions and attempts to lull his audience into a sheep-like acceptance of some pretty ludicrous suggestions.

    The typical Lessig argument takes an issue that people are concerned about, such as copyright or network neutrality, wraps it inside a technical term that few people understand, such as “end-to-end”, constructs a fictional history around it, and then excoriates policy makers for departing from the great traditions of the past which actually never were.

    I admire the self control of anyone who can read and digest all three of the books covered by this article and write a simple critique. Lessig is so extremely dishonest and has such a large and emotionally-committed cult following that he deserves something along the lines of public whipping.

    There are serious issues to be discussed about copyright and technology, but Lessig doesn’t discuss them in a serious way, and in fact impedes their examination by his relentless pollution of the intellectual space.

    I fail to see how anyone can take him seriously, but many people do and there’s the rub.

  • Tim Lee

    Tom,

    Your beefs with Lessig seem to boil down to three things: (1) you didn’t agree with the thesis of Code (I didn’t either), (2) you disagree with the Fisher proposal (so do I), and (3) you think Lessig is a jerk. I don’t think question (3) is very interesting or relevant to the policy debate over copyright. Question (1) has nothing to do with Free Culture, which is what my original blog post was talking about, and I still think question (2) was a relatively minor part of Lessig’s book.

    My original claim, to which you framed your paper as a response, was that “[T]he central theme of Free Culture is something conservatives normally celebrate: reducing the role of government and lawyers into Americans’ ordinary lives.” I don’t think anything in your paper rebuts this claim. My claim was not about Code or about Lessig’s various papers. And a 2-page endorsement of Fisher proposal at the very end of Free Culture does not make that its “central theme.” Indeed, the fundamentally deregulatory thrust of Lessig’s copyright work can be seen in his copyright-related litigation and advocacy efforts. Lessig’s litigation in Eldred and Kahle were focused on reducing the burden of copyright on works that had long since ceased to be commercially significant. And his most ambitious copyright-related project, has focused on helping artists to voluntarily lighten the load of copyright in cases where artists themselves wish to do so. If Lessig has spent time on the Hill lobbying for the Fisher proposal, I haven’t heard about it.

    In any event, it sounds like you’ve left your critique of the meat of Free Culture—the first 270 pages or so of the 300-page book, dealing with the problems the copyright system is creating in today’s marketplace—to a subsequent paper. I’ll look forward to reading that one, and I do hope you’ll spend less time calling Lessig names and more time addressing the substance of his arguments.

  • Tim Lee

    Tom,

    Your beefs with Lessig seem to boil down to three things: (1) you didn’t agree with the thesis of Code (I didn’t either), (2) you disagree with the Fisher proposal (so do I), and (3) you think Lessig is a jerk. I don’t think question (3) is very interesting or relevant to the policy debate over copyright. Question (1) has nothing to do with Free Culture, which is what my original blog post was talking about, and I still think question (2) was a relatively minor part of Lessig’s book.

    My original claim, to which you framed your paper as a response, was that “[T]he central theme of Free Culture is something conservatives normally celebrate: reducing the role of government and lawyers into Americans’ ordinary lives.” I don’t think anything in your paper rebuts this claim. My claim was not about Code or about Lessig’s various papers. And a 2-page endorsement of Fisher proposal at the very end of Free Culture does not make that its “central theme.” Indeed, the fundamentally deregulatory thrust of Lessig’s copyright work can be seen in his copyright-related litigation and advocacy efforts. Lessig’s litigation in Eldred and Kahle were focused on reducing the burden of copyright on works that had long since ceased to be commercially significant. And his most ambitious copyright-related project, has focused on helping artists to voluntarily lighten the load of copyright in cases where artists themselves wish to do so. If Lessig has spent time on the Hill lobbying for the Fisher proposal, I haven’t heard about it.

    In any event, it sounds like you’ve left your critique of the meat of Free Culture—the first 270 pages or so of the 300-page book, dealing with the problems the copyright system is creating in today’s marketplace—to a subsequent paper. I’ll look forward to reading that one, and I do hope you’ll spend less time calling Lessig names and more time addressing the substance of his arguments.

  • http://bennett.com/blog Richard Bennett

    Tim, I know you’re an admirer of Lessig, but the fact remains that it’s perfectly legitimate to critique his style as well as whatever substance there may be to his program. It’s the opinion of many who have seen and debated him that he’s a charlatan or simply insane. That’s not a fact that should be omitted from the Lessig discussion simply because it fails to deal with his rather unremarkable ideas about copyright.

    The emotional imbalance, the stridency, the dishonesty, the projection, the paranoia and the inconsistency is what makes Lessig Lessig, in other words.

    This is not the ordinary law professor with a case to make, it’s a self-promoter out to build a cult of zombie followers.

  • http://bennett.com/blog Richard Bennett

    Tim, I know you’re an admirer of Lessig, but the fact remains that it’s perfectly legitimate to critique his style as well as whatever substance there may be to his program. It’s the opinion of many who have seen and debated him that he’s a charlatan or simply insane. That’s not a fact that should be omitted from the Lessig discussion simply because it fails to deal with his rather unremarkable ideas about copyright.

    The emotional imbalance, the stridency, the dishonesty, the projection, the paranoia and the inconsistency is what makes Lessig Lessig, in other words.

    This is not the ordinary law professor with a case to make, it’s a self-promoter out to build a cult of zombie followers.

  • http://tieguy.org/ Luis

    The emotional imbalance, the stridency, the dishonesty, the projection, the paranoia and the inconsistency is what makes Lessig Lessig, in other words.

    Strong words coming from… well, a ranting, raving paranoiac. :)

    Tim: a well written, balanced piece, as usual. Well done.

    By the way, you should definitely get around to reading Fisher’s piece. I was really, really troubled by his conclusion- but at the same time, I found his deconstruction of the other options very persuasive as well. That left me in an unsatisfying place, I admit, but it certainly made me more appreciative of his proposal than I might have been had I only come to it in isolation (like you do in Free Culture.)

  • http://tieguy.org/ Luis

    The emotional imbalance, the stridency, the dishonesty, the projection, the paranoia and the inconsistency is what makes Lessig Lessig, in other words.

    Strong words coming from… well, a ranting, raving paranoiac. :)

    Tim: a well written, balanced piece, as usual. Well done.

    By the way, you should definitely get around to reading Fisher’s piece. I was really, really troubled by his conclusion- but at the same time, I found his deconstruction of the other options very persuasive as well. That left me in an unsatisfying place, I admit, but it certainly made me more appreciative of his proposal than I might have been had I only come to it in isolation (like you do in Free Culture.)

  • Berin Szoka

    “Gentlemen, you can’t fight in here! This is the War Room.”
    - President Merkin Muffley

  • http://techliberation.com/author/berinszoka/ Berin Szoka

    “Gentlemen, you can’t fight in here! This is the War Room.”
    - President Merkin Muffley

  • Tom Sydnor

    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

  • http://www.juliansanchez.com Julian Sanchez

    The “bland communism” thing appears to really stick in Mr Sydnor’s craw. And while this is a slightly more ambiguous instance than some of the other cases where quotations are ripped from context, but it still looks to me like an unfair reading:

    “A modern if plodding anarchy replaced the bland communism of the previous three generations: Neon lights flashed advertisements for Nike; pensioners were swindled out of their life savings by fraudulent stock deals; bankers were murdered in broad daylight on Moscow streets.”

    To the extent that this can be read to imply an equivalence between the situation in late-90s Russia and the butchery of the Stalin era, that would, of course, be both glib and grotesque. Probably we’re justified in faulting Lessig for not clearly disavowing any such suggestion. But the fundamental point seems sound enough: A healthy market society will not automatically spring up in the vacuum created by a despot’s ouster; you need some affirmative notion of what sort of rules and institutions will create functioning markets.

    But as for “bland” communism, I thought that the reference in the succeeding clause to neon billboards left it relatively clear that this was supposed to present a contrast between the drab Soviet aesthetic and a flashier market economy. In other words, you may have the lively appearance of a market society, but gangsters are still in charge. If you go in determined to find evidence of Lessig’s Stalinist sympathies, I suppose I can see how you might parse that as a minimization of the horrors of the old regime, but it doesn’t seem like the only available reading, and certainly not the most charitable one.

  • Tom Sydnor

    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

  • http://www.juliansanchez.com Julian Sanchez

    The “bland communism” thing appears to really stick in Mr Sydnor’s craw. And while this is a slightly more ambiguous instance than some of the other cases where quotations are ripped from context, but it still looks to me like an unfair reading:

    “A modern if plodding anarchy replaced the bland communism of the previous three generations: Neon lights flashed advertisements for Nike; pensioners were swindled out of their life savings by fraudulent stock deals; bankers were murdered in broad daylight on Moscow streets.”

    To the extent that this can be read to imply an equivalence between the situation in late-90s Russia and the butchery of the Stalin era, that would, of course, be both glib and grotesque. Probably we’re justified in faulting Lessig for not clearly disavowing any such suggestion. But the fundamental point seems sound enough: A healthy market society will not automatically spring up in the vacuum created by a despot’s ouster; you need some affirmative notion of what sort of rules and institutions will create functioning markets.

    But as for “bland” communism, I thought that the reference in the succeeding clause to neon billboards left it relatively clear that this was supposed to present a contrast between the drab Soviet aesthetic and a flashier market economy. In other words, you may have the lively appearance of a market society, but gangsters are still in charge. If you go in determined to find evidence of Lessig’s Stalinist sympathies, I suppose I can see how you might parse that as a minimization of the horrors of the old regime, but it doesn’t seem like the only available reading, and certainly not the most charitable one.

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