Selective Quotation in the Sydnor Paper

by on April 30, 2008 · 34 comments

Julian didn’t like Tom Sydnor’s paper on Lessig either. In particular, he went back and looked up the sections in Code in which Lessig ostensibly expressed sympathy for Communism. Here’s the rest of the story:

We learn that Lessig wrote, in the first edition of his book Code, of his “impulse to sympathize” with those on the left who are “radically skeptical” about using property rights in personal information to protect privacy. We do not learn that the long quotation that follows is Lessig’s summary of an anti-market view of which he declares himself “not convinced.” (Lessig originally endorsed a property right in personal data; he has since altered his view, and now supports treating Web sites’ privacy policies as binding contracts.)

Sydnor similarly presents selective quotations from a passage in Code where Lessig describes his impression of life in communist Vietnam as surprisingly free and unregulated in certain respects. Lessig’s point is that despite a formal ideology of state omnipotence, the lack of an effective architecture of control leaves many ordinary Vietnamese relatively unfettered in their day-to-day interactions; institutional structure often determines reality more powerfully than official philosophy. Possibly Lessig is mistaken about modern Vietnamese life, but Sydnor, in what seems like a willful misreading, deploys the anecdote to depict Lessig as a disciple of Ho Chi Minh.

And of course yesterday Mike pointed out that Lessig’s point about property rights and DDT wasn’t as outrageous as Tom seemed to think. These examples strikes me as a serious problem. One of the basic obligations of any scholar is to present one’s opponents’ quotes fairly and in context. If a scholar writes “I’m sympathetic to view X, but ultimately I find the arguments for it unconvincing,” it’s extremely misleading for someone to quote the first half of the sentence without mentioning the second half.

Likewise, Julian suggests that Tom’s summary of Fisher’s proposal leaves something to be desired:

Fisher’s proposal entails determining the appropriate level of compensation for creators whose works are pirated by using digital watermarks to assess the prevalence of different songs and movies on file-sharing networks. This, Sydnor writes, would introduce a “literally Orwellian” system of surveillance, allowing the government to “monitor everything that you watch, hear, read or do.” But Lessig says the only “monitoring” he has in mind is a form of statistical sampling, which would no more require tracking of each individual’s consumption than “Nielsen requires you to monitor everyone’s viewing.”

The reader of any scholarly paper is to some extent at the author’s mercy concerning the accuracy of the other work that paper discusses and criticizes. The reader will rarely have the time, and should not be expected, to read the source material to make sure it’s being characterized accurately. So it’s extremely troubling that Julian was able to find multiple examples of blatant misrepresentations of Lessig’s work within 48 hours of the paper’s release. Future readers could be forgiven for wondering how many other cases of selective and misleading quotation might be lurking in the paper, and whether it’s worth reading a paper whose every quotation has to be taken with an enormous lump of salt.

  • http://tieguy.org/ Luis

    Just go ahead and call a spade a spade, Tim. The word you’re looking for is ‘dishonest’ :)

  • http://tieguy.org/ Luis

    Just go ahead and call a spade a spade, Tim. The word you’re looking for is ‘dishonest’ :)

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

    Tim continues to miss the point.

    It’s an error to consider Lessig a serious scholar with serious views about serious issues. He’s a performer/demagogue who will latch onto any issue that he can use to promote the Lessig brand.

    At the Stanford FCC hearing, he portrayed capitalism as a law of the jungle, in pictures of tigers eating prey. What intellectual critique if appropriate to refute that point of view, a picture of George Soros writing a fat check to Free Press so they can bus partisans to the hearing?

    Lessig’s a fraud, and anyone who says so publicly is to be praised and encouraged, as long as he does it well.

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

    Tim continues to miss the point.

    It’s an error to consider Lessig a serious scholar with serious views about serious issues. He’s a performer/demagogue who will latch onto any issue that he can use to promote the Lessig brand.

    At the Stanford FCC hearing, he portrayed capitalism as a law of the jungle, in pictures of tigers eating prey. What intellectual critique if appropriate to refute that point of view, a picture of George Soros writing a fat check to Free Press so they can bus partisans to the hearing?

    Lessig’s a fraud, and anyone who says so publicly is to be praised and encouraged, as long as he does it well.

  • Tom Sydnor

    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

  • Tom Sydnor

    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

  • Tom Sydnor

    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 Lee

    Tom,

    There seems to be a basic reading comprehension issue here. You seem to read that passage as cheerleading for the atrocities of the Communist rulers of Vietnam. I took it to be making an interesting point about the different between de facto and de jure legal regimes; it was making an analytical point about the amount of power the communist government is able to wield in peoples’ lives. It wasn’t a treatise on the relative merits of the Vietnamese and American legal regimes, and so not surprisingly he didn’t say anything in particular about the virtues or vices of the Vietnamese regime, although it’s clear he doesn’t regard the place as a utopia.

    Lessig is a pretty lucid writer, so if all you gleaned from that passage is “Hooray for Vietnam! Hooray for Communism!”, I’m not sure I can help you. That’s clearly not the point Lessig was trying to make, and if Lessig’s point wasn’t clear to you, I doubt anything I could say would be of much help either.

  • Tom Sydnor

    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

  • Tom Sydnor

    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

  • Tom Sydnor

    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

  • http://sethf.com/ Seth Finkelstein

    he portrayed capitalism as a law of the jungle

    Oh my god, nobody has ever done that before! Stars and garters, what insolence! Heavens, is there no limits to that man’s depravity?

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

    First, what Tim said. I see how you *can* parse that introductory section as praise for communism, but it seems to me that you really need to go in with the intention of finding it. I think a normal person’s reading is that this is meant to illustrate the idea that the amount of effective control a state can exert over (say) a small business owner is as much a function of the available institutions and infrastructures of control as official state ideology. I have no idea whether the example is aptly chosen, but it does not seem crazy to suggest that a weak, putatively “absolute” state might not be able, in practice, to enforce certain sorts of regulations.

    As for Fisher, I think it’s sort of a testament to how far you’re stretching here that I’m in the position of “defending” what sounds to me like a terrible idea. This “Orwellian” stuff is just grossly distorting of both Fisher’s original proposal and, a fortiori, of Lessig’s rather milder modification. Here, for interested third parties, is what Fisher actually proposes:

    “To sum up, the most plausible way of estimating the relative values to consumers of downloaded registered recordings would be to use a large-scale sampling system that automatically detects and records what persons willing to participate in such a regime are actually watching and listening to, and that aggregates such reports to prevent government officials from learning the consumption choices made by specific participants.”

    In other words, per Nielsen, the proposal is to rely on volunteers to allow their consumption to be measured without personally identifying information and then aggregated, so what the Copyright Office ultimately gets is a list to the effect that X number of people listened to song Y approximately Z times last year.

    You can certainly make the point—and indeed, it’s the sort of point Lessig likes to make—that this is the kind of architecture of surveillance that’s dangerous to build even if it is *supposed* to be both voluntary and anonymous. I might even agree. But if you expect people to regard you as an honest critic arguing in good faith, you can’t just *ignore* these elements of the proposal and start slinging loose talk of a “spying and invasive Net” where the government will “monitor everything that you watch, hear, read or do,” as though they’re suggesting the government keep track of each individual’s personal viewing and listening habits.

    Additionally, it’s quite stunning to me, given that a fair portion of Lessig’s very brief discussion of the Fisher plan is devoted to points of his points of departure from Fisher, there’s not even a nod to these differences. Fisher is indeed talking about “replacing” copyright with his scheme—and even here “nationalizing” production seems like a deliberately misleading description. But Lessig is manifestly proposing nothing of the sort: His proposal is to preserve something like the familiar copyright structure, and use something like the Fisher plan to compensate firms for demonstrable losses (from displaced sales) attributable to downloading (presumably as opposed to regulating networks to block file sharing or having companies go after individual downloaders, which I notice seems to involve a certain amount of intrusive, individualized spying on consumption).

    Again, I have a lot of problems with this proposal—not least that it seems manifestly unfair to network users who don’t download a lot of material, whether or not it deters their consumption of broadband service. Discussion of those problems is not aided by preposterous hand-wringing about Telescreens and Thought Police.

  • http://www.tc.umn.edu/~leex1008 Tim Lee

    Tom,

    There seems to be a basic reading comprehension issue here. You seem to read that passage as cheerleading for the atrocities of the Communist rulers of Vietnam. I took it to be making an interesting point about the different between de facto and de jure legal regimes; it was making an analytical point about the amount of power the communist government is able to wield in peoples’ lives. It wasn’t a treatise on the relative merits of the Vietnamese and American legal regimes, and so not surprisingly he didn’t say anything in particular about the virtues or vices of the Vietnamese regime, although it’s clear he doesn’t regard the place as a utopia.

    Lessig is a pretty lucid writer, so if all you gleaned from that passage is “Hooray for Vietnam! Hooray for Communism!”, I’m not sure I can help you. That’s clearly not the point Lessig was trying to make, and if Lessig’s point wasn’t clear to you, I doubt anything I could say would be of much help either.

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

    Given that pirated content transfers greatly outnumber legal ones, by a factor or 30 or so, effectively the Lessig/Fisher scheme does replace the market with a centrally-controlled government music authority.

    Seth, here’s Lessig’s critique of capitalism: http://bennett.com/blog/pitchers/smalltiger.jpg

  • http://sethf.com/ Seth Finkelstein

    he portrayed capitalism as a law of the jungle

    Oh my god, nobody has ever done that before! Stars and garters, what insolence! Heavens, is there no limits to that man’s depravity?

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

    First, what Tim said. I see how you *can* parse that introductory section as praise for communism, but it seems to me that you really need to go in with the intention of finding it. I think a normal person’s reading is that this is meant to illustrate the idea that the amount of effective control a state can exert over (say) a small business owner is as much a function of the available institutions and infrastructures of control as official state ideology. I have no idea whether the example is aptly chosen, but it does not seem crazy to suggest that a weak, putatively “absolute” state might not be able, in practice, to enforce certain sorts of regulations.

    As for Fisher, I think it’s sort of a testament to how far you’re stretching here that I’m in the position of “defending” what sounds to me like a terrible idea. This “Orwellian” stuff is just grossly distorting of both Fisher’s original proposal and, a fortiori, of Lessig’s rather milder modification. Here, for interested third parties, is what Fisher actually proposes:

    “To sum up, the most plausible way of estimating the relative values to consumers of downloaded registered recordings would be to use a large-scale sampling system that automatically detects and records what persons willing to participate in such a regime are actually watching and listening to, and that aggregates such reports to prevent government officials from learning the consumption choices made by specific participants.”

    In other words, per Nielsen, the proposal is to rely on volunteers to allow their consumption to be measured without personally identifying information and then aggregated, so what the Copyright Office ultimately gets is a list to the effect that X number of people listened to song Y approximately Z times last year.

    You can certainly make the point—and indeed, it’s the sort of point Lessig likes to make—that this is the kind of architecture of surveillance that’s dangerous to build even if it is *supposed* to be both voluntary and anonymous. I might even agree. But if you expect people to regard you as an honest critic arguing in good faith, you can’t just *ignore* these elements of the proposal and start slinging loose talk of a “spying and invasive Net” where the government will “monitor everything that you watch, hear, read or do,” as though they’re suggesting the government keep track of each individual’s personal viewing and listening habits.

    Additionally, it’s quite stunning to me, given that a fair portion of Lessig’s very brief discussion of the Fisher plan is devoted to points of his points of departure from Fisher, there’s not even a nod to these differences. Fisher is indeed talking about “replacing” copyright with his scheme—and even here “nationalizing” production seems like a deliberately misleading description. But Lessig is manifestly proposing nothing of the sort: His proposal is to preserve something like the familiar copyright structure, and use something like the Fisher plan to compensate firms for demonstrable losses (from displaced sales) attributable to downloading (presumably as opposed to regulating networks to block file sharing or having companies go after individual downloaders, which I notice seems to involve a certain amount of intrusive, individualized spying on consumption).

    Again, I have a lot of problems with this proposal—not least that it seems manifestly unfair to network users who don’t download a lot of material, whether or not it deters their consumption of broadband service. Discussion of those problems is not aided by preposterous hand-wringing about Telescreens and Thought Police.

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

    Given that pirated content transfers greatly outnumber legal ones, by a factor or 30 or so, effectively the Lessig/Fisher scheme does replace the market with a centrally-controlled government music authority.

    Seth, here’s Lessig’s critique of capitalism: http://bennett.com/blog/pitchers/smalltiger.jpg

  • http://techdirt.com/ Mike Masnick

    Frankly, Tom’s writeup should call into question anything published by PFF. The fact that he continues to defend such a blatant misreading of Lessig’s work is equally troublesome.

    Lessig’s point on Vietnam is clear, as Julian points out: I honestly cannot see how one could read that as a defense of communism.

    Tim, Julian and myself are probably all more closely politically aligned to Tom than we are to Lessig — yet all of us find Tom’s portrayal of Lessig’s ideas as troublesome. Every *single* point Tom makes, when read in the original context appears to say something other than what Tom says it claims.

    As for Richard Bennett, you don’t offer a single point other than the fact that you dislike Lessig. If you think that makes it okay to take his words out of context, then… well, I guess that says something about the type of person you are.

    I have no problem with people disagreeing with Lessig. I disagree with him on many points. But this PFF paper *weakens* the status of libertarians, in painting them as folks who will stoop so low as to outright fabricate an argument.

    It’s a sad statement on the quality of PFF.

    I’m certainly not one to defend Lessig’s positions, but if you want to critique them, at least do so in an intellectually honest manner. This attack is so blatantly off-base that it actually helps Lessig more, by suggesting there is no real argument against him.

    Tom, you’re hurting your position more than helping it, and each time you reply, you dig yourself in deeper.

  • http://techdirt.com/ Mike Masnick

    Frankly, Tom’s writeup should call into question anything published by PFF. The fact that he continues to defend such a blatant misreading of Lessig’s work is equally troublesome.

    Lessig’s point on Vietnam is clear, as Julian points out: I honestly cannot see how one could read that as a defense of communism.

    Tim, Julian and myself are probably all more closely politically aligned to Tom than we are to Lessig — yet all of us find Tom’s portrayal of Lessig’s ideas as troublesome. Every *single* point Tom makes, when read in the original context appears to say something other than what Tom says it claims.

    As for Richard Bennett, you don’t offer a single point other than the fact that you dislike Lessig. If you think that makes it okay to take his words out of context, then… well, I guess that says something about the type of person you are.

    I have no problem with people disagreeing with Lessig. I disagree with him on many points. But this PFF paper *weakens* the status of libertarians, in painting them as folks who will stoop so low as to outright fabricate an argument.

    It’s a sad statement on the quality of PFF.

    I’m certainly not one to defend Lessig’s positions, but if you want to critique them, at least do so in an intellectually honest manner. This attack is so blatantly off-base that it actually helps Lessig more, by suggesting there is no real argument against him.

    Tom, you’re hurting your position more than helping it, and each time you reply, you dig yourself in deeper.

  • Tom Sydnor

    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

  • Tom Sydnor

    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

  • http://techdirt.com/ Mike Masnick

    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.

  • http://techdirt.com/ Mike Masnick

    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.

  • Tom Sydnor

    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

  • Tom Sydnor

    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

  • Tom Sydnor

    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

  • Tom Sydnor

    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

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