What I’m Telling Thursday’s Panelists

by on December 3, 2012 · 1 comment

This morning, I’m gearing up for Thursday’s noon-time Cato book forum on the Mercatus/Jerry Brito book, Copyright Unbalanced: From Incentive to Excess.

With the recent release and withdrawal of a Republican Study Committee memo on copyright policy, there is even greater tension around the issues than usual. So here’s a line from the planning email I sent to panelists Jerry Brito, Tom W. Bell, and Mitch Glazier.

Given how hot the issues we’ll discuss tend to be, I’ll emphasize that we’re all friends through the transitive property of friendship. I’ll be policing against ad hominem and stuff like that coming from any side. In other words, don’t bother saying or implying why a co-panelist thinks what he does because you don’t know, and because I’ll make fun of you for it.

It might be worth coming just to see how well I do with my moderation duties. Whatever the case, I think our panelists will provide a vibrant discussion on the question of where libertarians and conservatives should be on copyright. Register here now.

  • Tom Sydnor

    Jim, debates about copyright law and policy would inarguably benefit from more thought and fewer ad-hominem personal attacks, and you are to be commended for trying to deter such playground-behavior. But I have some good and bad news about those efforts.

    First, I have some good news: you need not worry that your Book Forum will degenerate into a shouting match that will be memorable onlyfor its excessive resorts to the ad-hominem fallacy. If there is a God, then no one will ever match or even approach the ad-hominem tendencies displayed by William Patry in the worst book on copyrights ever written, Moral Panics and the Copyright Wars. Here is a sample:


    Second, I also have some bad news: In order to keep your promise to make fun of panelists who stoop to ad hominem attacks, you will have to berate Jerry Britto. His book is full of them.

    For example, you correctly note that—perhaps not coincidentally—a Republican Study Committee staffer recently snuck out an almost-immediately retracted rant about “copyright reform” that sounds remarkably Jerry-esque. I replied to it here:


    Frankly, I enjoy replying to “thought” like this even less than a root canal in a lower molar. So I tend to be in a foul mood when writing such a reply. Nevertheless, here is my account of those who disagree with my views:

    “[A]nyone familiar with the debates about copyrights and the Internet
    knows that these debates generate strong views that do not divide along the
    usual party or ideological lines. Defenders of copyrights include progressives,
    liberals, Democrats, independents, Republicans, conservatives, and libertarians.
    Critics of copyrights include progressives, liberals, Democrats, independents,
    Republicans, conservatives, and libertarians.”

    Note that I conceded—because it is true—that there are people who vehemently disagree with me while honestly considering themselves to be good progressives, Democrats, Independents, Republicans, conservatives and libertarians. For this admission, I deserve credit for not being dumb enough to deny basic realities, but no more. I admit realities like this because (1) they seem to be true, and (2) I don’t want to look like a deranged, ranting zealot.

    By contrast, here are some classic ad hominem attacks perpetrated in Copyrights Unbalanced by the newly self-appointed High Chancellor of Real Conservatism and Libertarianism, Jerry Brito:

    “[I]f you are skeptical of government power, you should likewise be skeptical of the copyright system….. [Y]ou should be skeptical of Congress’s ability to develop a rational policy choice….” [Y]ou should be skeptical of the seemingly unlimited economic benefits we’re told stronger copyright can produce…. [Y]ou should be skeptical of the recent trend toward criminalization of even minor infringments….” (pp. 7-8).

    “[Y]ou must acknowledge that copyright is very different from traditional forms of property.” (p.8).

    Gawrsh, Jerry’s awfully prescriptive for a “libertarian” ain’t he? But who am I to complain? After all, if real conservatives and libertarians “should” and “must” agree with Jerry’s views on copyrights, then I cannot be a real conservative or libertarian, can I? Darn the luck….

    That is ad hominem, Jim. For many more examples of it, read more of Copyright Unbalanced. For example, note the ominous title of Chapter Two: The Internet and Its Enemies. Great, apparently the Internet has appointed the High Chancellor of Real Conservatism and Libertarianism and his co-authors as the keeper of its “enemies” list.
    Sorta like Nixon, I guess. What a great way to foster constructive debate
    between Jerry and pals (“the Internet”) and those who disagree with them (“Its

    That is the essence of the ad hominem fallacy. Do be sure to make fun of Jerry for that over-the-top example of ad hominem. And do ask Jerry what he thinks of the contribution to reasoned debate made by the Godwin’s-Law-violating, copyright-concealed Nazi sleeper-cell think-tank in Three Myths about Copyright Law and How to Fix it.

    In short, bans on ad hominem could add something useful to debates on copyrights and the Internet. But they are worse than useless if imposed only after reckless demagogues have finished attacking the character of those who dare to disagree with them. Consequently, I applaud your decision to mock anyone who darkens debate with such cheap thuggery. But Jerry is a serial perpetrator. Nevertheless, you have made your promise, and I believe that you will keep it. I will look forward to seeing that later today. –Tom

    PS: But in case I can’t make it, here is a non-ad-hominen question that you could ask

    “Perhaps the worst of the errors in your Chapter 1 involves a
    professor of intellectual property law somehow getting 222 years of one of the
    most basic attributes of American copyright law not just wrong, but
    bass-ackward: reality turns out to be the opposite of what you claim. What was
    your 222-year-old error, how could have one so fundamental have gone
    undetected, and doesn’t it disserve both your co-authors and readers by casting
    a serious shadow of doubt across your entire book?”

    That is not ad hominem: It targets the absurdity of a clearly invalid argument, not the character of a person. Granted, when made by law professors, some errors of law can be so fundamental that they tend to make their perpetrators look incompetent. But that does not make identifying such errors ad hominem attacks—that’s just “speaking truth to tenure….” It’s never welcome, but neither is it ever unfair.

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