Speaking of Cynical…

Here’s Patrick Ross’s take on today’s Cato conference:

I wonder how some of the Cato fellows and alums in the audience felt, then, when twice Cato was welcomed into the fold as a copyfighter. Rep. Zoe Lofgren and the CEA’s Gary Shapiro both did so. Lofgren said she didn’t recall ever stepping foot into Cato before, but “this might be one area where Cato and I form a working partnership.” Shapiro urged Cato to take the issue to the Hill. What Lofgren and Shapiro are referring to is a recent paper published by Cato that calls for, essentially, a repeal of the DMCA. The paper takes a very cynical view toward intellectual property rights and creators.

To be honest, I’m not sure what he’s talking about in that last sentence. At no point in my paper do I write anything that could be plausibly described as a “cynical view toward intellectual property rights.” As I’ve tried over and over to emphasize, my concern is with the ways the DMCA has interfered with the marketplace in realms outside the traditional scope of copyright, such as preventing interoperability and stifling competition. I can easily imagine Mr. Ross having legitimate policy disagreements with my analysis, or arguing that the benefits of DRM technology are worth these downsides. I think that would be an interesting and productive debate. But for some reason, he doesn’t seem very interested in it.

Instead, Ross seems determined to knock down a straw man of my views. When I argue that the DMCA is a poor method of protecting copyrights, he describes that as being “cynical” about intellectual property. As in his epic three part critique to my paper last month, Mr. Ross’s primary mode of argument seems to be to misrepresent my arguments and positions.

I should mention he’s not the only one who responds to criticism of the DMCA by refuting straw men. On my own panel today, Emory Smith of the Business Software Alliance seemed not to have listened to the others on our panel, as he spent virtually his entire speech refuting the position that piracy was hunky-dory– a position that no one on the panel had taken. The defenders of the DMCA seem determined to avoid having a serious debate about the law’s effectiveness or unintended consequences. It’s so much easier to simply paint those who disagree with them as “copyfighters,” “intellectual property skeptics,” or IP anarchists who want to “abolish IP rights in favor of some mystical commune wherein all IP is free as the air and creators are compensated by government.”

I think that “cynical” is a reasonable way of describing this rhetorical strategy. I can only imagine that they’ve adopted it because they don’t have good responses to the actual arguments against the DMCA. For example, despite several requests, Mr. Ross has yet to substantiate his claim that I made a mistake when I wrote that “the DVD CCA never approved any software DVD players for Linux [and] that the DVD CCA must approve DVD software players.” I think documenting that accusation might be a good starting point for a debate based on facts and arguments rather than name-calling.

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