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.

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