April 30, 2008  ·  Lessig

lessig_as_stalin.jpg

Julian Sanchez has a piece in Ars Technica analyzing my recent outing by PFF as a communist. Or socialist. Or quasi-socialist utopianist. Whatever. I’ll leave the criticisms of the criticisms of my scholarship to the reader to judge. One perfectly framed point of the piece, though, is something I completely agree with: There is a divide in the libertarian camp about IP extremism. And when, as I’d put it, “libertarians … ‘start to defect’ from a strong-IP stance, copyright incumbents [will] be left with only their wholly-owned-subsidiaries as defenders.”

Then, I suggest, real progress will be made.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Given the IP privileges of copyright and patent suspend the public’s cultural liberty, I don’t think what you describe is a division in the libertarian camp, but continuing attempts by the incumbents to confuse those whose liberty is suspended, by resorting to semantic abuse of terms like ‘libertarian’ and ‘property right’ – double-speak if we want to get Orwellian.

  • http://sethf.com/ Seth Finkelstein

    Then, I suggest, real progress will be made.

    Nah. Libertarians are nowhere near as influential as might be thought from their incessant noise on the Net.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Sometimes lobbyists will misrepresent themselves as libertarians in order that their arguments get their foot in the door of those who find libertarianism appealing – or who simply think that liberty is probably a ‘good thing’ (albeit in moderation). Let’s not tarnish ‘libertarian’ by allowing the likes of the PFF to pretend membership.

    Seth, your pessimism against the merits of libertarianism and its proponents is supportable, but only because humans are far from perfect in suspending their self-interest (baser natures) in accord with any philosophy they’d propose all would best live by. [ I realise this defence is simply going to end up on your list of invalid defences. ;-) ]

    But if humans are prone to corruption, you still have to figure out what system is most able to withstand it or most easily able to contrive a repair in its event. Thomas Paine made a pretty good stab at this a few years ago. I understand remedying corruption in political systems is now an active interest of Professor Lessig.

    As to influence and incessant noise, bear in mind that it is possible for the Web to naturally select a more cyberspatially conducive philosophy among its more integrated denizens than those focussed on the politics of the physical world. What may be noise to jaded cynics may harmoniously resonate with technological optimists. Moreover, influence can be overrated – sometimes things are simply self-evident. ;-)

  • http://www.negativesoundinstitute.com gurdonark

    Having read a number of critiques of Creative Commons and, now, Free Culture, from the left and the right,
    I’m amused that what I view as a fundamentally moderate position draws such extreme invective.

    One point is simple. There is nothing particularly radical about a voluntary movement by creators to donate work into a Creative Commons through use of liberal licensing within current copyright law. Those who choose not to so license are not affected by any disadvantage, except that arguable disadvantage that people who donate photos and music may depress the market for sellers of the same creative material.

    Similarly, the injection of research and otherwise patentable ideas into the public domain is as old as academic research institutions. There is nothing particularly “Lessig” about this practice–all you’ve done, in collaboration with others, is point out its virtues in an analytical context as a “science commons”.

    The second point for which you advocate is only slightly more novel–the idea that extensions in protected terms and artificial extensions in what is protectible may, in the long run, be disadvantageous to all. This is a viewpoint not at all inspired by any Soviet, or, indeed, any utopian pastoral anarchy. What is the “payoff” as a rhetoric device in portraying your idea as a particularly “left” dialectic? Similarly, when Creative Commons comes under fire from the “open source” movement for being offering people to utilize licenses in the existing copyright regimes to ensure certain protections, it’s hard to see you or CC as pawns of government exploitation of freedom of information.

    I do not wish to overthrow all IP laws, as I think they can and do serve a valuable function. I’d like to see them reformed around the edges (e.g., an end to Mickey Mouse copyright term extensions and a different patent examination/re-examination process, as well as relief on fair use clarity). In the main, though, CC licenses is a way to achieve a “velvet revolution” in which a dedicated body of creators, scientists, and audience create a new set of publicly useful ideas in a liberalized version of “permission culture”.

    I get disappointed when I read extreme takes on your work, because there is a legitimate debate about the
    proper boundaries of IP law to be had. I also get disappointed because there is a legitimate cultural movement to create this Creative Commons underway, and distortions advance neither the cause of the proponents nor the cause of the critics. One can argue that creators should not license CC–it’s a perfectly reasonable argument to make. But that argument is centered in the real-world of daily life more than in the dream world of 1920s left/right polemic.

    The people I know in my personal life and in business see CC and IP law as a real thing, and not a think-tank debate about imaginary cloud-castles of polemic. I wish that more debaters lived in this real world. I like about your work that I think you do live in this real world.

  • http://www.daviddfriedman.com David Friedman

    You write: ” There is a divide in the libertarian camp about IP extremism.”

    I think that understates the case. There has long been a divide among libertarians about IP itself. Some see it as the purest and most morally defensible form of property, on the grounds that it is produced by the human mind without using any unproduced resources, such as land, which one might have difficulty justifying the ownership of. Others see it as a clear violation of rights, on the grounds that if something such as a book belongs to me, I have the right to do with it as I will.

    I don’t think any libertarian would object to voluntarily putting something into the commons, although I suppose some Objectivists might view it as an act that one should be permitted to take but should choose not to take.

  • http://sethf.com/ Seth Finkelstein

    David, in my more time-wasting moments, I’ve tweaked Libertarians that no true no-force-or-fraud government-is-bad Libertarian should ever be able to support copyright. It should be an utter abomination to them that MEN WITH GUNS will come after you for saying something that someone else said before – they should consider this the most atrocious violation of Free Speech.
    That they don’t have that view shows the whole thing is really about business (but we knew that already).

  • http://www.digitalproductions.co.uk Crosbie Fitch

    David, where would you place people such as me who straddle the divide? We who see intellectual work as both the purest and most morally defensible form of property, and the privilege of copyright as a clear violation of the property rights of the purchaser of a book.

    There are only three things the state should prohibit when it comes to the publication of artistic expression, impairment of truth (plagiarism, libel, etc.), violation of privacy (IP theft), endangerment of life (incitement to violence).

    These arguments aren’t changing the world. The world is changing, and the arguments compete to explain the new one.

    Of course, the incumbents of the old world can mistake the power of argument as sufficient to prevent change.

  • http://www.krishworld.com/blog/ Krish

    When I compare Libertarians to Religious believers (for their irrational belief system), they get furious.. Such talk only makes me feel that I am right. If this is socialism, I am a proud socialist. I would any day be a socialist than believing in something irrational and blind. Probably, it is time for us to change the definition of socialism in dictionaries and wikipedia.

  • http://secondthoughts.typepad.com Prokofy Neva

    I was just booted off the air from the News Gang video show this week for suggesting Lessig is Marxist. I had no idea how politically-incorrect such a sentiment is. Have a listen, toward the end of the show:
    http://newsgang.net/gangitem/id=17944&from=audio

    Oh, I realize that Lessig followers are furiously loyal and Lessig himself is hardly going to admit to any Marxian leanings, but I thought this was still something that could be debated — after all, extremist libertarianism has a lot in common with extremist socialism.

    And…You do have to wonder about someone who is constantly accused of being “socialist” or “Marxist” or at least extreme leftist, and constantly wriggling out of it, and constantly detracting his critics and labellers as being buffoons or McCarthyites. Perhaps where there’s smoke there is fire?

    I thought it was self evident that Lessig exemplified the “expropriate the expropriators” motif of the Bolsheviks (i.e. wrest the copyright from these old dead white guys, donate work for free into a public commons to undermine sales of proprietary work). I thought that didn’t need some special explication. Lessig himself is awfully coy about cases like the Molotov photograph, that was used as an emblem at i-Commons, and which fanned not only copyright theft, but glorification of armed and violent revolutionary struggle. Or did I miss Lessig’s dismay that his followers stole photographer’s works and promoted violence?

    I thought it was self-evident also that his Creative Commons was essentially a kind of uravnilovka, a great forced egalitarianism, in that it reputationally-enhanced the volunteer givers, and undermined the sales of those who kept selling proprietary works. The idea was, I guess, to get everybody into such a commons like a giant stone soup and then, oh, nobody would ever be hungry again.

    Creative Commons, however, has basically turned out to be a tip jar, and hasn’t helped people make sustainable incomes. Having an easy way for people to attribute works is a cover for the failure to sustain people with this method — the Wikipedia debates of some moderators of this system who quit in disgust of its complexities and infighting seem typical of the sectarianism that such freebie socialist utopian ideas always seems to be generate.

    But most of all, we know that Lessig’s ideas lean toward the Marxist by what he did at Second Life. We who live and work in Second Life know this up close, personal, 3-D, streaming, and real, not virtual. Lawrence Lessig has been glorified as the inspirer of the Linden Lab concept of user-generated content. I suspect that he conceived of this challenge to game-gods in a virtual world largely as a kind of “stick it to the man” concept, to get these California software geeks to cut their prosumers into the profits.

    So LL and Lessig launched the concept of a user-generated-content (UGC) online economy of virtual objects and the world thrived and continues to survive, although it faces serious challenges. One major problem is that Lessig, after enthusiastically flogging the UGC concept and CC, never followed up. He was happy to have people have IP over their virtual creations, but did absolutely nothing about Copybot, the technical capacity of any streamed world to make anything you see copyable (much like the Internet). It simply didn’t bother him. If the world opensourced, reverse-engineered, or got copied out the wazoo, his faux concern for IP was nowhere to be found — either in him or his LL disciples. So, meh, IP promotion is as IP promotion *does* — when it came to crunch time, it meant nothing. The CC licensing machine has cobwebs on it in SL because few used it — people found it cumbersome and silly; the SL interface itself is a kind of rough CC license, and yet Lessig seems uninterested in the problem of how you really secure IP and how people who labour over creations really can make a living.

    In the end, the terrible weakness of the entire CC system, especially as exemplified in the tip jars and micro-payments of SL, drive people to sell out to corporations, to become part of giant content production teams, and to give up individual skilled artisanry. It makes virtual worlds a kind of neo corporate town of benevolent corporate dictatorship with controlled content and content makers. Like a lot of socialist utopianism, it leads to its opposite in a way.

    Oh, I suppose Lessig can’t be blamed for abandoning Second Life, which may have been an unpaid consulting gig only designed to add to his own reputation-enhancement and panel-invitation sheet, but leaving Creative Commons itself, well, I guess that stands for itself without commentary.

    I’m also heavily leery of Lessig’s lurching into the realm of unearthing corruption in campaign politics. I’m concerned at what appears to be a dislike of representative democracy in general, and a desire to dismantle this system completely and replace it with ostensibly decentralized, distributed accessible social media, that supposedly empowers the people, especially collaborative groups. He and Beth Noveck are on panels and blogs with these concepts all over, and they sure sound a lot like they’re down on the collective farm to me, fanning tribal, unaccountable groups to gang up on what they view as unaccountable institutions, and leaving the details very sketchy about how individuals, especially those who dissent against these privileged new online groups, can protect their rights. And I’ll be persuaded of the legitimacy of Lessig’s delving into issues of PAC corruption or even inefficiency if he also turns the lidless eye on to moveon.org PAC stuff to be even-handed.

    Molotov thought the Soviets could “beat the drought!” (that’s what the slogan on the poster says) although Soviet collective farming and environmental exploitation policies desiccated the land further. Collectivism and distributive justice and the concept that you can just “redistribute wealth” leave a drought from which it is hard to escape. The Twentieth Century is littered already with the corpses resulting from ideologies involving privileging groups — the collective — over the individual.

    P.S. The Soviet Union in fact had copyright, and gave copyright even to translators and paid royalties. But they selected who got to publish, filtered who was allowed into the Soviet Writers’ Union, and therefore essentially controlled the distribution of access to copyright.

  • http://www.gavinbaker.com/ Gavin Baker

    These guys (and others; see the Alexis de Tocqueville Institution) are basically coin-operated noise machines. Their job isn’t to inspire any real debate, to engage the populace or to advocate to lawmakers. It’s to cast aspersions. They’re high-class mudslingers-for-hire.

    I remember being told in elementary school that the best way to deal with bullies is to ignore them, so that’s the advice I offer here.

  • http://www.daviddfriedman.com David Friedman

    “and Lessig himself is hardly going to admit to any Marxian leanings”

    I’ve been trying for years to persuade Larry to admit to libertarian leanings. I’m not sure from comments here whether he actually did it while I wasn’t looking or is merely being accused of it. My interpretation of his attitude, long ago, was libertarian instincts hindered by a leftist self-image.

    Consider his basic argument, a book or two back, for treating the net as a commons–by which he actually meant a commodity, since he wasn’t proposing zero cost access. It was that if the people in the middle, the ones transmitting the bits, got a veto over what sorts of bits they transmitted, that would make innovation very hard, since there would be too many people whose agreement you needed before doing anything.

    I think he acknowledged–certainly he knew–that the counter argument was that what was being transmitted varied in ways that were relevant to the cost of transmitting it–burst vs steady stream, material where very low lag was important (real time games, distance surgery) vs material where it wasn’t (downloading), etc. So requiring the same cost for everything, or even specifying the cost structure, meant that some people were free to impose external costs on others without their consent. His conclusion depended on the judgment that the inefficiencies due to permitting that were less important than the inefficiencies due to the high transaction costs of innovation with the alternative system.

    What didn’t seem to occur to him was that he had just sketched the argument against zoning. There too, the individual’s decisions–what sort of house to build, whether to use his land for residence or commerce, and the like–can impose external costs on others. There too, requiring the permission of those others, whether directly or via variances in zoning, makes innovation hard. The same argument Larry was making for the net as a commodity, applied to land use, is an argument for strong individual property rights and against land use control. Once you take seriously the point that forcing people to take account of all effects of their acts on others means nobody ever gets to do anything, you undercut a lot of the arguments for a wide variety of government interventions.

    And now, since this is Larry’s blog, he can explain how badly I have misinterpreted his views.

  • Andrew Katz

    This post struck me as a spooky coincidence:

    I was at Larry’s (excellent, natch) talk in London yesterday, and I was idly thinking that there might be some mileage in transposing some Marxist theory (of which I know very little, admittedly) onto the world of which he speaks. Namely, the creators of culture, the geeks, being the proletariat, and the corporations running the internet as the bourgeoisie. There are a few parallels which might be worth pursuing. The surplus value which the bourgeoisie are exploiting includes personal data for example. I’ve never had much truck with Marx’s original theories of surplus value, but the idea of giving up privacy as a parallel seems initially compelling.

    Oh, and there’s the historic inevitability of the revolution, which is quite appealing as well, if less bloody than the one proposed by Marx.

  • http://www.socialsecuritybullshit.com Steve Baba

    If a political career is possible in the future, one might not want to refer to one’s self as “comrade” even as an (elitist) joke. – and one might not want to say “whatever” when called a communist/socialist….

  • lessig

    David, you’re certainly right about end-to-end (what we call network neutrality today) though I don’t support regulations that would block the ability of a carrier to charge for better service so long as the price was the same for all takers. And I don’t think I would disagree about the question as it applied to property rights either. The only issue that has ever raised for me is the appropriate level of judicial review.

  • barry payne

    a key point by lessig is that original creators of content can compete under net neutrality directly with other content owners, particularly with producers and distributors who represent original creators and performers – sometimes under exploitive contracts, without suppressing and indeed, greatly increasing the aggregate production of original works – lessig’s is a correct version of the principle that competition can drive resources to their highest valued use – hardly socialistic, it is anathema to socialism

    absent the government regulation of copyrights, creators could capture the economic value of their work only in unrealistic perfect markets as lump sum amounts to reflect their present value or from instant mass sales, where either must be sufficiently high to induce production of the works – instead, they would turn to heavy secrecy while distributing copies over time in tightly controlled transactions, which if insufficient to cover the reservation price of creators, would suppress production and resale of their work unnecessarily

    since the necessary perfect market conditions are not realistic, they are supplanted with government copyright regulation designed originally to remove the need for protective secrecy and replace the high transaction costs with open, accessible trade in public view over time necessary to compensate original creators and keep the works coming

    ironically, lessig is attempting to keep transaction costs down at the other end of the spectrum as well, generally beyond the realm of individual original creators and the property protection necessary to induce their works, into the arena where content prices, terms and conditions are set – either under the effective competition enabled under net neutrality, or the market power leveraged by some producers and consumers of content over others in the absence of net neutrality

    when factions like the mpaa, riaa and hulu attempt to undermine competition in the content market by undermining net neutrality, they are exploiting the same copyright that empowers individual content producers to compete head-to-head with them, turning it on its head to favor producers and distributors of content by suppressing or displacing some original content with others – theirs

  • http://dooooooom.blogspot.com/ Ian Brown

    The Cato libertarians have been against copyright overextension (particularly anti-circumvention laws) for years:

    http://www.cato.org/pub_display.php?pub_id=6025
    http://www.intellectualprivilege.com/book.html