March 11, 2009  ·  Lessig

The usually exactly right Karl Lenz writes: “Is Lessig Shilling Against Open Access?” He laments the “damage done to the goodwill of the other side by this baseless smear.”

This is missing the point, twice.

The merits of the “open access” argument stand or fall on their own. There was a fear of some (but discounted by others) that Conyers had introduced the bill to enable it to be swept into another bill without further process. Whatever else, given he has now defended the bill to remedy the same lack of process that led to the rule the bill attacks, it is doubtful that will happen.

But I do disagree with to the suggestion this is a “baseless smear.”

It is a smear, no doubt, in the sense that it is a criticism, not so much of the man, but of a system. It is this system that produces enormous cynicism about how government works. That Conyers receives money from the auto industry and votes with their interests isn’t the sort of thing that produces cynicism, just as the fact that Senator Grassley receives money from farmers and votes with their interests isn’t the sort of thing that produces cynicism. Those sort of contributions — and votes — are the very best one could expect in a system of privately funded elections — funding that fits the interests of the district; votes that track the interests of the district.

But if there’s a very best, there’s a very worst — funding and votes that have nothing to do with the interests of a district. That’s what this bill is. Are the votes of the 14th District in Michigan benefitted by a bill that will increase the cost of access to government funded research? Is protecting publishers the principle that got John Conyers elected to Congress? Is this really — as Lenz suggests — one of his “convictions”? Is John Conyers really a Congressman who has as a “conviction” the idea that we should pay for scientific research twice? That publishers whose business model conflicts with the best business model for science in the digital age deserve Congress’ protection?

The whole point in this criticism (aka, “smear”) was that there was no good reason for the support of this bill beyond doing a favor to an important industry. And to do a favor for an industry by supporting a bill that has no good reason behind it (and 33 Nobel Prize winners, and the current and former head of the NIH against it) while receiving 2x the contributions of those who didn’t sponsor the bill is exactly the behavior that produces such cynicism.

So it is an attack, no doubt. But it is certainly not baseless. “Baseless” would have been to suggest Conyers was bribed. Of course he wasn’t — Conyers is a hero of mine and my kind (libs); we don’t believe our heros are criminals. It is instead an attack on precisely the behavior that leads 88% of the people in my district to believe “money buys results” in Congress. Conyers voting to protect GM doesn’t produce that cynicism. Conyers voting to protect a bunch of foreign publishers does.

Now if you’re someone like me who believes that this cynicism is THE problem in Congress today — if you believe that eliminating it, by restoring a system that could lead people to believe Congress was doing what it doing because of the voters, or even because of stupidity, but not because of the money, was the most important thing that Congress could do now (and especially now when all the attention that should be focused on the importance of stimulus is now focused instead on 8,000 or more earmarks said to have “larded up” the bill), then what Conyers did is precisely the sort of thing that needs to be attacked. Not just him (we’ve got others coming). Not just Democrats (we’ve been criticized already for being too harsh on Republicans). But him and anyone else who gives us a chance to point to the kind of relationship that draws this critical institution into doubt.

But I’ll confess, this isn’t a role I enjoy. It is my nature (nothing to be proud of, but this is the reality) to ingratiate, not criticize. I don’t have the courage of a Stallman. Too many of my cycles are focused on how or whether what I do will affect whether others like me. I am more comfortable on the inside than on the outside. And when we tried to find allies in this battle, I totally understood those who didn’t have the stomach for this. “Coward” is a name I’ve given myself more often than any other.

But I really really mean what I said at the end of the first post on this “baseless smear”:

This is no time to play nice.

Our government is corrupted. That is not to say members accept bribes, or that legislation is the product of a quid-pro-quo: fewer accept bribes today than at any point in our past; I doubt any legislation is the product of a quid-pro-quo. These are good people, in a corrupted system — a system that doesn’t focus where it should (on the views of the citizens of each district) but instead focuses where Members must (on where they need to raise money).

No one not benefiting from this system could defend it. Each of us, I believe, has a duty to change it. And change here will require something more than happy, glad-handing, smiles – however miserable that makes wimps like me.

  • Jardinero1

    Yes, our government is corrupted. So, lets limit the size and role of the government. That makes more sense than increasing the reach of the government into the funding of elections. We currently have some public funding of elections. Before calling for more, wouldn’t it make sense to examine the record and see if it has made a difference, for better or worse.

    Maybe the professor would consider nullifying the 17th amendment and reinstitute the direct appointment of senators by the various states. Those were the halcyon days when state legislatures sent their philosopher kings to the Senate. There was never corruption, as defined by the professor, in the Senate, when Senators did not stand for election.

  • JustinOpinion

    @Jardinero1 (comment #1): Limiting the size/power of government can solve problems, but doesn’t address Lessig’s concerns. To the extent that a government (even a small one) has power, that power can be corrupted in the way that Lessig describes. So his call to alter the government’s dependence on campaign financing would apply regardless of size. (Besides, I would argue that preventing government from accepting certain kinds of money is, in fact, a way to limit government’s power.)

    Also, switching from election to appointment of officials would just be trading one problem for a worse problem. Lessig is careful to specify that the current system is less corrupt than at any previous point in history. But that is not to say that it is perfect. And if it can be fixed, then is it not our duty to fight for those fixes? To end the institutional corruption that is patently obvious to anyone outside the system?

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

    Lessig misses the point that

    one CAN’t both take a side (with 100% certainty???) AND accuse the judge/jury/umpire/teacher of corruption

    unless you want to look like (be) a fool or bad sport like

    John McEnroe = Lessig

    and damage your cause even when you got a bad call.

  • A Cynic

    Lessig,

    I appreciate you sticking your neck out and standing strong on this one.

    Thanks

  • http://sethf.com/ Seth Finkelstein

    @Steve Baba – Not quite. One can certainly be a partisan and accuse the other side of corruption – that’s politics, and arguably a major part of a functioning system, having various sides expose corruptions in other sides, for explicitly partisan reasons.

    However, what one can’t do, effectively, is escape the politics of implications of personal accusation of corruption.

    Look, here’s an example “on me”. I believe blog-evangelism is a disgustingly “corrupt” system, with “A-listers” profiting from exploiting people. I take great pains to make my critique about the system, not anyone in particular. But I get a lot of flack from people who say either I have to name names or I’m attacking a straw-man, and if I do name names, well, I’ve besmirched the character of the wonderful A-lister who has a big audience, much more influential than mine. It’s inherent in politics.

  • http://maxolasersquad.com/ Maxo

    Keep up the good work Larry. The world needs more people like you.

  • Jardinero1

    Politics is an inherently corrupt process. Power is inherently corrupting.

    Funding elections with public money will not change either axiom. It will only shift the patronage and its attendant corruption to other areas heretofore unknown. It will keep those currently in power, in power, indefinitely.

    I ask repeatedly on this blog for the reformers to examine the evidence. This nation has had the FEC, campaign finance reform and public funding of elections for thirty five years. Has it made politics less corrupt or more so. What will more of the same result in? Will no one answer?

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

    @ Seth – I agree, unlike Obama, and many others nominally against negative campaigning, that negative campaigning (with real negative evidence) is a good (maybe tasteless) part of the process.

    My previous entry, like all blog posts written in a minute, was badly worded. I should have added to accuse “without SOLID evidence” or you look like McEnroe – and reduced the claim to partisan reforms are less effective (sometimes ineffective or counter productive like Lessig may be) than nonpartisan reformers.

  • http://sethf.com/ Seth Finkelstein

    @Steve Baba – I don’t see that “partisan reforms are less effective … than nonpartisan reformers”. Pragmatically, I tend to think both are needed and neither one is effective without the other.

    The problem here involves partisanship as an issue that if one argues about systemic corruption, people don’t take kindly to the implication that they are being influenced by anything other than pure rationality. There’s no way to escape that issue itself, see my point above. Please don’t try to make it a slam on Lessig for being partisan. Any critic of a social system faces this issue.

  • Justin Miller

    What I like about Lawrence Lessig is that when he clearly see’s a problem in our systems of government he doesn’t approach the problem from an ideological stand point and try to transform our system into a more conservative or liberal government. Instead his thought process and the culture behind the Change Government movement is that of our founding fathers in many ways. He, they, we, are looking at the problems of our current system with checks and balances in mind and with an understanding of the human element that so many ideological solutions lack.

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

    I may be pushing the McEnroe analogy too far, but if McEnroe got together with his opponents and formed a nonpartisan group for better umpiring, people would take them seriously and not laugh at a bad sport on the court insulting others.

    But whatever happened to McEnroe? Didn’t he write a book? Did he ever offer an explanation (I was 100% sure I was right (like Lessig)) or did McEnroe ever apologize to umpires and kids for setting a bad example?

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

    and the current and former head of the NIH against it

    P.S. There’s no current head of the NIH. Dr. Zerhouni resigned last year; Obama has yet to nominate a new director. But both Zerhouni and his predecessor, Dr. Varmus, are against it.

  • http://sethf.com/ Seth Finkelstein

    @Steve Baba – Obviously there would be the cheap-irony jokers who would go for the snark “Ha, ha, nasty people with bad tempers talk about fairness! (of course, only mild-mannered milquetoasts could ever have anything worthwhile to say about the topic)”. But like him or not, McEnroe just might have good points to make precisely because of who he is – and should the cheap-shot snarkers be able to exercise a kind of Heckler’s Veto? Surely you see a problem there.

    I don’t know what he said about himself, but would it matter?

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

    On more serious than McEnroe note, Lessig or anyone forming an advocacy group should get a how- to-form-an-advocacy-group book (by a paid author) and go to the partisan or nonpartisan section and read the advantages of being nonpartisan:

    1) you can get members from all political parties, 2) people will take you seriously and not as a shill and 3) tax advantages 4) you can deal with all politicians …

    Here in Washington DC the vast majority of groups of all types – Save the Whales, Cannibals, Rich… all CLAIM to be non-partisan, even the ones that aren’t.

    Also try not to piss off members by taking issues on non-core issues to your group.

  • Rick

    @Jardenaro1
    “….wouldn’t it make sense to examine the record and see if it has made a difference….”
    There’s information out there. See here and here. I don’t think Lessig (or anyone for that matter) expects that citizen funding is an obvious or easy method of preventing corruption. The central issue, though, is that something has to change for the better.

    @Baba
    You’re out to lunch on McEnroe. Yes, he had the bad boy rep. But he’s gone on to be one of the best expert TV commentators in the game. He’s also made a TV commercial with the linesman from the famous screaming incident.
    More importantly, though, he was a key factor in making tennis realize that with TV and instant replay it needed to improve accuracy or lose credibility with fans. Hence we have electronic devices that are extremely accurate. Perhaps the better metaphor is that government, like tennis, needs to eliminate or minimize “bad calls”……. or lose credibility.

    But back on point….

    I’ll admit to having had some ignorance of this issue so I’ve spent the past few days trying to understand it. The bottom line is pretty obvious. Conyers and the publishers simply don’t have a case on merit. Indeed, they don’t seem to even offer one apart from misleading facts, distortions, fear of the supposed unknown, or “status quo has served us well.” We see this pointedly in Conyer’s Huffington rebuttal in which he offers no tangible arguments for his position. He welcomes debate which he (and they) never intend to have. It’s abundantly clear that his intention was/is to slip this bill through as quietly as possible.

    As to the contentious nature of the “discussion”….. so what? This nation is built and has prospered on open debate, often virulent if not outright violent. Indeed, it’s arguable that the left bears some responsibility for the state of the country today by choosing to remain academic, intellectual, the “bleeding-heart left”;….. possessive of all the righteous concepts but perceived by the general public as lacking the balls to actually govern…….famous for showing up with knives at a gun fight. Perhaps Conyers, knowing all this, was startled at the Lessig/Eisner directness. A couple of guys show up suitably armed for battle so he cries “foul”?
    The respect that he requires was shown in the previous itterations of his efforts toward this bill yet he lumbered on, ignoring facts, figures, and testimony like a tank through light infantry. Now he’s incensed that someone shows up with a bazooka.

    Still the nagging question remains: What IS going on here? On the whole we can’t label Conyers a “bad guy.” The publisher contributions are significant but, still, they are only circumstantial evidence, not of major significance to him financially. There’s no clear merit to the bill yet he persists doggedly. He alludes to complex issues…… these issues?….. or perhaps other issues? Are there larger issues at play here that aren’t part of the conversation?

    Don’t know. But ACTA comes to mind. Clearly ACTA seeks to provide protection for intellectual property, much of which is American wealth, existing and potential. Is Conyer’s bill a “sweetener” to help get foreign interests on board?

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

    I must have missed that McEnroe was a tennis reformer and not a jerk.

    Likely people will miss the same about Lessig when he starts his articles with “Embarrassment of a Bill” – nobody expects more than insults calling people corrupt.

    Also people with different views on copyright or people who supported Clinton, McCain or one of the others are not going to help Lessig’s “reform” organization.

  • http://k.lenz.name/LB Karl-Friedrich Lenz

    (Crossposted at my own blog with HTML links removed here).

    We seem to disagree on whether the original criticism is a “baseless smear”. There is no way to disagree however, that that was exactly the impression John Conyers got, since that were his exact words in the last line of his reply.

    My point is that you don’t get anywhere with your opposition to that particular bill by throwing around accusations like that. Any influence this had on John Conyers would be highly unlikely to be in favor of rethinking his position on Open Access legislation.

    And if you believe that reforming the way Congress works is the most important question right now, it might not be the smartest move ever to effectively remove most chances of influencing or even talkiing to John Conyers, who would seem to have some power when deciding over these matters.

  • http://h.lenz.name/LB Karl-Friedrich Lenz

    (Cossposted at my own blog with HTML links working.)

    We seem to disagree on whether the original criticism is a “baseless smear”. There is no way to disagree however, that that was exactly the impression John Conyers got, since that were his exact words in the last line of his reply.

    My point is that you don’t get anywhere with your opposition to that particular bill by throwing around accusations like that. Any influence this had on John Conyers would be highly unlikely to be in favor of rethinking his position on Open Access legislation.

    And if you believe that reforming the way Congress works is the most important question right now, it might not be the smartest move ever to effectively remove most chances of influencing or even talkiing to John Conyers, who would seem to have some power when deciding over these matters.

  • Rick

    @Karl
    You choose to play the traditional progressive hand: Lets all play nice and surely the merits of the case will carry the day. The approach plays perfectly to Power that does not want to be challenged and seeks to “pull rank” when it is. If that doesn’t work, “cry foul” is the next move. Throw is “partisan attack” and you’ve pretty much got the entire vocabulary of the cornered politician. Point is……your assertion that Conyers saw the criticism as a “baseless smear” is an assumption on your part. The equally valid assumption is that Conyers simply meant to protray it as such. We can’t read his mind but we can say that of the many tones that Conyers might have chosen for response, he chose to appear incensed and escalate. Interesting.

    As to Conyers rethinking. It would seem that he’s had more than ample time to do so before now. Yet he persists with a bill virtually identical to the original. Okay, if it isn’t suspicious contributions then what is driving him? Surely such a position, perverse in the face of logic, might be explained. If it isn’t we’re driven right back to our suspicions. The Lessig/Eison tactic was to draw Conyers out. A lesser effort would simply have left him entrenched.

    As to your notion that this may be a strategic blunder, I don’t buy that either. I don’t see any “negotiated settlements” happening with progressive issues. We may well have an ally in the White House but that remains to be fully seen; so far so good. Congress is another matter. There is a Democratic edge, and that’s a good thing, but we have a Congress elected though traditional politics, fully expectant that after this bumpy spell things will settle down. They’ll address a few issues superficially, people will forget the rest, and they’ll get back to business as usual.

    Progressives and sympathetic moderates have spent the last eight years or so building information, data gathering, and interactive communities that give them an edge for the moment in the information war. Are you suggesting that they don’t use those assets? Or are you suggesting that they be used selectively according to the percieved “value” of the the congressman in question?

    And anyway, time is short. This is not an 8-year or even a 4-year window. It’s a one-year window of opportunity before the 2010 primaries. Bush will be ancient history, the economy will belong exclusively to Obama, and accommodation of the Right will begin. Bettting-on-the-come and living-to-fight-another-day are not viable strategies. Fight each battle hard. Then move on to the next one.

  • http://dysplastic-brain.blogspot.com Bob Calder

    @ Lenz – Open access to research funded by the U. S. Government at any level is not really a matter of debate any longer. What we are witnessing with attempts to head off open access may be a DMCA-like act of desperation. In any case, the behaviour of citizens, whatever they do for a living, has changed as they interact with increasingly democratcized channels of information distribution over time. The trend is obvious and resistance is indeed futile. This much is plain and I believe we all agree on the ubiquity of the conversion of these cultural artifacts to digital form.

    What we don’t agree on is the right of last year’s concessionaire to be this year’s gatekeeper. Certainly a graceful segue into a different business model is the proper solution, but at whose expense? If the bill and the sponsor view it as a first step in a series of negotiations, that’s an issue for another politician as the previous poster, Rick pointed out. But as a step in the negotiation process, it is more like a tantrum and deserves to be treated as such.

    As we see in the courts, it will be many years before we see a political body that is prepared and knowledgeable in issues of advancing science and technology. Perhaps it is naive of me to think people who are afraid of the future and unwilling to adapt should admit it. But there is no reason to kick LL in the crotch and pretend what they are doing is normal. Understandable, yes. Politically appropriate? Frankly it only looks like a delaying tactic.

    I don’t want to draw inappropriate parallels, but look at the way Al Gore was treated publicly over his advocacy on global climate change. You have a situation where a long-term trend is recognized by people you pay to research stuff you don’t have the inclination to learn, then ignore what they have to say – or – “Decide for Yourself” the immortal motto at Fox News. Obviously the journal publishing industry has a long way to go before they throw money to the think tank prostitution industry the way ExxonMobil does but it’s worth considering. Are we indulging in self-destructive acts?

    There is evidence that humans will need every single minute available to them in order to learn to deal with earth’s changing systems. Delay in this (global warming) case may end up causing irreparable damage to civilization. Delay in the case of open access holds the potential of hindering the movement of information to places we never foresaw, preventing developments we never imagined.

    Some of this perspective comes from attending the open access symposium at the 2005 AAAS meeting in Washington, some from watching what the Department of Energy and others (ad ex Deep Web Technologies) think about the future of collaborative research over the last few years, and some from observing the evolution of knowledge systems online.

  • http://www.ok-iraq.com/vb/tags/%CA%DD%D3%ED%D1%20%C7%E1%C7%CD%E1%C7%E3/ تفسير الاحلام

    Lessig misses the point that

    one CAN’t both take a side (with 100% certainty???) AND accuse the judge/jury/umpire/teacher of corruption

    unless you want to look like (be) a fool or bad sport like

    John McEnroe = Lessig

    and damage your cause even when you got a bad call.