I was reminded of this when I tried to discuss the § 512(a) "conduit" safe harbor with a copyright skeptic, Mr. Timothy Lee. After I responded, at length, to Mr. Lee's concerns, prodding eventually produced a reply that consisted mostly of the following:
[Y]ou[, Tom,] misread peoples' writing so frequently and egregiously that it's hard to escape the conclusion that you're not trying very hard to represent peoples' views accurately. So you can understand why I'm reluctant to invest a lot of time trying to clarify my views.
Ouch. But those harsh words describe their author better than their target. Simply put, they direct the reader to a debate in which Mr. Lee hurled reckless accusations of wrongdoing that (briefly) let him ignore flaws in the works of Professor Lawrence Lessig so obvious that they were soon conceded by Lessig himself.
Mr. Lee claimed that I had proven my eternal iniquity by challenging his claim that the works of Professor Lessig, particularly his book Free Culture, neither "demonize" property owners nor reveal any "quasi-socialist utopianism." Essentially, Free Culture argued that we should replace a consent-based system of private property rights and markets with the coercion-based taxation scheme advocated in Professor William Fisher's book Promises to Keep.
This Fisher scheme is bizarre. It argues that federal taxes should fund the production of sexually explicit photographs and videos--a.k.a. "porn." It would fund this federal porn by taxing content-access technologies like TiVOs and mp3 players at a rate inversely proportional to their marginal elasticities of demand. In other words, taxation would punish those who create products or services that people really like. It would also infest televisions, computers, the Internet, portable players, and home stereos with federal spyware pervasive enough to ensure that otherwise law-abiding citizens could not "semi-deliberately forget to report" their use of "pornographic or juvenile works."
Predictably, Mr. Lee barely defended either Lessig's rhetoric or Fisher's scheme on their merits. Lessig's slavery-and-Satan rhetoric is indefensible, and the Fisher scheme is utterly implausible, economically suicidal, absurdly dangerous and numbingly paternalistic: it is "quasi-socialist utopianism" incarnate. Yet Lessig has now advocated it twice--in Free Culture and again his new book Remix.
Consequently, Mr. Lee and his blog-buddies mostly launched themselves at the ankles of tangential arguments in my paper. But even those tactics backfired.
The Sloppy Hypocrisy of Selective Quotations.
Mr. Lee tried to prove my venality by linking to his own blog posts, including Selective Quotation in the Sydnor Paper. But it is unwise to accuse someone of "frequently and egregiously" misstating other people's writing by linking to a post that recklessly mischaracterizes the accused's writing three times. (I'll deal with the fourth next).
First, Selective Quotations made a very serious accusation: Mr. Lee claimed that another blogger had shown that when I claimed that page 161 of Code showed that Lessig had said that his "impulse is to sympathize" with leftists radically skeptical about property rights and markets, other text on that page showed that Lessig was describing "an anti-market view of which he declare[d] himself 'not convinced.'" As Mr. Lee put it, "If a scholar writes "I'm sympathetic to view X, but ultimately I find the arguments for it unconvincing," it's extremely misleading for someone to quote the first half of the sentence without mentioning the second half."
But had Mr. Lee actually read page 161 of Code, he would known that I had correctly described Lessig's views, while his second-hand source had, perhaps accidentally, misstated them. Here is what Lessig actually wrote (with emphasis added) to explain why individuals should have a property-like exclusive right in their personal privacy:
There are those, especially on the left, who are radically skeptical about a property regime to protect privacy. Property is said to commodify, to marketize, to monetize relations that are valuable on a very different scale. The last thing we need, these skeptics argue, is to have another sphere of our lives ruled by the market.
My impulse is to sympathize with this argument. But I am not convinced that anything is ultimately gained by this insistence on theory. We are not debating whether to move into a world where data are collected, used, and sold. We already live in that world. Given that we are here, how can we insure that at least some control is granted to those whom these data are about? I advocate a property regime not because of the sanctity of property as an ideal, but because of its utility in serving a different but quite important ideal.
In short, Lessig said that his impulse was to sympathize with leftists radically skeptical of property rights and markets, but that he was "not convinced" that this impulse should make property-like rights inherently objectionable in non-commercial contexts. Lessig's "impulse" thus was, as I said, "to sympathize" with what Mr. Lee's source had fairly described as an "anti-market view." Those who actually read this passage cannot accuse me of deliberately mischaracterizing Lessig's actual views.
Mr. Lee's remaining two "selective quotations" were nothing of the sort--just quibbles about the "fit" of particular analogies. But even here, Mr. Lee's failure to check sources backfired.
For example, Mr. Lee claimed that another blog-buddy, Mr. Masnick, had "pointed out that Lessig's [analogy between property rights and the pesticide DDT] wasn't as outrageous as Tom seemed to think." Wrong: Had Mr. Lee checked sources more reliable than a TechDirt tirade, he would have known that other scholars criticizing Lessig's property-rights-are-DDT analogy had already shown why it--and Mr. Masniak's witless "defense" of it--backfired affirmatively. See Julia D. Mahoney, Lawrence Lessig's Dystopian Vision, 90 Va. L. Rev. 2305, 2324-26 (2004).
Indeed, this analogy between property rights and DDT is absurd. Owners of property rights can waive their default effects, in whole or in part, in order to achieve productive outcomes--and they do so routinely. Consequently, DDT and property rights would only be analogous if people applying DDT could choose to enforce its effects upon mosquitoes, while waiving its effects on birds. Were this possible, DDT would not present the difficult questions that it does in a world in which people cannot force chemicals to behave like property rights.
Finally, Mr. Lee claimed that another blogger had showed that I was wrong to analogize Fisher's surveillance scheme to that of Orwell's Thought Police because Fisher would target only a "representative sample" of the population. Wrong again: had Mr. Lee checked his source material, he would have known that Thought Police surveillance was also based on sampling: "There was no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork...." George Orwell, 1984, at 2 (Plume ed. 1983) (1949).
Moreover, Fisher's account of the sort of surveillance needed to nationalize the production of expression is absurd. For example, Neilsen must pay people in order to install monitoring equipment that records who watches what. Nevertheless, Fisher cheerily claimed that Neilsen monitoring thus proves that people who must be paid to submit to limited, private monitoring would volunteer to submit to remotely activated governmental monitoring so pervasive that the submissive could never "semi-deliberately forget to report" their use of "pornographic or juvenile works."
In short, Mr. Lee's three accusations backfired three times because of his three failures to verify sources and the validity of suspect accusations. Then, his self-parody began:
These examples strikes me [sic] as a serious problem. One of the basic obligations of any scholar is to present one's opponents' quotes fairly and in context. If a scholar writes "I'm sympathetic to view X, but ultimately I find the arguments for it unconvincing," it's extremely misleading for someone to quote the first half of the sentence without mentioning the second half.
The reader of any scholarly paper is to some extent at the author's mercy concerning the accuracy of the other work that paper discusses and criticizes. The reader will rarely have the time, and should not be expected, to read the source material to make sure it's being characterized accurately.... Future readers could be forgiven for wondering how many other cases of selective and misleading quotation might be lurking in the [Sydnor] paper, and whether it's worth reading a paper whose every quotation has to be taken with an enormous lump of salt.
More harsh words, but, again, they condemn only their juvenile author--whose thundering puritanism indicted his own reckless incompetence.
Nevertheless, the humor in parody flows from a truth being revealed or mangled. And Mr. Lee mangled a big one: Reasoned debate does require principles to govern the relationship between authors, their sources, and their readers. And readers can question the integrity of authors who egregiously and repeatedly violate these principles.
To be sure, self-parody is inevitable if authors describe those principles in Mr. Lee's overwrought, puritanical terms. Nevertheless, such principles do exist, particularly for those who claim specialized expertise or scholarly dispassion. Consequently I could agree that IF a work of "scholarship" repeatedly mischaracterizes important sources, and IF it does so when an honest discussion of those sources would undermine the scholar's central thesis, THEN readers could fairly infer that the scholar's work was more broadly suspect.
But Mr. Lee seems unable to agree on even this narrowed version of readers' rights. In fact, Mr. Lee appears to believe that readers are almost never entitled to doubt authors who misrepresent their sources if those authors are copyright skeptics.
That conclusion follows from Mr. Lee's fourth accusation. My paper tried to show that the excessive fondness for concentrated government power evident in Free Culture's advocacy of Professor Fisher's absurd scheme was also evident in Lessig's earlier books, Code and The Future of Ideas. Mr. Lee argued that it was unfair of me to try to prove this by quoting, among other passages, Code's repeated apologies for, and even celebrations of, the effects of communist dictatorships upon their citizens.
This debate's topic alone reveals both its absurdity and its outcome. If Lessig advocated greatly increased governmental control of the Internet by painting smiley-faces on the ruins of the Berlin Wall and boats full of fleeing Vietnamese refugees, then such conduct would suggest a "quasi-socialist utopianism."
Nevertheless,, when debate about "source materials" shifted from me to Lessig, Mr. Lee suddenly became an apologist for authorial abuse. Suddenly, it became just wrong for a reader (like me) to criticize an author (like Lessig) just because that author had repeatedly mischaracterized critical "source materials" that, if characterized fairly, would have undermined his central thesis.
Consequently--within the same post-- Mr. Lee was pronouncing a copyright-supporting author's duties to readers and "source materials" in overwrought, puritanical tones, while decreeing that readers must always assume a copyright-skeptical author's good faith if even the most implausible of excuses could rationalize part of a pattern of grossly mischaracterized "source materials."
The resulting "debate" was absurd and self-destructive. Defending another author's most indefensible claims is foolish: the other author may cut his losses before you do, leaving you looking like a witless parody of everything that you purportly believe. Predictably, in his new book, Remix, Lessig proved himself more savvy than Mr. Lee and other "libertarian" defenders of the vast "apology for regulation" that now concededly pervaded Code, The Future of Ideas, and Free Culture.
The Unprincipled Defense of the Indefensible.
In his book Code, Lessig chose to compare the effects of communist dictatorships and (relatively) capitalistic democracies upon their citizens. Lessig chose to do this repeatedly, and, indeed, he chose to use such a comparison to frame Code's overall thesis. Consequently, two fair questions arise. First, did Lessig accurately characterize what Mr. Lee would call his "source material"? Second, if not, is it fair to note and condemn Lessig's mischaracterizations?
Lessig's treatment of real-world communism is relevant to Mr. Lee's claim that no "quasi-socialist utopianism" affects Lessig's works. But it is more important for other reasons: Communism's quest to build an economy collectively directed, by the Wise for the collective good, ended with nearly 100 million people systematically murdered and billions more impoverished and enslaved. Indeed, communism's recurring atrocities changed the way that many people understood the relationship between the individual and the state.
For example, in his book Postwar, scholar Tony Judt noted that even in the socialism-prone nations of Western Europe, these recurring atrocities finally unraveled "the Master Narrative of the twentieth century"--the idea that progress and growth required a powerful state to direct both the national economy and individual lives toward the collective good. As Judt put it, "in light of twentieth-century history, the state was beginning to look less like the solution than the problem, and not only or even for economic reasons. What begins as centralized planning ends with centralized killing." This led to the re-discovery of the political and economic efficiency of private markets and the importance of individual rights, like private property rights.
Consequently, were Code trying to re-weave "the Master Narrative of the twentieth century"--to argue, yet again, that individuals and private choice are now the threat and government control the final solution--then it would be important to note whether Lessig fairly addressed the atrocities that discredited this "narrative's" last iterations.
Code began the "apology for regulation," (i.e., the advocacy of governmental coercion and control), that concededly continued throughout The Future of Ideas and Free Culture. Indeed, the central thesis of Code could be characterized as follows: Now that we have the Internet, individuals and private enterprise are the real threats and government control our only salvation. Code thus advocated government control of the design and operation of the Internet, government control of the production of expression, and severe tort liability to control, punish, and direct computer programmers.
So if Lessig made such arguments by repeatedly downplaying or mischaracterizing the recent historical consequences of concentrating government power--for example, if he exaggerated the "effective freedom" created by a government-controlled Internet--then this would seem to be a relevant ground for critique.
Nevertheless, my paper explained that Lessig's cheery characterizations of totalitarianism do not imply that he is a communist, Marxist, or Maoist:
To be clear, I do not think that Lessig, Fisher, or other Free-Culture-Movement academics and interest groups are literally 'communists' or 'socialists....' But they do still display the flaws that made communists and socialists dangerous to themselves and others: Inherent distrust of and contempt for the utility of bilateral private exchange conjoined with boundless, unshakeable faith in the potential wisdom, foresight, and benevolence of vast and coercive governmental power.
The "Effective Freedom" Bestowed by Communist Dictators Who Control the Internet in a Country with "Barely Any Infrastructure": Mr. Lee and others were particularly certain that nothing untoward could be fairly inferred just because Lessig had claimed that the victims of Vietnamese communism enjoyed an "effective freedom" so beatific that Lessig implied that millions of Vietnamese boat people erred by fleeing from Vietnam toward countries like the United States, a benighted realm in which Lessig says, "it takes a studied blindness for people to continue to believe they live in a culture that is free."
For example, Mr. Lee argued that no reasonable reader could possibly understand Lessig's cheery account of the "effective freedom" in communist Vietnam as anything but an "interesting" contrast between the differing "freedoms" enjoyed by Vietnamese and American citizens that made a morally neutral point about the difference between the "law on the books" and the "law on the street." As Mr. Lee put it, "an interesting point about the difference between de facto and de jure legal regimes."
Ignore, for now, whether a fair reading of pages 188 to 189 of Code could really see only this. Because whatever else he may have been saying, Lessig was surely trying to draw this de jure/de facto argument. So I agree that Lessig's cheery account of Vietnam and NamNet tried to distinguish the law on the books from the law on the street in order to argue for government control of the Internet.
But then Mr. Lee used "the tech policy blog dedicated to keeping politicians' hands off the 'net'" to argue that one cannot fault Lessig if his hymn to the "effective freedom" bestowed by a government-controlled Internet just happened to whitewash the resulting oppression that could have undermined Code's call for a government-controlled Internet. See Access Denied: The Practice and Policy of Global Internet Filtering 155 (2008) ("Of countries filtering political content, China, Myanmar, and Vietnam blocked with the greatest breadth and depth...."). Mr. Lee and other American bloggers thus ended up defending--and in one case, praising--the "effective freedom" bestowed by one of the Ten Worst Countries To Be a Blogger.
That was absurd: Lessig's sophistry in Code is worse than just dishonest, it is a travesty out of Oceania's Ministry of Truth.
I have spent enough time in a communist Asian nation to know that the de jure/de facto distinction imagined by Messrs. Lessig and Lee has never existed. Totalitarian states had and have no "law" worthy of the name: "law, in the proper sense, can be said to exist only if a citizen can take legal action against the state organs and have a chance of winning." Leszek Kolakowski, Main Currents of Marxism 1213 (2005). But citizens of totalitarian states had and have no chance of either winning or even obeying: "Totalitarian law had to be vague, so that its application might hinge upon the arbitrary and changing decisions of the executive authorities, and so that each citizen could be considered a criminal whenever these authorities chose so to consider him." Leszek Kolakowski, My Correct Views on Everything 32 (2005).
So there was no "law,"--on the books or the street--just, as Lenin put it, "'power that is limited by nothing, by no laws, that is restrained by absolutely no rules, that rests directly on coercion.'" Richard Pipes, Communism 149 (2003). Consequently, the "effective freedom" of Vietnamese citizens was the "freedom" to decide whether to kill their parents whenever the State might deem their deaths helpful:
As in Beijing, [Vietnamese] were found guilty simply because they had been accused by the Party, which never made mistakes. Therefore the best response was often to do what was expected of you: "It was better to have killed your father and mother and admitted it than to say nothing and to have done nothing wrong."
Courtois, et al., The Black Book of Communism 569 (1999).
And because such violence could be inflicted upon anyone, anytime, it did not have to be inflicted upon everyone all of the time: For example, Vietnam's dictators killed only about 1 million of their wards; the executions during their version of Stalin' purges are estimated at about 50,000, or 0.3% to 0.4% of the population. See Black Book at 4, 569-70. Yet those executions sufficed to warn millions: "If you do what we tell you even after our misgovernment has left you with 'barely any infrastructure,' then maybe we will not take your children or make you kill your mother":
People may or may not be jailed for telling political jokes; their children may or may not be forcibly taken away from them if they fail in their legal duty to raise them in the communist spirit (whatever this means). Totalitarian lawlessness consists not in the actual application of extreme measures always and everywhere but in the fact that the law gives individuals no protection against whatever form of repression the state wants to use at any given moment.
Leszek Kolakowski, My Correct Views on Everything 32 (2005). This terror was inflicted deliberately in order to create, "an extraordinary form of slavery: slavery without masters." Id. at 30. In other words, the threat of lawless violence was intended to terrify millions of people into walking silently through the ruins of their economies, infrastructures, and lives--in the hope that those ruining all of these might let the latter continue.
In Code, Lessig thus beheld "NamNet" being created in the aftermath of decades of terror intended to create "an extraordinary form of slavery: slavery without masters." The tourist Lessig then noted that, gee, the masters were often absent and the compliant slaves were often left alone--and then chose to praise their wonderful "effective freedom." Though it was, Lessig admitted, not "freedom as we in the West like to imagine it."
I would not deny Mr. Lee or others their right to read such words and see only warm sunshine, happy bunnies, and "an interesting point about the difference between de facto and de jure legal regimes." Indeed, I repeatedly proposed that we seem to disagree so profoundly that we should "agree to disagree" and move on. But Mr. Lee and others cannot: they still insist that any intellectually honest person reading Lessig's account of Vietnam and NamNet must see only sunshine and bunnies.
That I will not concede: Lessig made no "interesting point" by rearranging the words in one of Oceania's slogans. The Ministry of Truth claimed that "Freedom Is Slavery." In effect, Lessig claimed that "Extraordinary Slavery Is Effective Freedom." A reasonable reader could find either claim equally reprehensible.
The "Bland Communism" of Stalin and Khrushchev and the "Communism at the core of our Constitution": Nor was the Vietnam episode in Code isolated. Mr. Lee articulated no plausible excuse for Code's horrifying lament for the demise of the "bland communism" of Khrushchev and Stalin (emphasis added):
[After Soviet communism collapsed] needs were unmet. Security evaporated. A modern if plodding anarchy replaced the bland communism of the previous three generations: neon lights flashed advertisements for Nike; pensioners were swindled out of their life savings; bankers were murdered in broad daylight on Moscow streets.
A more grotesque mischaracterization of "source materials" seems almost inconceivable. Lessig sobbed that after the "bland communism" of 1931 to 1991, needs went unmet and people were swindled out of their life savings. Lessig "forgot" about bland communism's terror-famine that deliberately starved to death about 20 million people because they had worked hard to better the lives of their children. See generally Robert Service, Harvest of Sorrow (rev. ed. 2002). Lessig lamented that after bland communism, security evaporated and there was murder in broad daylight. Lessig "forgot" that bland communism executed the guilty and the innocent in broad daylight to prove that there was no "security":
Stalin's manifest objective was to show that there was no mercy. The people arrested, tortured, and executed in the 1948-52 period may or may not have had have had sympathy with some of Tito's policies, but that was not the point. The point was to drive it into the heads of every man, woman, and child that the slightest deviation by deed or thought was to be punished by death and not an easy kind of death at that.
Leszek Kolakowski, My Correct Views on Everything 131 (2005). Granted, I think that one of Mr. Lee's blog-buddies once claimed that Lessig's phrase "bland communism" could be understood to characterize only the aesthetics of Stalinism. But Lessig's words do not permit that "interpretation." Nor does it make any sense: as Tony Judt noted in Postwar, the "bland" blocks-of-concrete-boxes look later associated with the Soviet Union arose when Russia finally urbanized after 1952 and after Stalin, who was "bland" neither aesthetically or politically.
Nor could Mr. Lee defend Lessig's characterization of the finite duration of copyrights: "This is Communism, at the core of our Constitution's protection of intellectual property." (emphasis in original). That statement makes sense only if Lessig used "Communism" as shorthand for "collective sharing of valuable resources"--a disturbing re-interpretation of the "Communism" that had just murdered almost 100 million people and left billions more impoverished and enslaved. See Courtois, et al., The Black Book of Communism 4 (1999).
In summary, at best, Mr. Lee articulated only a few implausible excuses for some of Lessig's most horrific mischaracterizations of real-world implementations of socialism. In Code, Lessig chose to whitewash the consequences of excessive concentrations of governmental power. He chose to do this repeatedly. No one "frequently" or "egregiously" mischaracterizes Lessig's writings by noting these excesses.
And to repeat: I could still "agree to disagree" about all of this and assume that Mr. Lee and others really did see, in Code, only "an interesting point about the difference between de facto and de jure legal regimes," an anachronistic critique of the aesthetics of Stalinism, and a--well, a whatever their excuse for "Communism at the core of our Constitution" turns out to be.
But they cannot "agree to disagree": they just cannot concede that any reasonable reader could possibly see something disturbing in Code's relentlessly cheery re-interpretations of the effects of totalitarianism. But see Leszek Kolakowski, Main Currents of Marxism 5 (2005).
Lessig's (Inevitable) Retreat from His "Apology for Regulation."
Mr. Lee's staunch defense of the indefensible was also predictably self-destructive. Code really was an inexcusible tirade against private property rights, Internet commerce, copyrights, patents, and computer programmers that called for government control of the most of the critical resources of the Information Age. Indeed, Code is why almost all defenses of Lessig--by even his most devout acolytes--tend to begin, "Now, I don't agree with everything he says, but...."
It was thus inevitable that Lessig would--eventually--try to cover his own behind by admitting that his earlier works had displayed an excessive, um, fondness for governmental power and control: the point that my paper had tried to make by quoting Code's grotesquely "optimistic" characterizations of totalitarianism.
Perhaps not coincidentally, Lessig's new book, Remix, states:
In many ways, my own work could well be characterized as an apology for regulation. My first book, Code and Other Laws of Cyberspace, argued strongly that... it was extraordinarily important that the government help ensure that the values of cyberspace were our values....
[T]he last few years have convinced me that we must all be less optimistic about the potential of government to do good.
Lessig himself thus exposed Mr. Lee and his buddies--who style themselves as "libertarians"--as the unwitting and confused defenders of some of the worst excesses of the "apology for regulation" and the excessive "optimi[sm] about the "potential of government to do good" that concededly pervaded Code, The Future of Ideas, and Free Culture.
But, sadly, I must also note that Lessig called for "us" to "recognize the limits in regulation" nine pages after he again called for Congress to replace copyrights with the Fisher scheme.... One might thus wonder: can Mr. Lee and others now concede that reasonable persons could now perceive some "quasi-socialist utopianism" in the works of an author who--though he can still detect no excesses of "optimism" about "the potential of government to do good" in the bizarre scheme of Promises to Keep--nevertheless can concede that such excesses pervaded the extended "apology for regulation" that comprised his own work?
Granted, Lessig did not, (nor should he have had to), identify the specific passages that recorded the excesses of Code's "optimism." Nevertheless, it is now clear that my paper did identify the serious flaw in Code that Lessig himself would acknowledge only months later: the younger Lessig who witnessed the birth of NamNet, lamented the demise of Russia's "bland communism," and wrote Code was an "apolog[ist] for regulation" who was far too "optimistic" about potential of concentrated coercive power "to do good."
To Mr. Lee and his cohorts, none of this matters. Like them, Lessig opposes copyrights. (More precisely, Lessig opposes the Framer's idea of granting private exclusive rights to authors of expressive works that include the rights to prohibit unauthorized copying, distribution and derivative works). Consequently, when Lessig attacks copyrights, even his worst excesses must be defended--at all costs and forever. Copyhate must prevail. Nothing can be conceded to imperialist lovers of "monopolies" who insist upon perceiving some merit in the system of private copyrights and markets that helped to make imperfect, effective-freedom-denying America the world's leading creator and exporter of expressive works.
Granted, all humans are highly imperfect, and I surely am. Indeed, that is why I repeatedly tried to let this episode lapse without further comment. But those efforts have been thwarted--again. Consequently, I hope that this reply proves that Mr. Lee's blog post Selective Quotations speaks most eloquently to the sloppy, hypocritical self-destructiveness of its author and other unwitting "libertarians" who chose to look ridiculous and foolish by relentlessly defending the worst excesses in an "apology for regulation" that was concededly far too "optimistic about the potential of government to do good."
