Old Man Yells At Blogosphere

A recent Trichordist rant by David Lowery shows just exactly what is wrong with the entire site, and indeed with Lowery’s entire thought process regarding copyright and artists’ rights. That rant is called You Can’t Have A Have A Healthy Market Economy Without Property Rights. Why Do So Many In Tech Blogosphere Want To Abolish Cyber Property Rights And Cripple The Cyber-Economy?

It is chock-full of wrong. Not just factual wrongness (though it has plenty of that), but wrongness at a very fundamental level. It is a rant that is the result of someone who is completely incapable of understanding anything that he doesn’t agree with. Not because he’s stupid – he’s not – but because comprehension would require considering a fundamental shift in his long-held, near-religious beliefs. Whenever he runs across a conflicting worldview, his brain simply shuts down.

You can see the problem immediately. “Why do so many in tech blogoshphere want to abolish cyber property rights?” Of course, the answer is that they don’t, and never said they did.

It also presumes that there is such a thing as the “tech blogosphere.” He makes the same, fundamental mistake as many other anti-internet people: he presumes that everyone that speaks “there” is all the same. And he does it to minimize them, to dismiss anything they have to say. To wit:

This is exactly what many in the tech blogosphere are arguing we should do in the cyber-economy. These faux revolutionaries are arguing that Intellectual Property and the Internet are incompatible so in the name of “freedom” Intellectual Property must go. In the cyber economy ALL property is intellectual property. This means these folks are advocating for no private property in cyberspace.

Of course, there is a conflict between intellectual property (more accurately, the companies whose business models depend upon it) and the Internet. Just as there was always a conflict between intellectual property and free speech. But nobody is claiming that “intellectual property must go.” Nobody is “advocating for no private property in cyberspace.” Certainly, nobody that he talks about in his article is doing so. Right at the beginning, he makes a straw man argument.

And it only gets worse from there:

Now I’ve read enough mystical pseudo revolutionary garbage about the web to know what the responses will be to what i’ve just said. They generally fall into three categories:

“The Internet is different”

“Old Economic laws do not apply to the cyber-economy”

“A magic beaver lives in a spaceship under the Googleplex”

Frankly, the only people who are doing this are rights holders. They are the ones arguing that traditional copyright laws are insufficient for the Internet. They are the ones who are denying basic economic principles about monopoly, perfect competition, and marginal cost that any first-year econ student has learned.

And… well, OK, maybe not the bit about magic beavers and spaceships, but they’re the ones who confuse “the internet” with “Google.”

What does that “magic beaver” bit even mean, anyway? To Lowery, it is a shorthand for anything that he believes is even slightly techno-utopian. (I’m betting that he’s not a huge fan of Star Trek.) Here’s his concrete example of “magic beaver” thinking:

While it’s entirely possible that a magic beaver lives in a spaceship under the Goggleplex other pseudo religious and mystical properties assigned to the technology industry and in particular the web are just not true. I will bet anyone $1,000 dollars that 5 years from today The Technological Singularity has not occurred. The Technological Singularity is a Nerd reverse creation myth. Abolishing intellectual property is not gonna turn the web into a super intelligent being and usher in a new age of peace, prosperity and enlightenment.

First: Almost nobody in any technological field believes in “the singularity.” It is a fringe idea, not taken very seriously even among technological positivists. In fact, the only person I know who seriously believed it was a concert promoter.

Second of all: as referenced by the very Wikipedia article he linked to, the “singularity” idea was developed by John von Neumann and Stanislaw Ulam in 1958, first popularized by sci-fi writer Vernor Vinge, but most recently made extremely popular by Ray Kurzweil in his book The Singularity Is Near. Except for Kurzweil’s book, all of these people were writing about “the singularity” well before Google existed, and in fact before the World Wide Web came into being. And, to my knowledge, none of them wrote a single word about intellectual property, much less its abolishment. (Though I admit I haven’t read the books, just summaries.)

Update: I have just discovered that Ray Kurzweil did, in fact, write a little bit (very little) about intellectual property in “The Singularity Is Near.” But he did not argue that “intellectual property must go.” Far from it:

If the primary value of products and services resides in their information, then the protection of information rights will be critical to supporting the business models that provide the capital to fund the creation of valuable information. The skirmishes today in the entertainment industry regarding illegal downloading of music and movies are a harbinger of what will be a profound struggle, once essentially everything of value is composed of information. Clearly, existing or new business models that allow for the creation of valuable intellectual property (IP) need to be protected, otherwise the supply of IP will itself be threatened. However, the pressure from the ease of copying information is a reality that is not going away, so industries will suffer if they do not keep their business models in line with public expectations. In music, for example, rather than provide leadership with new paradigms, the recording industry stuck rigidly (until just recently) with the idea of an expensive record album, a business model that has remained unchanged from the time my father was a young, struggling musician in the 1940s. The public will avoid wide-scale pirating of information services only if commercial prices are kept at what are perceived to be reasonable levels.

This is not even remotely an abolitionist viewpoint of intellectual property. In fact, it is just the opposite – a recognition that intellectual property is going to be more important in the age of the “singularity.” Kurzweil is simply saying that the businesses which rely on intellectual property will have to actually listen to their customers – hardly a revolutionary idea.

But apparently it doesn’t matter to Lowery. They like computers and the internet, and those guys are all the same. This is, after all, the guy who constantly uses the term “digeridiot” without sarcasm.

Soon, Lowery starts up with the conspiracy theories:

So why do so many in the tech blogosphere advocate the complete abolition of intellectual property rights?

The short answer is most don’t. Most of those in the tech blogosphere advocating abolition are knowing pawns in a cynical short term strategy to protect the profits of web and technology companies. There are many web and tech companies that have built their businesses on the intellectual property of others. They are afraid they may have to share some of their new found tech wealth with the”dinosaurs” that created the content that drives their traffic. It’s a handy distraction.

The short answer is most don’t even claim to advocate the complete abolition of intellectual property rights. Let’s be clear about this: the only one making this claim is David Lowery. He is building a straw man.

And he is doing it to create a conspiracy. All of those people who were against SOPA? All of those people who are concerned about fair use? About bogus DMCA takedown notices? Free speech rights? Due process? Those people are nothing more than puppets of “web and technology companies,” and their only goal is to steal your copyrights. Don’t listen to them, ye artists; close your ears and shut your eyes to the Siren song of “an open Internet” or “civil rights,” lest you be dashed on the reefs of Pirate Island.

Does he name any of these bloggers, or offer any evidence that they are paid shills for “web and technology companies?” Of course not. Because that conspiracy doesn’t actually exist.

The two people he does name are not “bloggers,” but John Perry Barlow and Lawrence Lessig. And this is really the first time in the article where he is actually naming people whose views on intellectual property can be independently researched and quantified. And, boy, does he get them wrong.

Barlow is very straightforward. Given the chance he will pound the table and shout “Intellectual Property is Not Property!”.

Barlow has said that intellectual property should not be considered the same as tangible property. But this is not even close to saying that it should be abolished. In fact, according to Dowling v. U.S., that viewpoint is currently U.S. law, and U.S. law is hardly abolitionist.

In another article, “thetrichordist” (?) bases this claim on an article (or, really, manifesto) that Barlow wrote in 1996. Let’s look at the relevant parts, but actually in context this time:

Cyberspace consists of transactions, relationships, and thought itself, arrayed like a standing wave in the web of our communications. Ours is a world that is both everywhere and nowhere, but it is not where bodies live.

We are creating a world that all may enter without privilege or prejudice accorded by race, economic power, military force, or station of birth.

We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.

Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.

Our identities have no bodies, so, unlike you, we cannot obtain order by physical coercion. We believe that from ethics, enlightened self-interest, and the commonweal, our governance will emerge . Our identities may be distributed across many of your jurisdictions. The only law that all our constituent cultures would generally recognize is the Golden Rule. We hope we will be able to build our particular solutions on that basis. But we cannot accept the solutions you are attempting to impose.

If you’re curious, the article was written as a response to the Telecommunications Reform Act of 1996. It had nothing to do with intellectual property. Barlow’s main complaint (I think) was with Title V, the Communications Decency Act – an act which ended up being ruled unconstitutional. So, he was right to be upset.

Or perhaps what Lowery is referring to is taken from video of a discussion between Barlow and Bob Weir, another member of the Grateful Dead. (The video was an update on the Trichordist page I linked to.) Barlow’s argument is that the music business is moving more towards a service model than a physical sales model – hardly controversial, not dismissive of artists at all, and not even remotely abolitionist.

In fact, he uses the Grateful Dead itself as an example of this model. Which makes Lowery’s next statement even more ridiculous:

Barlow made his fortune from his intellectual property, his co-writes with the the Grateful Dead. If Barlow really believes that Intellectual Property is so terrible he should give away his earnings and relinquish all rights to these songs. This looks like another case of “Do as I say not as I do”.

Barlow made his musical “fortune” (let’s be honest, that should be in quotes) from the band travelling and touring, from the community that their fans created, and from the band’s open acceptance of fans sharing recordings of their music. It would be almost as accurate to say that he should give away his earnings if he was against Napster. It is hardly “Do as I say, not as I do.” It is “It worked for me, and it can work for you.”

Next on Lowery’s hit list is Lessig, who he calls “a member of ‘The Internet is Different’ faction and leader of one of the quasi religious factions (See his ‘Code is Law’).”

That phrase comes from Lessig’s 1999 book “Code and Other Laws of Cyberspace,” updated in 2006 to “Code: Version 2.0.” If you want, you can download a copy from the codedev2 website, as it is released under a CC-BY-SA license. The book is hardly “quasi-religious,” and very, very far from “techno-utopian.” Here’s a sample:

If code is law, then, as William Mitchell writes, “control of code is power”: “For citizens of cyberspace, … code .. is becoming a crucial focus of political contest. Who shall write that software that increasingly structures our daily lives?” As the world is now, code writers are increasingly lawmakers. They determine what the defaults of the Internet will be; whether privacy will be protected; the degree to which anonymity will be allowed; the extent to which access will be guaranteed. They are the ones who set its nature.

It is a fairly mainstream history and discussion of the Internet, control, and ethics. It is no more controversial than, say, A Gift Of Fire, which is one of my university textbooks. Why Lowery considers it “quasi religious” is beyond me. Frankly, I recommend that everyone read it; the chapter on intellectual property starts on page 169.

Lessig also appeared on The Colbert Show, an appearance which Lowery considered “sinister:”

Colbert: Well let’s see (laughing) …so the hybrid economy is where everybody else does the work and Flickr makes all the money?

Lessig: (Mock voice and hand gestures) Don’t tell anybody! Don’t tell anybody!

The great thing about this exchange is that it appears that Lessig is genuinely surprised by Colbert’s one sentence smackdown of Web 2.0 companies. He didn’t have a ready answer to such an obvious observation.

If you actually watch the video, it’s pretty clear that Lessig was not “genuinely surprised” by Colbert’s joke, and that Lessig was joking himself. As he should be – because he has heard it before, and it is a joke. In fact, as Colbert himself said in that interview, his green screen challenges were exactly the type of thing that Lessig was talking about.

The reason it’s a joke is because Flickr does most of the work. They created the platform. They host the images. They provide avenues for social connections among its users. All of this required a great deal of labor, and the users get the fruits of that labor without paying. And there is no requirement at all that anyone actually use the site. Flickr certainly makes money, but only an idiot would think this is exploitation.

Lowery misrepresents Lessig some more:

Lessig’s writings in sum total are contradictory and incoherent. He loves to be on both sides of an issue. At one panel he angrily demanded that a critic name one time he “lauded the appropriation of intellectual property.” This was after he wrote an essay entitled “In defense of Piracy.” Like a true lawyer Lessig has a depends-what-the-definition-of-is-is defense at the ready. Turns out his definition of piracy is different.

The “In Defense of Piracy” article can be read on the Wall Street Journal site. The title is obviously satiric. It is not defending piracy at all – at least not as most people define the term. The article begins by focusing on the Lenz “dancing baby” case, on remix artists, and on the DMCA being used to take down political content. Here’s the important part:

New technology is restoring the “vocal chords” of millions. Wikipedia is a text version of this amateur creativity. Much of YouTube is the video version. A new generation has been inspired to create in a way our generation could not imagine. And tens of thousands, maybe millions, of “young people” again get together to sing “the songs of the day or the old songs” using this technology. Not on corner streets, or in parks near their homes. But on platforms like YouTube, or MySpace, with others spread across the world, whom they never met, or never even spoke to, but whose creativity has inspired them to create in return. […]

Yet our attention is not focused on these creators. It is focused instead upon “the pirates.” We wage war against these “pirates”; we deploy extraordinary social and legal resources in the absolutely failed effort to get them to stop “sharing.”

This war must end. It is time we recognize that we can’t kill this creativity. We can only criminalize it. We can’t stop our kids from using these tools to create, or make them passive. We can only drive it underground, or make them “pirates.” And the question we as a society must focus on is whether this is any good. Our kids live in an age of prohibition, where more and more of what seems to them to be ordinary behavior is against the law. They recognize it as against the law. They see themselves as “criminals.” They begin to get used to the idea.

That recognition is corrosive. It is corrupting of the very idea of the rule of law. And when we reckon the cost of this corruption, any losses of the content industry pale in comparison.

This is a far cry from “lauding the appropriation of intellectual property.” It is not at all incoherent. And it is only “contradictory” to someone who is only capable of thinking in binary extremes: total copyright control, or total abolition. Lowery is clearly such a person.

When he says “[Lessig] was a clerk to Anton ‘corporations are people’ Scalia,” he is being particularly offensive. It implies (and he later outright states) that Lessig supports the Citizens United “corporations are people” ruling, when in fact Lessig is adamantly against it. His most recent project is the Mayday PAC, a crowd-funded “superPAC” whose goal is to achieve campaign finance reform, so that all elections are citizen-funded. Not only does he not approve of the “corporations are people” stance, he is actively working against it.

And the misrepresentations continue:

What is absolutely clear is that Lessig wants to specifically screw entertainers and artists. He proposes limiting copyrights to as little as 5 years. Given that a copyright for a song begins when the lyrics are written down or hummed into your iPhone voice memo app, many copyrights would expire before the artist could commercially exploit the song.

Nice try, but no dice. Lessig advocated limiting copyrights on software only to five years. And he did it precisely because software is not the same as the other arts. This is from a Wired article called May the Source Be With You:

[W]hile control is needed, and perfectly warranted, our bias should be clear up front: Monopolies are not justified by theory; they should be permitted only when justified by facts. If there is no solid basis for extending a certain monopoly protection, then we should not extend that protection. This does not mean that every copyright must prove its value initially. That would be a far too cumbersome system of control. But it does mean that every system or category of copyright or patent should prove its worth. Before the monopoly should be permitted, there must be reason to believe it will do some good – for society, and not just for monopoly holders.

One example of this expansion of control is in the realm of software. Like authors and publishers, coders (or more likely, the companies they work for) enjoy decades of copyright protection. Yet the public gets very little in return. The current term of protection for software is the life of an author plus 70 years, or, if it’s work-for-hire, a total of 95 years. This is a bastardization of the Constitution’s requirement that copyright be for “limited times.” By the time Apple’s Macintosh operating system finally falls into the public domain, there will be no machine that could possibly run it. The term of copyright for software is effectively unlimited.

Worse, the copyright system safeguards software without creating any new knowledge in return. When the system protects Hemingway, we at least get to see how Hemingway writes. We get to learn about his style and the tricks he uses to make his work succeed. We can see this because it is the nature of creative writing that the writing is public. There is no such thing as language that conveys meaning while not simultaneously transmitting its words. Software is different: Software gets compiled, and the compiled code is essentially unreadable; but in order to copyright software, the author need not reveal the source code. Thus, while the English department gets to analyze Virginia Woolf’s novels to train its students in better writing, the computer science department doesn’t get to examine Apple’s operating system to train its students in better coding. […]

Thus, I would dramatically reduce the safeguards for software – from the ordinary term of 95 years to an initial term of 5 years, renewable once. And I would extend that government-backed protection only if the author submitted a duplicate of the source code to be held in escrow while the work was protected. Once the copyright expired, that escrowed version would be publicly available from the copyright office.

Most programmers should like this change. No code lives for 10 years, and getting access to the source code of even orphaned software projects would benefit all. More important, it would unlock the knowledge built into this protected code for others to build upon as they see fit. Software would thus be like every other creative work – open for others to see and to learn from.

Nowhere did Lessig advocate a five-year term for any other kind of creative art (music, movies, photography, writing, etc).

Lowery seems mentally incapable of understanding a conflicting viewpoint, so it’s not surprising that this is the best characterization of Lessig that he can come up with:

“The internet is cool, Web/Tech corporations are people, Songwriters are serfs and Power to the people.”

It’s completely wrong, almost to the point of defamation, but I doubt that Lowery will ever admit it.

Lowery is also dismissive of the ethical difference between theft and infringement:

In an attempt to avoid the whole property issue there is a related and overlapping group of fake legal scholars that make the mentally and morally challenged argument that because copying files leaves the original intact and hence nothing has “gone missing” that in fact no “theft” has occurred. This is a semantic distinction, a narrow technical argument. An argument that you expect to come from someone paid to be morally and ethically flexible like a criminal defense attorney. But not, as it was recently argued, by Rutgers law professor Seth Green in a guest Op Ed for the NY Times.

First: The distinction is not “semantic” or a “narrow technical argument.” It is the very basis of the ethical debate. That “theft” creates deprivation is the only thing that makes it immoral. If nothing has “gone missing,” then there is no basis whatsoever to view infringement as unethical.

In theory, of course, what “goes missing” are the works that an author would not publish without the copyright monopoly. That is what makes copyright ethical.

So it’s not outlandish that Stuart Green (not Seth Green) wrote the following in When Stealing Isn’t Stealing:

The problem is that most people simply don’t buy the claim that illegally downloading a song or video from the Internet really is like stealing a car. According to a range of empirical studies, including one conducted by me and my social psychologist collaborator, Matthew Kugler, lay observers draw a sharp moral distinction between file sharing and genuine theft, even when the value of the property is the same.[…]

So what are the lessons in all this? For starters, we should stop trying to shoehorn the 21st-century problem of illegal downloading into a moral and legal regime that was developed with a pre- or mid-20th-century economy in mind. Second, we should recognize that the criminal law is least effective — and least legitimate — when it is at odds with widely held moral intuitions.

Illegal downloading is, of course, a real problem. People who work hard to produce creative works are entitled to enjoy legal protection to reap the benefits of their labors. And if others want to enjoy those creative works, it’s reasonable to make them pay for the privilege. But framing illegal downloading as a form of stealing doesn’t, and probably never will, work. We would do better to consider a range of legal concepts that fit the problem more appropriately: concepts like unauthorized use, trespass, conversion and misappropriation.

On the other hand, we could just stick with the term that we already have, and have been using for centuries: infringement.

This is much better than Lowery’s absolutely offensive alternatives: “artist rape” or “artist trafficking.” It says a lot about David Lowery that he would conflate copyright infringement with violent sexual assault or human trafficking.

And what it says about him is not good.

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