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9.10.2004
Lessig v. PFF (cont.)
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Last March, Larry Lessig and I debated at the National Press Club.
Now, Lessig is again seriously irked with PFF -- "lost" is his description of us -- this time because of comments on Grokster by Bill Adkinson (here) and Solveig Singleton (here, here, here, and here) suggesting that the case was wrongly decided and that cert should be granted because a better approach is embodied in Judge Posner's Aimster opinion. Lessig closes on the doleful note that the comments show "the danger of putting principle up for bid."
Next week, we will blog more on the substance of the conflict, but a couple of basic points should be made in response.
First, a major difference between PFF staff and the Lessigians is that we place high value on the protection of intellectual property. Our reasons are both societal, in the sense that protection of property (including intellectual property) and markets is crucial to the production of wealth, and individual, in the sense of the Supreme Court's 1972 language in Lynch v. Household Finance that:
"[T]he dichotomy between personal liberties and property rights is a false one. Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a 'personal' right, whether the 'property' in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized."
Intellectual creations are solidly within the scope of this truism, in both law and right reason.
The Lessigians seem to place no value on protecting IP. They seem to regard it as totally a utilitarian creation of the government, subject to alteration at whim. (See my analysis of the Eldred case, here.) And they seem to think that the Internet has rendered our concepts of IP obsolete, so we can get rid of them with insouciance. The Lord will provide a new model for its production, probably in the form of a tax on Internet connectivity with the proceeds distributed among creators by an all-wise and all-beneficent government board.
Therefore, if protecting property in any way inconveniences any other interest, the Lessigians' conclusion is clear: To hell with IP.
PFF, on the other hand, finds the issues very difficult. Yes, the tech companies raise some important concerns, but IP is important, too, and the academicians' idea of socialized IP is one of the world's truly bad ideas, absolutely unworkable.
So how does one reconcile the conflicts? Actually, I am somewhat more sympathetic to the Grokster decision than are Solveig and Bill, but my sympathies come with a price -- okay, if you do not want to give the content owners legal power to shut down the infringing services, then give them self-help power. Let them block the file-sharing as they choose, subject only to a requirement that they pay for any harm caused to innocent parties as a result of errors.
Don't like this idea? Then let us back it up, and look again at the rules under which the content providers can assault the P2P enablers, because they have to be able to protect themselves (and the society) in one way or another.
It is characteristic of the Lessigians to claim that they actually favor IP rights, but then to oppose every specific suggestion about how those rights might be protected. I predict with confidence that they will not endorse the self-help suggestion, either.
The second point concerns financial support. PFF is funded by donations from companies. Supporters, past and present, are listed on our web site. They include telecom, tech, and content companies. They support us because they agree with our basic property-rights-and-free-markets orientation, but they certainly do not agree with every position we take, especially because their interests sometimes conflict. Sometimes they stop supporting us; several names on the web site are no longer active. Also, corporations are bottom-line conscious, and their willingness to dole out money for long-term philosophical education is pretty limited.
Thus, it is amusing to be accused of venality by a prominent academician. The academy may not much like property rights, but in fact the most valuable piece of property one can have in modern America is a tenured chair at a major university. The job can pay a cool quarter of a mil per year, plus cushy fringes, and you have great opportunity to add to that with $700-per-hour consulting. You cannot be fired for sloth, senescence, or spending time on activism rather than teaching or scholarship, so you are not responsible to the trustees or the administration of your institution. As icing, for odd sociological reasons, as long as the academic holds to a rigorously anti-corporate, anti-market, anti-property line, he or she can get unending grants from a long roster of sympathetic foundations. (There are almost none of these on PFF's side of the philosophical divide.)
On the auction market, such a position would be worth multi-millions.
If we at PFF are putting our principles up for bid, boy have we come to the wrong eBay.
posted by James DeLong : 9/10/2004 01:59:41 PM
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