I often say that there are two things that hold societies together: Moral lessons learned as a child, and the promise of swift and certain punishment. On Father’s Day, let’s focus on the former for a moment.
I invite those of Professor Lessig’s pirate crew who are fathers to take a sampling of the literature about fathers, what it means to be a father, and those who remember their fathers. Tim Russert wrote an excellent book entitled Wisdom of Our Fathers with many remembrances of not only his own father, but anecdotes of viewers and readers of his books who wrote to him with their own stories about their dads.
Most of the stories that you hear about fathers or father figures are about moral lessons. These guideposts frequently are those pithy moral statements that impart simple truths to light our path in life. The stories are told with great pride by the daughter or son telling the tale, and the child often expresses gratitude that their father taught them lessons that put them on a solid path in life and helped them be better parents themselves, or better human beings in any event.
These lessons always include lessons from how Dad lived his life, not so much what Dad said about how one ought to live an idealized life. Dads inspire their children with how they conduct themselves and what they stand for, their moral code.
Strange—there’s not one story about sitting down with Dad, an Internet connection and Limewire to steal tracks. No mention of Dad showing Sonny how to use Bit Torrent to steal movies, books, and other copyrighted works. And no stories of gatherings around the family computer to hear misty eyed replays of the Grokster oral argument at the 9th Circuit courtesy of the EFFluviati.
I also couldn’t find stories of how Dad flew B-17s in World War II and came home to steal records, or perhaps a more contemporary version of the story—those great stories of how Dad told us kids how he fought in the Gulf to keep us free to steal movies.
No one tells a story of how Dad liked to kick recording artists in the teeth and how Dad made his kids understand truly why songwriters make too much money and deserve to be paupers. No tales of a great bonding experience watching Farting in Public off of YouTube. And no cherished autographed copies of Free Culture being passed down from pirate father to pirate child like copies of the little Red Book in the Cultural Revolution?
I’m sure that the reason I can’t seem to find those stories is that I’m just not looking in the right places. Surely the copyleft, who are so proud of their piracy, would be imparting these values to their children, and doing so widely and publicly. Lessig must have written A Child’s Garden of Theivery or something to help impart the commonsist values to a younger generation, yes?
Strange, isn’t it? I must live under a rock.
Fallacies were (and still are) a pet favorite of mine. I had the good fortune to have had a wonderful professor for symbolic logic and I tutored the subject for a year in college.
Any clear thinker much less a good lawyer avoids fallacies like the plague. (For those of you unfamiliar with logical fallacies, let us rely on the wisdom of mobs and I refer to you the wikipedia entry under “fallacies”.)
I enjoyed reading a recent editorial published in the Washington Post by Fredrich von Lohman of the Electronic Frontier Foundation entitled “Copyright Silliness on Campus”.
(For those of you who don’t know, von L, Grand Mystic Knight of the EFFluviati, represented one of the defendants in the Grokster case at the 9th Circuit Court of Appeals and did a really and truly stellar job of making the losing argument that won the day but was thrashed to bits on appeal to the U.S. Supreme Court in the landmark—and highly predictable—MGM et al v. Grokster et al copyright ruling. In Grokster, the EFFluviati were concerned about arguing the legal principle that “sharing” otherwise illegal copies of recordings with 60 million of your closest friends was somehow protected by the Sony case. Whew. Glad we got that sorted out. Thank goodness we blew millions on legal fees establishing the rule–the “embarrassingly straightforward” rule–that bad guys don’t get to make the law. Some believe that the true purpose of Grokster was to delay the shut down of p2p sites long enough to allow rampant illegal copying to take hold in society and begin to further weaken the recording industry. Unfortunately, the industry took that bait.)
Now those of you who read the editorial and also read these blogs may find that parts of that editorial have a familiar ring to them, although I have to say that I have neither the age nor the gravitas to dismiss legitimate inquiries of Members of Congress as “silliness”. But then I’m just a country lawyer, and I’m not as smart as these city fellers.
However, I did notice a couple things in the editorial’s reasoning that are worth pointing out and are a great way to demonstrate two of my favorite logical fallacies: The Fallacy of Equivocation and the Fallacy of the True Glaswegian.
The section of the editorial I’m focused on follows some strong criticism of the Congress for investigating downloading on campus—that is, permanent downloads—and goes on to state the following:
“Universities already pay blanket fees so that student a cappella groups can perform on campus, and they also pay for cable TV subscriptions and site licenses for software. By the same token, they could collect a reasonable amount from their students for “all you can eat” downloading.”
The recording industry is already willing to offer unlimited downloads with subscription plans for $10 to $15 per month through services such as Napster and Rhapsody. But these services have been a failure on campuses, for a number of reasons, including these: They don’t work with the iPod, they cause downloaded music to “expire” after students leave the school, and they don’t include all the music students want.
The only solution is a blanket license that permits students to get unrestricted music and movies from sources of their choosing.”
Read that section again and see if you catch the grift.
Now watch what just happened.
The argument follows this line of reasoning:
The recording industry grants blanket licenses for unlimited downloads to subscription services;
Therefore, the recording industry should grant blanket licenses to universities to legalize the unlimited downloads students already enjoy.
This has the ring of truth, yes? But only if you (the mark) don’t know that the Napster and Rhapsody subscription services don’t include permanent downloads (what students get from p2p networks) in the subscription fee, just streams and tethered downloads (never available on p2p). So the words “unlimited downloads” in the opening proposition have a totally different meaning than “unlimited downloads” in the conclusion.
And so here’s the grift: von Lohman does not make this distinction clear at all. This allows him to lead the unsuspecting mark to the conclusion the writer wants to foist on readers without having to go through that nasty step of dealing with facts. (This is because the EFF have been trying to grift their way to legalizing mob behavior that is patently illegal and also set the rates to compensate their victims. That’s also what they tried to do in the Grokster case, and lost in no uncertain terms.)
No students are interested in tethered downloads, they want permanent downloads. And the context of the editorial is that it is criticizing the Congress for inquiring into what the universities are doing about permanent downloads. The whole point of the editorial is what to do about permanent downloads.
So the fee and licensing regime that von Lohman implies is appropriate as compensation to artists for permanent downloads is actually charged for something entirely different—tethered downloads or streams in which no permanent copy is purchased.
This is just a first rate example of the Fallacy of Equivocation, meaning that the writer relies on the reader’s ignorance of the ambiguity in “unlimited download” when used in the subscription context compared to “unlimited download” when used in the permanent download (or p2p) context. Copyright owners typically share a pool of money from subscription services based on usage, and typically charge a wholesale price of around $0.70 per download, and retailers typically charge a retail price of around $0.99 for each permanent download.
Meaning that if a student downloads as much as the writer seems to imply, let’s say 500 tracks a month, that’s the difference between $500 per month per student and $15 a month per student.
There is, of course, a more subtle Fallacy of Equivocation under the surface of the writer’s fallacious argument. In the case of the subscription services the writer mentions, records are kept of whose track is played when so that proper accountings can be rendered and the subscription pool can be divided up amongst the proper copyright owners. The same is true of webcasting or any other legitimate licensed service.No such accounting system exists in the wild and wooly world of illegal p2p, so even if there were to be a per user fee, it could not be allocated to copyright owners.
If you know even a little bit about the way online services price and for what kinds of transmissions, you will see through this fallacious reasoning immediately. Otherwise, such writing only goes to confuse the issues.
Now for my favorite: The Fallacy of the True Glaswegian. (This one is actually known by a variety of names after the “True” part, but Glaswegian is my favorite.)
Back to the editorial’s text, in which the writer further admonishes Members of Congress lost in their “silliness”, poor addleheaded souls:
“History is sure to judge harshly everyone responsible for this absurd state of affairs. Our universities have far better things to spend money on than bullying students. Artists deserve to be fairly compensated, but are we really prepared to sue and expel every college student who has made an illegal copy? No one who takes privacy and civil liberties seriously can believe that the installation of surveillance technologies on university computer networks is a sensible solution.”
You see where this is heading, I’m sure. It’s one of those circular things.
To paraphrase: If Angus, a Glaswegian, who puts sugar on his porridge, is proposed as a counter-example to the claim “No True Glaswegian puts sugar on his porridge”, the Fallacy of the True Glaswegian would run as follows:
(1) Angus puts sugar on his porridge.
(2) No True Glaswegian puts sugar on his porridge.
Therefore:(3) Angus is not a True Glaswegian.
Therefore:(4) Angus putting sugar on his porridge is not a counter-example to the claim that no True Glaswegian puts sugar on his porridge.
(1) Christian, one who takes privacy and civil liberties seriously, believes installation of surveillance technologies on university computer networks is a sensible solution to the problem of massive copyright infringement;
(2) No one who takes privacy and civil liberties seriously, i.e., a True Civil Libertarian, can hold such beliefs;
(3) Christian is not a True Civil Libertarian (or is not as True a Civil Libertarian as [the writer].
Therefore:(4) Christian is not a counter-example to the claim that no True Civil Libertarian can hold such beliefs.
Well, it’s not so bad. There was one bit that the writer got correct: “History is sure to judge harshly everyone responsible for this absurd state of affairs.”
[For you Honor Code buffs: The Fallacy of Equivocation is also known in military circles as “quibbling”. “Quibbling is an equivocation and an evasion or shifting from the truth. It is an attempt to confuse through words or deeds that which really occurred. An example of quibbling is... A cadet, responsible for preparing an original report for grade but who, in fact, copied another cadet’s paper, was asked if the work accomplished was his own. His response, ‘Sir, that’s my handwriting’ is ‘quibbling’ or equivocating, is a violation of the Honor Code and deemed just as serious as a blatant lie.”
Thank goodness lawyers or editorial writers are not held to such standards.]
Lester Lawrence Lessig III suggests in a recent blog that his remarks at the CISAC conference last week were misquoted by Andrew Orlowski in his editorial about Lessig’s performance in the Register. “Trip” Lessig offers up an International Herald Tribune piece as offering a more accurate statement of his views.
Unfortunately, the key theme that Orlowski was making–as has become a topic of cocktail party chuckles in and outside the Beltway–was that Trip Lessig is in Google’s pocket and is working for The Man. I don’t know exactly what Andy O was thinking, but I gathered from his piece that he was drawing on the substantial contributions (millions) made by Google to Trip Lessig’s various centers for the study of screwing poor creators, Lessig’s public defense of Google in the New York Times and elsewhere, and the fact that Lessig defends The Man at every turn. (“‘This is an ideal partnership,” said Larry Kramer, Richard E. Lang Professor of Law and Dean [of the Stanford Law School].’” Oh, you bet your little beanie it is.)
Trip Lessig made a rather indignant repost on his blog over the weekend in which he railed against the Orlowski piece, and made a big deal out of stating that he doesn’t represent Google (which I guess could mean he could represent YouTube? Not clear.) This is really just a grift to focus attention away from the fact that there is an apparent quid pro quo: Google gives money to Lessig’s activities, and Lessig supports Google (which includes the Fair Use Project, part of the business unit at Standford funded by Google, that brought lawsuits against Viacom in connection with DMCA notices served by Viacom against Google in the YouTube litigation. One must ask oneself why it is that the Fair Use Project filed this particular lawsuit out of the hundreds of thousands, if not millions, of DMCA notices sent to Google and YouTube. Why file a lawsuit? Why not just send a counternotice? What about this particular case is unlike the all the others?)
Unfortunately for the Tripster, the International Herald Tribune piece also tied Lessig’s interests to Google’s interests, it just did it a little more politely for wee Larry’s thin skin. So even though he thought to deflect attention away from the criticism of hand in glove and brass in pocket, it really didn’t do that at all.
Professor Lessig engages in another excellent attempt at slight of hand in his quotation by the International Herald Tribune (extending the theme of Lessig in Google’s pocket):
“‘There are an extraordinary number of people who are creating on their own and doing so for a different reason than money,” Lessig, a lawyer who allies himself with Google in copyright positions, said during an interview. ‘Somehow we’ve got to find a system that ratifies both kinds of creativity and doesn’t try to destroy one in order to preserve the other.’”
Here’s the grift: Professor Lessig focuses on the users who don’t get paid to post content on, say, You Tube. People post on You Tube for “a different reason than money”.
Fair enough. What does that assertion prove? The Two Kings SOLD You Tube for one reason and one reason only–money. And Google bought YouTube for one reason and one reason only–money. Based on a wink, wink (or “nod, nod, bling, bling“) approach to the DMCA that appears to have sprung largely from the Tripster’s intellectual loins. So gobs of user generated content stealing other people’s property without a license produces CASH for The Man. The fact that users post for reasons that have nothing to do with money misses the point that the people who encourage them to post, and who know that the users are posting massive amounts of illegal content, are only doing it for money. Particularly since they’ve never made a record or shot a movie in their scalable lives.
But Lester Lawrence Lessig III’s grift is to get you to focus on these poor benighted souls who are motivated to do the work his benefactors profit from, and then try to make himself sound reasonable for advocating the ratification of a new form of “creativity”–aka mob rule that will benefit his benefactor. Kind of like let them eat ringdings.
It’s even better that the users don’t do it for money so there’s more money for King Chad. Not only does he not have to share much of the bling with the people he’s stealing from, he doesn’t even have to share it with the users.
You have to admit that Lessig defends one of the more brilliant scams to get foisted on the creative community and we’ve had more than our share. This scam is actually better than the Grokster scam that the EFFluviati loved so much–this one brings untold riches to the mall. It’s so sleezy it makes me want to take a shower, but it’s brilliant in a sordid kind of way, particularly if you admire pirates and other folk who can’t make an honest buck.
As Professor Doug Lichtman of the University of Chicago Law School writes:
“[B]ad intent on the part of providers must be mercilessly punished. By necessity, copyright rules in new-technology settings are flexible and imprecise. They allow creators of new technologies to experiment with design and implementation. They excuse small, innocent mistakes. But that flexibility cannot be entrusted to people or companies that knowingly exploit loopholes. This is why the last big copyright fight — the music industry’s case against Grokster — proved so simple. The question of exactly which precautions the law should demand of Grokster and related services was a difficult one. The question of whether Grokster’s ill-motivated founders should be allowed to play any role in establishing those rules, by contrast, turned out to be embarrassingly straightforward.”
What appears to be lost on Google is that Lessig and his fellow travelers did a brilliant job of articulating the losing argument in Grokster and did so–I would argue–because they skipped over the funamental step that the defendants were outside the norms of society. (Although apparently not outside the norms of the EFFluviati.) They’re about to do the same thing again in YouTube if you ask a lot of people. The difference–and it’s an important one–is that you don’t have judgement proof defendants in the YouTube case.
Imagine if I’m right and Viacom prevails. Imagine the quote from Professor Lichtman rewritten in a couple years to read: “[B]ad intent on the part of providers must be mercilessly punished. By necessity, copyright rules in new-technology settings are flexible and imprecise….But that flexibility cannot be entrusted to people or companies that knowingly exploit loopholes. This is why Viacom’s case against Google proved so simple. The question of exactly which precautions the law should demand of YouTube and related services was a difficult one. The question of whether YouTube’s ill-motivated founders should be allowed to play any role in establishing those rules, by contrast, turned out to be embarrassingly straightforward.”
In the words of John Lennon, how does he sleep at night?
The Register has another great news story from the CISAC conference, this time moving past Lester Lawrence Lessig III (known in the familar as “Trip” Lessig) who turned in what by all accounts was a firmly mediocre debate performance.
CISAC apparently gave the keynote slot to The Man aka Google. Boy I sure hope for Google’s sake that The Man didn’t pay a sponsorship fee for this debacle (although the cost would likely not have equaled a rounding error on the doggie treat budget at the Big G). Doesn’t anyone coach these people on how to handle themselves in public? Oh, I forgot. They don’t know any songwriters; they like them OK, but they wouldn’t want their daughter to marry one. It sounds to me like Nikesh didn’t do his homework. What a shock.
Those of us who were around for Web 1.0 will remember those moments when we had to explain to the babyfaced 24 year old Senior Vice President of Business Development for Socks.com that there was a difference between a budget and an allowance, that the SEC wasn’t a college lacrosse conference, not to believe everything Mary Meeker had to say, and that they call them bubbles because they burst. And they all burst.
These not so distant memories will all come back in a wave of nausea when encountering the Googles. We will fight the desire to smack anyone who says “long tail”, “China” and “wisdom of crowds” in the same sentence and suppress the impulse to scream “IDIOTBOY!!” like Dr. Strangelove struggling to keep control of his saluting arm.
They’re baaaaaaack. Based on the Register’s story, Nikesh Arora of Google seems to fit the bill nicely. Nothing–and I mean nothing–in his background would have made him the likely candidate to speak to CISAC. Then again, when you look at the backgrounds of all of The Man’s senior executive team, no one else has the background, either. Given that Google is in the business of stealing everything that’s not nailed down, maybe that’s not surprising. But at least coach the poor guy. There actually are plenty of PR hacks who could have helped with that, but of course that would mean that someone would have to admit they have a problem. And judging by the attitude so far, that simply ain’t going to happen chez TM.
Now if there is one group that has simply been screwed in the Internet music piracy debacle lead by Trip Lessig, it’s songwriters. People who just write songs. They are sick to death of copyright excuses from the bright eyed youth who think we give a good goddamn about whether Sergey’s yoga proclivities allow him to go inverted to pick the lint out of his nether regions upside down. We don’t think it’s cool that The Man lets employees wear shorts to work, we don’t care if they bring their dogs, cats or potbellied pigs to work. We don’t get any warm and fuzzies, but they definitely could all use with a time out when it comes to respect for other people’s property, and particularly our copyrights.
Just like we didn’t care when the radio station owners, or television station owners, cable operaters, movie studios or any of the rest of the long grey line of people who tried to screw us tried to make us buy that bull about promotional value, etc. Remember–songwriters get paid when their work is used on the radio, unlike artists. These guys may have been born at night, but they weren’t born last night.
Google is just another version of The Man to us, it’s just that they’re the biggest company in the world, and they steal everything that’s not nailed down, from music, to videos, to tabby cats inside private homes to index of” +”last modified” +”parent directory” +description +size +(wmamp3) “.
It’s like they all saw “That Thing You Do” or “Dreamgirls” or something, and think that’s the way the railroad is run. They think we need “exposure” like they even know what that means. You should want the exposure, little songwriter. As my friend Rick Carnes says, people die of exposure.
So TM sends Nikesh to CISAC–not to talk about anything meaninful, but to talk about Sergey’s yoga, and how nerds are sitting at home and finding “new talent”. Let me give you one hot tip yoga boy–you don’t “find talent” sitting at home. Not only that, but there are lots of “talented” people out there. Record companies and music publishers have everyone on earth sending them material every minute of every day on “talented people”, we have people stumbling over themselves to give us tips on what and who’s hot. What the Internet provides is a convenience, you don’t provide anything new.
And by the way, here’s another hot tip–there is a huge difference between someone who is “talented” and someone who is a compelling artist. Nerds are not finding compelling artists sitting at home. The industry is lucky if we find…how many in a year? One? Five? None? It’s not because we can’t find them, schmuck. It’s because there are very, very few of them. Jesus, Mary, Joseph and all the saints this guy is dumb…
And here’s another hot tip: Finding them is the easy part, relatively speaking. Finding them is just the start.
So in comes Nikesh to an organization made up essentially of songwriters and their representatives–all of whom have seen this movie so, so many times–and tries to hide the fact that Google and their boy Lessig are trying to make us their bitch. Deny that they want us to take their revenue share and accept some vague idea of promotional value–which are concepts that might, might apply to artists, but not to songwriters–because as Eric Schmidt says, culture has no intrinsic value that isn’t proven–on Google’s terms. Denial. Pure and simple denial.
What’s different about this time around is that at least all the other guys who came before Google in the role of The Man tried to make nice. They didn’t steal our stuff quite so blatently. They didn’t stand up like Eric Schmidt and tell a great man like Sumner Redstone that if he’d just waited a bit for Google to decide what’s good for him, he would have been better off, or that we had to prove somehow the intrinsic value of culture.
The old guys may have been The Man, but Google takes it to a whole new level of arrogance. The old guys were more or less from our business, they more or less shared our values. There may have been negotiating, there may have been positioning, but ultimately there was real agreement and respect.
They didn’t sell adwords for “download pirate movie”.
They weren’t philistines.
Apparently the professor believes that one would have to be uncharitiable to believe that the Register suggested he was employed by Google. I would invite you to read the piece for that conclusion. (And by the way, the article is really, really funny and goes in the “trebles all round” category as far as I’m concerned.)
Whatever conclusion you draw, I would think that there would be no doubt that the clear implication of the Register piece is less that Lessig is employed by Google, but more that Lessig is in Google’s pocket because his organizations get millions of dollars from Google, and that Lessig defends Google nearly every chance he gets. He has certainly taken many, many, many public positions in support of Google’s extreme views on copyright, and some might spectulate that it is more likely that Lessig informs Google more than Google informs Lessig. So let us not get sidetracked by the bright and shiny object of whether Lessig in fact represents Google in a formal sense.
I don’t know how much any of this matters, because, as the professor once said in closing of one of his many presentations “We’re bigger than them [sic]“, meaning, I would suppose that Google is bigger than the creative community. While not exactly news on the level of man bites dog, that’s certainly true.
I’m feeling particularly sensitive to the implications of all of this because I had yet another independent artist come to me today asking me to help them get their material down from illegal sites. I told them that thanks to people like Professor Lessig, the Pirate Bay is unlikely to give a tinkers damn about them or the economic effect the piracy has on the artist’s ability to feed his newborn. I’m sure Professor Lessig’s family eats just fine, in no small part due to his support for The Man.
There is some comfort in supporting The Man, I guess, and Google must have a market cap that is greater than the GNP of many, many countries–The Man on steroids. So it probably made the professor feel good and warm and cozy to remind his listeners that not only was their cause just, they could make it stick, too, because they were bigger than these little artists because they had Google in their camp. (Of course he may have meant the tech sector as a whole, but I doubt that he would think that Microsoft, Intel, Apple, and other industry leaders who work closely with the creative community to help us would truck with his views.)
Now he claims not to “represent” Google. I take him at his word. But did I not read that Google funded the Stanford “Fair Use Project”? And did I not read that the Fair Use Project was suing Viacom over its DMCA notices in Viacom’s litigation against…Google?
Hmmm. Now there’s a distinction. Congresspersons have been savaged by Lessig’s “movement” for less of a conflict.
But wait…Professor Lessig tells us in his blog that “the suggestion of a conflict in The Register’s piece has, however, led me to craft a disclosure statement that I should have published…long ago.”
“Craft”. “Long ago.”
If there’s no conflict, then what needs to be crafted? In fact, if there’s no conflict, you say there’s no conflict, and if there really is no conflict, then what further needs to be said?
Much less “crafted”.
George Shultz had a great line about lobbyists. “It all starts with a cigar.”
We can hardly wait. The anticipation is nothing short of unbearable.
In reading the papers today about the arrest of the alleged JFK bombers, I was reminded of an argument I had with a civil libertarian after 9/11. Among other things, I had taken a dim view of “student” visas that I knew from personal experience at college and law school were pretty routinely violated. I was accused of hypocrisy and of being living, breathing proof that the quotation from the Emma Lazarus sonnet engraved on the Bartholdi Pedestal of the Statute of Liberty is bunk because Americans–particularly Americans like me–do not welcome the tired, poor and huddled masses.
I pointed out that the actual quotation from The New Colossus is “Give me your tired, your poor, your huddled masses yearning to breathe free“, not “yearning to blow us to kingdom come” or “yearning to murder our children”, and Lazarus refers to the the Statue as the Mother of Exiles, not the Mother of the Most Wanted.
I strongly recommend reading the so-called “Phoenix Memo” (written by FBI agent Ken Williams) as a reminder of America’s vulnerabilities. It is chillingly prophetic.