Archive for November, 2010

Lessig waffles in the lion's den: the architecture of copyright stifles creativity, but abolition of copyright is "wrong"

November 12th, 2010 No comments

On November 4, copyright expert Lawrence Lessig gave the keynote talk at the World Intellectual Property Organization’s meeting in Geneva meeting on “Facilitating Access to Culture in the Digital Age”. Lessig points out how modern copyright clashes with creativity, and pushes for WIPO to launch a “blue skies” commission “to frame a sensible framework for copyright in the digital age”. I have posted his talk below; I note that Lessig welcomes comments at [email protected].

Who is Lessig? The WIPO’s bio for Lessig notes:

Lawrence Lessig is the director of the Edmond J. Safra Center for Ethics, and a Professor of Law at Harvard Law School. Prior to returning to Harvard, he was a professor at Stanford Law School, where he founded the school’s Center for Internet and Society, and at the University of Chicago. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court. For much of his career, Professor Lessig focused his work on law and technology, especially as it affects copyright. His current work addresses “institutional corruption” relationships which are legal, even currently ethical, but which weaken public trust in an institution. He has won numerous awards, including the Free Software Foundation’s Freedom Award, and was named one of Scientific American’s Top 50 Visionaries. He is the author of Remix (2008), Code v2 (2007), Free Culture (2004),The Future of Ideas (2001) and Code and Other Laws of Cyberspace (1999). He is on the board of Creative Commons, MAPLight, Brave New Film Foundation, Change Congress, The American Academy, Berlin, Freedom House and, and the advisory board of the Sunlight Foundation.

Lessig gave a similar talk at a TED conference in November 2007 (Larry Lessig on laws that choke creativity; TED describes Lessig as “one of our foremost authorities on copyright issues, with a vision for reconciling creative freedom with marketplace competition” (emphasis in original):

No expert has brought as much fresh thinking to the field of contemporary copyright law as has Lawrence Lessig. A Harvard professor and founder of Stanford’s Center for Internet and Society, this fiery believer foresaw the response a threatened content industry would have to digital technology — and he came to the aid of the citizenry.

As corporate interests have sought to rein in the forces of Napster and YouTube, Lessig has fought back with argument — take his recent appearance before the U.S. Supreme Court, fighting the extension of copyright protection from 50 to 70 years — and with solutions: He chairs Creative Commons, a nuanced, free licensing scheme for individual creators.

Lessig possesses a rare combination of lawerly exactitude and impassioned love of the creative impulse. Applying both with equal dedication, he has become a true hero to artists, authors, scientists, coders and opiners everywhere.

“Lessig has built a reputation as the king of Internet law and as the most important next-wave thinker on intellectual property.”

New York Magazine

Here’s his WIPO talk:


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Liberal Lessig attacks corporate rent-seeking, praises Tea Party candidates' call for a moratorium on earmarks

November 12th, 2010 No comments

Law professor Lawrence Lessig (once Stanford, now Harvard), the internet’s most famous lawyer and founder of the Creative Commons open licensing endeavor, has turned to issues of open and clean government (as I have previously noted), in part in his role as director of the Edmond J. Safra Center for Ethics at Harvard.

In this concern, he remains refreshingly nonpartisan. Here are excerpts of what Lessig wrote on November 11 at Huffington Post:

Many of my friends have been puzzled that I have not been a strong critic of the Tea Party. Indeed, quite the opposite, I stand as a critical admirer. That means that while I don’t share most of the substantive ends of many in that movement, and I strongly object to the extremism of some, I am a genuine admirer of the urge to reform that is at the heart of the grassroots part of this, perhaps the most important political movement in the current political context.

My admiration for this movement grew yesterday, as at least the Patriots flavor of the Tea Party movement announced its first fight with (at least some) Republicans. The Tea Party Patriots have called for a GOP moratorium on “earmarks.” Key Republican Leaders (including Senator Jim DeMint and Congressman John Boehner) intend to introduce a resolution to support such a moratorium in their caucus. But many Republicans in both the House and Senate have opposed a moratorium. Earmarks, they insist, are only a small part of the federal budget. Abolishing them would be symbolic at best.

This disagreement has thus set up the first major fight of principle for the Tea Party. As leaders in the Tea Party Patriots described in an email to supporters,

For two years we have told the media and the rest of the country that we are nonpartisan and that we intend to hold all lawmakers to a higher standard.

This, they insist, is their first chance for that stand with the new Republican Congress. And the Tea Party Patriots have now mobilized their list to pressure Republicans to support this first and critical reform in the new Congress. …

Earmarks are not bribes. But they are an essential element in the corruption that is Congress today. As Washington Post reporter Robert Kaiser describes in his fantastic book, So Damn Much Money, they have become the key to an incredible economy of influence that effectively enables lobbyists to auction too many policy decisions to the highest special interest bidder. That economy won’t change simply by eliminating earmarks. But eliminating earmarks is an essential first step to starving this Republic-destroying beast.

A government in which access can be bought, and influence paid for is not the Republic our Framers intended. They wanted a Congress “dependent,” as Federalist #52 puts it, “upon the People alone.” But through both Democratic and Republican administrations, Congress has evolved to become “dependent” not upon “the People,” but upon “the Funders.” Earmarks are a critical element in that dependency. And if we’re going to end government captured by an elite, we have to end that dependency.

This fight is just the first in a series that this more principled wing of the Tea Party movement can expect. For the truth is that not everyone on the Right shares their passion for ending the corruption that now rules Congress. During the rise of the GOP in the 1990s, some of the rights suggested that it was just “socialist” to question the power of the rich to buy influence over our government. The ideals of the free market, these GOP leaders insisted, should include a free market to buy government policy.

That idea is heresy to anyone standing in the tradition of Adam Smith, Friedrich von Hayek, Milton Friedman and Ronald Reagan. (Friedman, for example, insisted on a free market within the rules set by the government; he didn’t believe in a free market for those rules.) Yet that idea governs too much of both the Republican and Democratic parties of the past 20 years. It is an important and valuable development for the Republic that a powerful and passionate political movement on the Right makes ending this free market in government influence a core plank in its platform.

But if the Tea Party is really to be “nonpartisan,” then it needs to stop limiting itself to speaking to Republicans alone. Important Democrats share at least some of their reform ideals, including otherwise liberal Democrats, such as Congresswoman Jackie Spear (D-CA). The movement should rally Members from both the Right and the Left for any reform that is right (as in correct). The Tea Party Patriots’ reform to abolish earmarks is plainly that.

Now, of course, I have no illusion that my admiration for the Tea Party can be returned. A movement against “elites” is not likely to listen to a Yale educated Harvard Professor. But if that movement is to be as central to the restoration of the American Republic as its most passionate supporters believe, then it needs to recognize that while we don’t share common ends, we do face a common enemy. Special-interest-government is anathema to both the true Right and the limping Left. Progress would be to work together to end it.




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Sunlight Foundation: Citizens United ruling allowed election to be "costliest and least transparent midterm"

November 12th, 2010 No comments

I’ve commented extensively on the recent Supreme Court decision that in effect held that our corporation-hating Founding Fathers intended to protect “speech” by corporations under the Fourth Amendment.

The effects of that decision are starting to materialize … and it seems that GOP and “Tea Party”-backed candidates have been the primary beneficiaries of a large tide of new money from undisclosed donors.

As the Desmogblog notes:

The success of GOP and Tea Party-backed candidates in the 2010 U.S. midterm elections was enabled by a massive influx of secretive spending thanks to the Supreme Court’s ruling in Citizens United v. FEC.

A new analysis by the Sunlight Foundation identified $126 million in unrestricted funds spent during this midterm without any disclosure of whose money it was. That figure represents more than a quarter of the total $450 million spent by outside groups on the midterms. …

The two leading GOP shadow groups, American Crossroads and Crossroads GPS – both founded and guided by GOP veterans Karl Rove and Ed Gillespie – are reportedly “gloating” over their influence on the elections. The two groups spent more than $38 million on attack ads and misinformation campaigns to defeat Democratic candidates.

NBC News reports that “a substantial portion of Crossroads GPS’ money came from a small circle of extremely wealthy Wall Street hedge fund and private equity moguls.”

According to an analysis by the Sunlight Foundation (a clean-government group established in 2006 by left-leaning securities lawyer Michael R. Klein that publishes its donor lists here):

The 2010 midterm election is filled with both “known unknowns,” outside groups raised and spent $126 million on elections without disclosing the source, and “unknown unknowns,” we don’t know what those undisclosed donors want. We do know one thing: the Supreme Court’s Citizens United ruling allowed this election to be the costliest and least transparent midterm in recent history.

The impact of Citizens United can be judged by simply following the money. The $126 million in undisclosed money represents more than a quarter of the total $450 million spent by outside groups. Add the $60 million spent by groups that were allowed to raise unlimited money, but still had to disclose, to the undisclosed money and the total amount of outside money made possible by the Citizens United ruling reaches $186 million or 40 percent of the total spent by outside groups.

The outside groups taking advantage of the Citizens United ruling are largely tilted towards the Republicans. Republican groups raising unlimited money and disclosing their donors spent $35.7 million, $11 million more than their Democratic counterparts. By a nearly six to one margin Republicans outspent the Democrats among groups that failed to disclose the source of their money ($59 million to $10 million).

Click to see the top 20 outside groups and how they fared in the 2010 elections

This heavy partisan tilt in outside spending aided the Republicans in expanding the playing field and likely helped them exceed predictions for House seat pickups.

According to a report by Politico’s Jeanne Cummings, the Republican outside groups coordinated their spending, maximizing their ability to influence the elections with a massive wave of spending.

I’m not in favor of ANY corporate spending on campaign contributions or political speech. It seems to me that several avenues remain after Citizens United – in addition to efforts to get Congress to require further disclosure:

– states, which create corporations in the first place (most founders accept grants of limited-liability shareholder status), can change laws (1) to prohibit such activities by corporations (in which case shareholders, executives and employees retain their Constitutional rights to speak individually or as a group) and/or (2) provide regulatory incentives that favor companies that foreswear political activities;

– concerned citizens of all stripes can form groups that monitor and publicize political activities by companies, and that provide favorable publicity of corporations that foreswear political activities.

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Rob Bradley in Koch Wonderland: a 'Libertarian' uses his fossil fuel PR front to trumpet the 'principled entrepreneurship' of his rent-seeking benefactor

November 10th, 2010 No comments

Of course none of the Koch brothers (among the wealthiest Americans), the oil and other companies they own, nor the people they directly or indirectly employ – including Rob Bradley, who founded the oil-funded Institute for Energy Research and runs the ‘free market’ Master Resource blog (where yours truly is persona non grata) – is evil personified (us libertarians save that label for villains on the left, like George Soros, Al Gore and nasty enviros), but the Kochs’ efforts to seek favors from government and to protect those already earned is rather hard to miss:

In the face of the Koch brothers’ rent-seeking efforts, Rob Bradley’s recent praise at Master Resource of Koch Industries, Inc. for a “corporate call to principled action” is notable for its astonishing chutzpah and/or self-deception. 

Says Bradley, in reprinting a pre-election message from the Koch Industries newsletter (the message itself is not particularly objectionable):

In a sea of political capitalism and rent-seeking by corporations, it is refreshing to see a principled defense of capitalism from the business sector.


Koch’s Principled Entrepreneurship™ is just the opposite of Ken Lay and Enron’s political capitalism model.

If the Left is suspicious of corporativism, and if they do their homework, they might just repect the intellectualism behind privately held Koch.

Hah – this can be true only if Bradley’s trademarked “Principled Entrepreneurship” means unlimited, secretive corporate spending designed to directly affect the political and regulatory environment (the Koch’s have recently spent about $50 million on funding climate change ‘skepticism’)! For libertarians these days, does “up” mean “down”?

Well, I suppose that it’s not surprising if one’s views may be influenced by the hand that feeds them.

Oh, the rent-seeking games that we have fallen into!

Does anyone still NOT see where the favors government gives to corporations – starting with the initial grant of limited liability to shareholders – has led us?

PS: I just tried to leave the following comment at Master Resource, but it was rejected; Master Resource is not open for comment by critical libertarians:

Rob, how much money do firms that practice “Principled Entrepreneurship™” spend on trying to purchase regulatory and legal favors? Inquiring minds want to know.

Sky’s the limit, as long as the rent-seeker in question professes to prefer “free markets” (while ignoring statism inherent in the grant of limited liability to shareholders, in regulations that license pollution and serve as barriers to entry, and in continuing government ownership of leased resources)?


PS: Rob Bradley in Koch Wonderland: a ‘Libertarian’ uses his fossil fuel PR front to trumpet the ‘principled entrepreneurship’ of his rent-seeking benefactor – TT’s Lost in Tokyo

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How should libertarians react to the similarities between statist IP and the statist "climate agenda"?

November 7th, 2010 No comments

I wish to make note of a brief comment thread in the blog comments to  Stephan Kinsella‘s October 22 Mises Daily post, Rethinking Intellectual Property: History, Theory, and Economics:

TokyoTom October 26, 2010 at 1:47 am/span>

“Basically, IP protection schemes favour the large and well resourced over the man of modest means.”

Well said, Sione, and welcome back.

Large industrial firms now use patent IP as a way to erect barriers to entry; while media enterprises use copyright to loot. Meanwhile, the state is happy for help in controlling informal markets.


Sione October 26, 2010 at 5:00 pm


Yes indeed. Now extend your line of enquiry some.

Basically, global-warming schemes favour the large and well resourced over the man of modest means. Large well-connected firms now use environmental regulations as a way to erect barriers to entry; while academia uses the politics of “scientific consensus” to loot. Meanwhile, the state is happy for the helpful justifications in controlling all.

Not a great difference from the IP situation really.

Did you realise?

TokyoTom November 7, 2010 at 1:55 am

Sione, thanks for your comments; sorry to be so late in responding.

Did I realize?

– that “Large well-connected firms now use environmental regulations as a way to erect barriers to entry”? Sure, it’s been one of my continuing refrains. If we removed environmental barriers to entry+permits, public utility monopolies, limited liability of corporate shareholders, and the role of governments as owners of resources, no doubt we’d see dramatic changes in fossil fuel consumption+technology.

– that “the state is happy for the helpful justifications in controlling all”? Sure, it’s a concern that I have always shared

– that “academia uses the politics of “scientific consensus” to loot”? Academia doesn’t loot so much as it takes advantage of opportunities. Moreover, most researchers believe sincerely that we face a real serious problem; this belief is widely shared in the insurance industries and even in the oil+gas cos. No doubt they and others like Bill Gates would step in to provide funding were governments to stop doing so.


By the way, did you realize that there are principled, libertarian approaches that would address climate change risks and concerns?

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IP and the individual: does man act alone? Are "rights" personal or a group solution to a common problem?

November 7th, 2010 No comments

I wish to make note of a brief comment thread in the blog comments to  Stephan Kinsella‘s October 22 Mises Daily post, Rethinking Intellectual Property: History, Theory, and Economics:

Mushindo October 25, 2010 at 9:27 am

Artistic aspects aside, what galls me about patents is simply this, viewed from a universal evolutionary perspective: Once any organism , human not excluded, has acquired knowledge that will advance his prospects for survival, it is unreasonable to expect him to unlearn it. Nor is it reasonable to prohibit him from using it to advance his prospects for survival and procreation.


TokyoTom October 26, 2010 at 1:38 am

What you and others in this discussion miss, Mushindo, is that humans live and work in often-competing groups. Groups have always tried to preserve competitive advantage by limiting the access by outsiders to valuable [resources, including] “inside” information. A focus on individuals misses a large aspect of the dynamics at play here.


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A continuing story of "STUFF" and Stupidity: when enviros appear, Austrians stuff their thinking caps into a jar by the door, and rush out to defend the corporate-statist status quo

November 7th, 2010 No comments

I just stumbled across a Mises Daily post by Sterling T. Terrell (an “economist and writer living outside of San Antonio, TX”) on “The Story of Stuff” video by  Annie Leonard (a former Greenpeacer)

I couldn’t resist making a few comments, which I copy below.

Frankly, while I was disappointed by the shallow analysis by Terrell, I can’t say I was surprised – Austrians seem to like nothing better than to abandon principles and productive engagement in favor of partisanship, particularly if it enables dodging or defending corporate statism. What are principles over an emotional thrill, anyway?

Oh, you damned enviros! You make us Austrians/libertarians so stupid! (emphasis and some links added; further comments in brackets)

TokyoTom November 6, 2010 at 2:23 pm

Sterling, I’m late to the party, I see, but allow me to offer a few comments:

– Leonard “presses forward and laments the increasing size and importance of corporations, ignoring that the rise of corporations has been largely an outcome of consumer preferences.

My own humble view is that the rise of corporations has been more than a little affected by the fact that they are risk-transfer machines created by government and that could not exist in present form in a truly free market (certainly people injured by corporate actions do not chose the corporate structure of their tort-feasors).The grant of limited liability to shareholders has had a profound impact on society and communities and on the growth of the captured mega-regulatory
. See, e.g.,

I agree with Mushindo here.

1. “We are using too much stuff”? Compared to what? How Malthusian can Leonard be? One can grow tired repeating over and over the concept of the tragedy of the commons to those that are unable to think two steps ahead.

How about, compared to what our societies would exploit if governments across the world did not fuel the tragedy of the commons by purporting to “own” so much of the commons (often stealing it from natives and preventing management by users) and auctioning off lease rights to favored inside corporations for a song? [e.g., offshore oil and other public lands]

Why do Austrians feel compelled to contest phenomena that they know full well exist? [Does Austrian knowledge of the roots of a problem make the problem magically disappear?]

2. Aren’t you the least bit embarrassed?

3. “Leonard later contends that the United States’ response to consuming too much stuff is that it just takes someone else’s”

Did you miss the movie Avatar or our discussion of it? Isn’t it obvious that property rights are respected even LESS in the Third World than in the US? What does this imply for prices of raw materials sourced from the Third World, or for used products we dump there? [What does this imply for the protection of valued resources that neither indigenous peoples nor evil enviros are able to defend title to?]

4. “Seventy-five percent of global fisheries are fished at or beyond capacity.” Again, it would be helpful if Leonard understood the tragedy of the commons.

True; but again, it would be helpful if you acknowledged that, far from being something Leonard got wrong, this is one of those points that lack of property rights in and/or government ownership of fisheries means she is absolutely right.

5. Leonard is right that we live in a very materialistic society with weakening communities; Austrians should recognize that this is fuelled by the government actions that favor corporations, and by the growth of the government itself, including fiscal and monetary policy [as well as the captured regulatory state].

What is it with the reflexive disagreement with Leonard? Can’t one disagree with many aspects, but yet find common ground and venture productive explanations?

6. I doubt it is actually common for truly toxic products to be produced and sold in the United States.

Do you also doubt that cancer and pulmonary problems are clearly linked to environmental toxins? Do you doubt the existence of Superfund sites, and toxicity associated with US nuclear weapons production programs and mines generally?

Furthermore, I doubt many corporations would be in business for long if they sold them.
Have you failed to notice greenwashing by chemical cos? Or that federal pollution licensing regs keep in business Midwestern industries whose pollution East Coast states have been suing for decades to halt?

8. “Our primary identity is that of being consumers — not mothers, teachers, farmers, but consumers.”

Isn’t it obvious that Leonard is referring to how we are perceived/treated by corporations and governments – and like you personally believes we are much more than that? You continue to drum up disagreements where there don’t appear to be any.

9. “the American economy’s purpose is to produce more consumer goods.” Leonard bemoans the statement, but the advisor was right! Everything is produced for consumption.

Now I’m confused: in 8 you suggest that our primary identity is NOT as consumers, but now you inform us that the whole “purpose” of the American economy is to produce more consumer goods.

In any event, any Austrian should disagree with you: the “American economy” has NO purpose whatsoever; rather, only individuals, acting alone and in groups, have purposes. Such purposes may necessitate purchases of goods and services, but I would wager that no one has a purpose of simply consuming consumer goods.

10. “Our national happiness peaked in the 1950s, the same time that this consumption mania exploded. Hmmm. Interesting coincidence,” Leonard says

Leonard hasn’t offered a conclusion, but simply offered a rather pedestrian suggestion that consumerism may adversely affect personal happiness – a viewpoint that is widely echoed by religious leaders and psychologists. I don’t believe that Austrians disagree axiomatically here – did I miss something?


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