

What Larry Lessig Didn't Get - elidourado
http://www.cato-unbound.org/2009/05/04/declan-mccullagh/what-larry-didnt-get/

======
tc
Summary:

What Lessig wants is mostly right, but by refusing to trust the market to get
there, Lessig is willing to give power to DC politicians at the expense of
property rights and individual choice. Historically that seems like a bad
recipe for both freedom and innovation.

Lessig wants to believe that politicians could become "technocratic
philosopher kings," while failing to appreciate the systemic factors that
ensure that politicians will always be among the least noble and least
qualified to make the required judgments.

~~~
cduan
When you summarize the article this way (and I think this is a correct
summary), it's pretty obvious that Declan is misrepresenting Lessig's current
position.

Declan is probably right that this was _once_ Lessig's view. Larry saw the
frightening possibility that software coders could use their powers to
restrict our rights and freedoms, and saw protective legislation as the best
remedy.

As Declan points out, it is clear that legislators will _not_ remedy this
problem. What Declan omits, however, is that Lessig figured this out too,
several years ago.

His current view is that there is another force to counteract this
encroachment on consumers' rights: the consumers themselves. Ultimately, like
a good lawyer, Lessig still believes that the law is the solution to
protecting rights. But rather than hoping for the law to come down from on
high, he hopes to harness grassroots power to voice change from below.

This is what prompted his recent shift in academic focus to fighting
"corruption" in politics, through his "Change Congress" movement. His argument
is that if Congress is too "corrupt" (he has a special definition of
"corrupt," I won't get into that), then good laws will never come about.

(Here's a link: <http://change-congress.org/> )

~~~
tc
I would agree with that. So here's what Lessig doesn't get now: he thinks that
the _money_ going into politics is the problem. It's not, it's just a symptom.
The immense centralized _power_ that Congress has to pick winners and losers,
and to grant special favors, is the problem. As long as that power exists, no
law can stop the money from flowing to the politicians (and their families).
The force at work here is that special interests get a positive return on
investment by supplicating to those in power, because those in power can give
them what they want at the expense of others.

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anigbrowl
Although I'm a classical liberal (as in, I believe in markets rather than
command economies), McCullagh would have us believe that private companies are
uninterested in monopolies or locking in their customers - and while he
provides examples of where lock-in has failed, it's alive and well in other
spaces, such as cellphones. McCullagh cites Hollywood lobbyists' influence on
copyright law, while skating over the question of how a libertarian approach
would help - indeed, I suspect it would wind up as a land grab on the public
commons, with the first to digitize getting ownership rights, much as a
copyright photograph of an old painting gains rights for the photograph (even
if it has no original content).

Though he's right about the weaknesses of slow-moving legislative supervision
of fast-moving technology, his conviction that it'll just work itself out
seems rather Pollyannaish. Michael Heller's _tragedy of the anti-commons_
analyzes the problems of fragmented ownership from an economic rather than a
philosophical perspective, and points up some flaws in libertarian theory;
[http://www.wdi.umich.edu/files/Publications/WorkingPapers/wp...](http://www.wdi.umich.edu/files/Publications/WorkingPapers/wp40.pdf)

~~~
billswift
The problem with your criticism of "private companies" is that they lack
enforcement power. Monopolies are nearly impossible without government
backing. The only non-statist monopoly I can see would be a secure trade
secret - like the formula for Coke or the Shipstones of Heinlein's novel
"Friday", and even they are vulnerable to substitutes.

As for the anti-commons, I can't see that it applies here, since the networks
are already private as are all "creative works" (since automatic copyright has
existed since the 1978 revision).

~~~
ubernostrum
"Monopolies are nearly impossible without government backing."

As they say on Wikipedia, "citation needed".

~~~
anamax
Feel free to provide a counter-example.

As to the examples, every cable-service monopoly in the US has govt backing.
The postal service monopoly has govt backing. Intel uses patents (read govt
backing) to limit the number of x86 producers. The old AT&T's long distance
monopoly had govt backing, lost it, and then sprint and others started.

Standard Oil almost made it without govt backing, but we'll never know if they
could have held.

~~~
ubernostrum
Given that, in the US, government intervention mostly seems to consist of
_busting_ monopolies, I'm just a bit wary of the statement that no monopoly
can exist without government support.

It seems to me that it is in the nature of a "true" free-market enterprise to
seek, as much as possible, to neutralize the operation of the market in order
to ensure the enterprise's survival. And history seems to provide some
examples of such -- all manner of cartels, trusts, etc. have been devoted to
nothing more or less than bringing the operation of the free market to an end,
as quickly and effectively as possible.

~~~
anamax
> Given that, in the US, government intervention mostly seems to consist of
> busting monopolies,

Oh really? How are you measuring "mostly"? I see millions of patents. I see
thousands of govt franchises.

> I'm just a bit wary of the statement that no monopoly can exist without
> government support.

I'm confused why anyone would think that a govt that "busts monopolies"
couldn't also support them.

> all manner of cartels, trusts, etc. have been devoted to nothing more or
> less than bringing the operation of the free market to an end, as quickly
> and effectively as possible.

You're forgetting that a cartel or trust can only "regulate" behavior of its
members. It can't affect transactions between third parties unless govt steps
in.

Yes, one can imagine a situation where a cartel owns all of the relevant
resource, but, apart from patents, that's quite rare.

~~~
ubernostrum
"I see millions of patents. I see thousands of govt franchises."

Ah, yes, the vaunted trick of slyly redefining a term out from under the
interlocutor. While it is true that a patent is an exclusive right and thus a
form of monopoly, this type of monopoly is not what I was talking about and
you were well aware of that. If you're so distrustful of your own arguments
that you have to resort to rhetorical tricks to try to pull attention away
from them, perhaps you should spend some more time thinking about the issue.

"I'm confused why anyone would think that a govt that "busts monopolies"
couldn't also support them."

And I never suggested that a government cannot support a monopoly, or that no
government has ever done so. This really makes you look desperate, you know?
You start by trying the old redefinition trick, and then proceed into stuffing
words into my mouth.

"You're forgetting that a cartel or trust can only "regulate" behavior of its
members. It can't affect transactions between third parties unless govt steps
in."

A cartel cannot enforce any part of its own operating agreements on third
parties, true, but that's not necessary to the creation or maintenance of a
monopoly and so is no counter-argument. A single large established entity, or
a group of such working together, can easily manipulate factors such as supply
chains, prices paid by the ultimate customers, etc. to cripple or destroy any
competition.

What's more, parts of the history of the US abound with examples of precisely
that behavior -- non-governmental entities subverting or disabling the
operation of the free market for their own benefit. Do you dispute this?

~~~
jibiki
> Ah, yes, the vaunted trick of slyly redefining a term out from under the
> interlocutor. While it is true that a patent is an exclusive right and thus
> a form of monopoly, this type of monopoly is not what I was talking about
> and you were well aware of that

You should probably describe the type of monopoly you are referring to, then.
I have a general idea what you are talking about, but not a perfect one.

> What's more, parts of the history of the US abound with examples of
> precisely that behavior -- non-governmental entities subverting or disabling
> the operation of the free market for their own benefit. Do you dispute this?

You should definitely give a few examples, it's not exactly clear what you're
talking about. For the record, I think that you're basically right: it's quite
possible to create a monopoly without government intervention (De Beers,
Microsoft, US Steel at one time.) However, it's difficult to maintain one
(previous examples notwithstanding.)

------
vozoscuro
Now that we know for sure any stripe of pol will sell out for power; we know
opensource is the only reasonable way to maintain the creative commons. Our
government is broken (bought and paid for by the Goldman Sachs Mafia) and will
stay that way for the foreseeable future. We should have no expectations for a
system that empowers the stupid, ignorant and greedy; and given the failures
of all other attempts to supplant this failed thing, there is hope and change
only in individual action: like donating code to the pleroma.

------
JereCoh
Sounds like someone is upset that Lessig is still smarter than him.

