Oh, dear.  Mr. Mike Masnick of Techdirt has thrown yet another apoplectic fit because a Fellow at the Progress and Freedom Foundation has articulated an interpretation of U.S. intellectual-property laws that conflicts with Mr. Masnick's own.  He has also conjoined two wholly separate claims: Mr. Masnick claimed that I unfairly characterized both the Thomas decision and Professor Lessig's lament of the demise of  Stalin's "bland communism."  I will address Mr. Masnick's first claim here, and his second in my next post.  But both of his claim were laughably self-defeating.

Mr. Masnick claimed that my paper challenging the logic of the recent ruling in Thomas was an "attack on the judge in the Jammie Thomas trial."  That was wrong: the Thomas opinion was unreasoned and unreasonable, but its author tried hard to correctly adjudicate the case--he even solicited amicus briefs.  But he was betrayed: the Defendant and her amici just regurgitated anti-copyright arguments with little regard for their merits or capacity to co-exist within a reasoned judicial decision.  As in Grokster, such tactics succeeded--at the district court.

Nevertheless, I did appreciate Mr. Masnick's comments on my paper--if only because they clarified why we usually disagree about copyrights.  Mr. Masnick claimed that, PFF "has called itself a 'free market' think tank [though] it appears to be anything but free market when it comes to intellectual property issues.  For years, it's been a huge supporter of strengthening government granted monopolies [sic]...."

I do favor granting artists enforceable exclusive rights, (a.k.a. "property rights"), in their works--even if Masnicks call those rights "government granted monopolies."  I do so because market competition between producers of a socially valuable resource can occur only when producers possess governments-granted, practically enforceable property rights in the resources that they produce.  This is a point missed by a few IPR opponents: We can only use market mechanisms to facilitate the production of expressive works if producers of those works have enforceable exclusive rights in the copies of the works that they produce.  No exclusive rights means no market competition to encourage and allocate the production of expression.  To quote Professor Carol Rose:

[P]roperty mobilizes self-interested humans to labour as nothing else does..... That is, property "internalizes the externalities of labour, concentrating its fruits on the labourer himself."  As Richard Posner has... remarked, "All of this has been well known for hundreds of years."

Apparently, Judge Posner was unaware of the alternative reality called "Techdirt." 

Predictably, Mr. Masnick can thus articulate no substantive objection to any of the arguments in the Thomas paper that he so deplores.   And that is telling.  That paper used basic logic to answer a question: Did the Thomas opinion show that it achieved its results by consistently applying the legal principles that Thomas identified as governing?   It answered "no," and if it erred, Mr. Masnick failed to explain why.  

For example, did Mr. Masnick conclude--as Thomas did--that one ambiguous sentence of legislative history overcomes the "strong presumption" that the Copyright Act's undefined statutory term "to authorize" has its ordinary meaning?  And if so, then how could he conclude that far more plentiful and powerful extrinsic evidence fails to show that "to distribute" was intended to have a specialized meaning?   Did Mr. Masnick conclude--as Thomas did--that the dictionary-definition of non-binding dicta becomes "binding precedent" when associated with one of an appellate court's three alternative holdings?  And if so, then how could he conclude that the Supreme Court's alternative holding in Tasini was not a binding precedent?  These and other challenges await those who grapple with the actual substance of the paper. 

Mr. Masnick's own "analysis" thus consisted mostly of ad hominem attacks: essentially, he argued that I must be wrong because "we" at Techdirt have often criticized the Progress and Freedom Foundation. 

But then Mr. Masnick mistakenly disclosed the substance of a TechDirt critique: He bragged that "we" at Techdirt claimed that a PFF Fellow argued that "fair use harms innovation" when he claimed that we should not repeat Grokster by letting the possibility of fair use excuse the distribution of devices that will inevitably cause pervasive infringement.  Apparently, this silly charge was the most devastating PFF-critique that Mr. Masnick could exhume from TechDirt's ceaseless effluent.

Then Mr. Masnick made his truly fatal error: He digressed briefly into the substance of Thomas.  Mr. Masnick said, "In typical Sydnor fashion, not only does he claim that the judge was wrong, he makes the judge out to be totally off the reservation in making such a ruling, claiming that the judge 'misread or disobeyed precedents, federal treaties, scholarly reviews and the three branches of government.'" 

To be clear, though Mr. Masnick seemed to be quoting me, he was not.  He was just making a mistake often made by bloggers who derive their knowledge of their source materials from illiterate sentences cut-and-pasted, without attribution, from other blogs.

Nevertheless, that illiteracy did capture Mr. Masnick's main objection to my paper: Mr. Masnick argued that if some experts, (courts and scholars) have concluded that the Copyright Act does not provide a making-available right, then Thomas cannot "be totally off the reservation in making such a ruling...." 

People who can think for themselves call this the fallacy of argumentum ad verecundiam.  Resort to it can be deadly.  For example, in Grokster, 79 professors of intellectual law made arguments so absurd that they were rejected by the Defendants at oral argument and then by all 9 Justices of the Supreme Court.  For two reasons, Mr. Masnick's resort to this fallacy was particularly unwise. 

First, Mr. Masnick wrongly claimed that lots of published scholarship and many judicial opinions conclude that U.S. law does not provide a making-available right.  But the existing analyses to that effect are generally sparse, or passing and conclusory (like the Nimmer sentence quoted in Thomas).  As a result, Thomas repeated an error that has affected all making-available denials that I have seen. 

Denials must conclude that extrinsic evidence (e.g., legislative history), shows that in Section 106, "to authorize" was meant to have a specialized, (rather than ordinary) meaning.  But they must also conclude that extrinsic evidence fails to show that "to distribute" was meant to have a specialized meaning.  Unfortunately for them, the extrinsic evidence indicating that "to distribute" was meant to have a specialize meaning is far more plentiful and powerful than the one ambiguous sentence of legislative history that could--if construed unlawfully--suggest that "to authorize" may have been meant to have a specialized meaning. 

The same rule of law must govern the interpretation of "to authorize" and "to distribute"--both infinitives were enacted at the same time, by the same Congress, in the same sentence of the same section of the same Act.  Consequently, making-available-right deniers must identify some principle of law that could--if consistently applied, produce their desired result.  So far, I am aware of no one--in Thomas or elsewhere--who has done so.  Until someone does, the case against a making-available right remains unreasoned and inexplicable.  I discuss why in more detail here.  

Second, Mr. Masnick argued, in effect, that I overplayed my hand and discredited myself by arguing that reasonable people could not reasonably disagree about whether the Copyright Act provides a making-available right.  But Mr. Masnick got his facts backward--that was precisely what I criticized Thomas for doing.   

Mr. Masnick forgot that Thomas was unique: it was the first published judicial opinion that concluded that U.S. law provides no making-available right after confronting a critical objection: assuming, (as courts do), that Congress and the President exercise their Treaty and Foreign Commerce Powers competently and in good faith, then multiple Presidents, Congresses and expert agencies have, for over forty years, repeatedly construed the Copyright Act to provide a making-available right. 

Thomas agreed that this triggered a "deference doctrine" far older than the one adopted by the Supreme Court in Chevron.   Thomas held: "The Court... acknowledges that, given multiple reasonable constructions of U.S. law... the Court [must] adopt the reasonable construction that is consistent with the United States' international obligations."  Those "obligations" require the U.S. to provide authors with the exclusive right to make copies of their works available over the Internet.   Thomas thus concluded that everyone who has interpreted the Copyright Act to grant a making-available right must have been unreasonable.

Persons like Mr. Masnick always try to pretend that they are the reasonable center that must thanklessly repulse the raving zealotry of their unreasonable, biased opponents--hence Mr. Masnick's carefully posed Sydnor-went-too-far argument.  But Mr. Masnick forgot that Thomas had foreclosed his favorite pretense. 

So let me be very clear.  If Mr. Masnick agrees that a reasonable person could conclude that U.S. law provides a making-available right, then he concedes that my paper correctly concluded that the reasoning of Thomas was indefensible.  Mr. Masnick can only attack my paper and defend Thomas's reasoning if he decrees that only the unhinged--the unreasonable--could disagree with his preferred interpretation of the Copyright Act.  So, Mr. Masnick, do you agree that a reasonable person could conclude that the U.S. Copyright Act provides a making-available right?

Mr. Masnick also claimed that "most of the cases these days seem to be going against Sydnor's interpretation, which hardly makes it 'inarguable' or as crazy as the paper makes out."  Wrong: "most" of the existing cases support my argument. Footnote 77 of my paper cited 21 cases that have adopted interpretations of the Copyright Act that would provide a making-available right. 

Perhaps Mr. Masnick can cite 22 cases that have interpreted the Copyright Act to deny a making-available right.  But Mr. Masnick's favorite blog reported that only Thomas and one other case do so.  Off the top of my head, I can think of at least 3 cases that do so--though there could be 4, were one to count dictionary-definition dicta extraneous to one of three alternative holdings in a case about the interpretation of a contract.

[Copyrights] are different because they can equally be regarded as defining property rights. In a literal sense, if I have a property right to a particular piece of land, I can be said to have a monopoly with respect to that piece of land defined and enforced by the government.

posted by Thomas Sydnor @ 10:45 AM |

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