We've written plenty of times about the so-called "think tank" the Progress & Freedom Foundation. The group, which has called itself a "free market" think tank appears to be anything but free market when it comes to intellectual property issues. For years, it's been a huge supporter of increasingly strengthening gov't granted monopolies, often resorting to highly questionable arguments, such as suggesting that
fair use harms innovation and that the DMCA shouldn't be changed because that would be
gov't meddling in the free market -- ignoring, of course, that the DMCA itself is actually meddling in the free market. For years, the face of PFF's twisted claims on copyright was Patrick Ross, who then moved on to become a
lobbyist for the entertainment industry (basically cementing what he was already doing at PFF with a more direct relationship). We thought it would be difficult to find someone who could twist arguments quite as much as Ross did, but PFF surprised us and went one step further.
It hired Tom Sydnor, who made quite a splash by writing one of the most ridiculous attack dog papers we've seen, taking a bunch of Larry Lessig comments completely out of context to
accuse him of being a communist sympathizer. It was pure McCarthyism. The worst was when a variety of others pointed out Sydnor's out of context comments and put them back in context -- and Sydnor still stood by the paper, refusing to admit he took a single comment out of context. The truth was that it was difficult to find a single comment that was accurately portrayed.
Based on this, I tend to be immediately extra skeptical of anything that comes out of PFF (Adam Thierer's work is usually good, but that seems the exception). Sydnor's latest
is an attack on the judge in the Jammie Thomas trial for declaring a
mistrial in her case for wrongly instructing the jury that simply making a file available should be considered infringement. As the judge realized (correctly, in our opinion, and the opinion of plenty of legal experts) this was a "manifest error of law." For copyright infringement to occur a
copy needs to be made. Simply making something available is not making an infringing copy. 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."
Sydnor, of course, conveniently ignores pretty much everything on the other side, including precedents, scholarly reviews and the three branches of government (not international treaties for the most part, since the relevant ones have all been written by the legacy industry -- so indeed, they agree with Sydnor's assessment, but that's hardly compelling). The fact is that there have been folks who have weighed in on both sides, and there have been widespread legal rulings on both sides of the "making available" issue, as well as scholarly reviews. In fact, William Patry, a much more widely recognized and respected copyright expert than Sydnor, has written extensively on the issue, and seems to disagree with what Sydnor repeatedly claims is "inarguable."
More importantly, the recent trend has been quite clear: most of the courts recently taking up the issue have realized how little sense it is to accuse someone of copyright infringement when no copy has been shown to have been made. There are some exceptions, certainly, but 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. Sydnor's decision to take some comments out of context, and then ignore the weight of the arguments on the other side, in order to paint the judge in this case as some sort of clueless rogue, is, tragically, fitting with PFF's reputation for throwing truth, reason and logic out the window in order to support the entertainment industry's position at all costs.
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