Friday, August 21, 2009

PFF flays Techdirt post on DoJ statutory damages brief in Thomas-Rasset case

Earlier this week, I corrected the record on Techdirt's falsehoods about various Department of Justice attorneys who had once represented recording industry clients while in private practice. Today at the Progress & Freedom Foundation's blog, Tom Sydnor takes on Techdirt's numerous misstatements and mischaracterizations of the law regarding statutory damages, as well as the facts of the Jammie Thomas-Rasset case. The post by Sydnor, a former Counsel for Intellectual Property and Technology on the Senate Judiciary Committee, is lengthy, but highly substantive, and well worth reading.


  1. Sydnor? The guy about whom the boss of LimeWire was able to tell "Sydnor says he went and installed LimeWire on a computer and that it immediately started sharing (all of the files) on the computer and that it was a security disaster. What he failed to mention is that in order to achieve that result he had to have taken that computer and installed a previous version of LimeWire on it. He then, really, deliberately had to go and remove all of the security settings on it, ignore countless warnings and consciously share file by file all of the files he was talking about. He then had to uninstall LimeWire from that computer and then reinstall the newer version which just picked up the settings he previously had put on it. He gives the impression that any time you install Limewire it goes and shares all these files and that is just absolutely untrue"? (source: ) How can I trust what he's saying now?

  2. @Anonymous 6:29:

    I don't know enough about the LimeWire issue you reference to have an opinion. But I do know about the Thomas-Rasset case and the DoJ brief, and I have no reason whatsoever to doubt anything Sydnor said in the post I linked to. If you have some substantive criticism of it, go ahead and comment, but saying "I disagree with him on some other issue, so therefore he must be wrong here" is pretty weak.

  3. Let's not forget that Sydnor is the same guy caught totally making up stuff about Larry Lessig:

    For someone to have credibility on such things, it would help if he wasn't shown to have been wrong on so many things in the past. Not just wrong, but clearly wrong in a way designed to attack individuals personally in a way that just happens to line up with what his employers' funders would like.

    Pretty weak to give a shout out to him given his history as a paid attack dog.

  4. This was a post highlighting a specific post by Sydnor. If you want to comment on his post that I reference here, great. But pointing out other things he's written with which you disagree is really beside the point.

  5. Surely, you understand, Ben, that Syndor's history is relevant to evaluating his piece. But then, one only needs scan the piece to suspect that he may not be presenting a fair, complete, and objective assessment.

  6. Seems to me that the way to evaluate his piece is to compare it against the facts and the law that he actually discusses. All are easily check-able. Instead, these commenters are saying, "Well, I disagree with something else he wrote; therefore he must be wrong here." Not terribly convincing.

  7. Mr. Sheffner: hi, this is Tom Sydnor. Thanks for the kind words, and I wanted to reply, briefly to the first “two” commenters—by doing what you suggest. Let’s call those commenters, in order of their postings, “Anonymous #1” and “Anonymous #2,” even though they may actually be the same commenter…. In any case, I’ll take them both—on the merits.

    First, as to Anonymous #1's claim that LimeWire's CEO has "proven" that I cannot be trusted, here is a link to a new post that contains the detailed reply that I long ago provided to Computerworld to refute to Mr. Gorton’s frivolous complaints about my latest paper on inadvertent file-sharing:

    In short, Anonymous #1 would have had to be affected by biases of Masnickian proportions before (s)he could be unwise enough to assume that LimeWire and Mr. Gorton would be more likely than I to accurately describe how the LimeWire program behaves.

    Here is a link to my first paper on inadvertent sharing:

    And here is a link to my second paper on inadvertent file-sharing, which refuted LimeWire’s pathetic attack on my first paper:

    And here is a link to my third paper, which easily refuted LimeWire’s claim that the newer versions of its program, LimeWire 5, had “put the final nail in the coffin” of inadvertent file sharing:

    In short, had Anonymous #1 actually read the relevant source materials, (s)he would have realized that Mr. Gorton’s Computerworld interview was just another vacuous attack-poodle nipping at the heels of concededly valid main arguments.

    My latest paper argued: 1) that LimeWire 5.1 was a knowingly dangerous program, and 2) that its behavior reveals multiple violations of LimeWire’s own Voluntary Best Practices.

    Note that Mr. Gorton’s Computerworld example of my alleged perfidy fails to refute (or even contest) either claim—not to mention its inaccuracy. No doubt Mr. Gorton was upset that I so easily refuted his claim that a “default install” of LimeWire 5.1 “will not permit” sharing of documents. But that claim was dangerous false: I proved it, and when caught making this misrepresentation, Mr. Gorton did not dispute that his claim actually was false.

    Instead, he was reduced to claiming that my paper had “failed to mention” matters that my paper had actually analyzed in multi-page, screenshot-illustrated detail. Apparently, this was supposed to dupe the really gullible into thinking that the real problem here was that I had conveyed a misleading impression of just how false Mr. Gorton’s initial claim really was.

    So much for Anonymous #1.


  8. Mr. Sheffner: to complete my reply to the first two anonymous commenters, I will assure Anonymous #2 that I will also reply—within a few days and in exquisite detail—to his repetition of the frivolous second-hand accusations made in the linked-to blog post that one Timothy Lee once entitled Selective Quotations in the Sydnor Paper.

    Here is a link to Mr. Lee’s post, which I urge anyone concerned to read carefully so they can better enjoy the forthcoming reply:

    And here is a link to the paper that Mr. Lee was criticizing. It remains highly relevant because it focuses on the absurdity of a “solution” to the challenge of file-sharing advocated in Lessig’s 2004 book Free Culture and his 2008 book Remix:

    Note an ominous sign: Mr. Lee, like Mr. Gorton, was incapable of attacking my paper’s main argument. As for the substance of the second-hand, tangential attacks that he parroted, suffice it to say that months ago, I again provided Mr. Lee with the pinpoint-page-cite that would have let him re-check page 161 of Lessig’s book Code (1999) for himself to confirm that I had characterized its contents correctly while Mr. Lee’s second-hand source had misrepresented them. Sadly, Mr. Lee again chose to clench his eyes and not look.

    At the time, I prepared a very detailed reply, but ultimately decided not to publish it because I thought that—perhaps—Mr. Lee might have quietly checked some facts, grown a little, and have chosen to leave this unfortunate exchange in the past.

    But now, Anonymous #2 has re-raised the question of Master Lee’s credibility versus mine. Fine: though I have tried to bury this particular hatchet time and again, I can see that it will only stay buried after I bury it in the right place (rhetorically speaking).

    Consequently, I will update my long-prepared reply in order to assist those, like Anonymous #2, who make the mistake of thinking that Master Lee can be trusted to check his sources before he parrots very serious accusations that turn out to be so baseless that they backfire spectacularly.

    But I note the following: I repeatedly gave Master Lee opportunities to recognize and correct his childish mistakes before I stooped to doing his work for him. I will thus expect no whining should I be less than gentle while changing his rhetorical diapers.

    Keep up the fine work. --Tom

  9. I think it's Syndor's frequent use of snide, crass comments such as "attack-poodle nipping" and "changing his rhetorical diapers" that cause people to discredit his analysis across the board. While he may sometimes have valid points, it's hard to see them through all his vitriol.

  10. @Anonymous 3:24:

    If you don't like some of his language, fine. But it's striking that none of the comments here have raised a single substantive point about his post.

    I also think it's striking that all of the commenters criticizing Sydnor have chosen to remain anonymous. I generally don't mind anonymous comments, because I am much more interested in the substance of what people have to say than their names (or pseudonyms). But I do find it pretty weak when anonymous commenters attack on non-substantive grounds someone (here, Sydnor) who had the guts to put his name behind what he has to say.

  11. Mr. Sheffner, let me be clear and named in this sea of anonymity: sometimes, I very deliberately use vitriolic rhetoric when confronting the even-more vitriolic arguments made by the Free-Cultist crowd. Sadly, that crew is deeply hypocritical: they are all-too-eager to employ the most extreme rhetoric, but all too prone to shriek and quiver when far less egregious rhetoric is directed at them. Consequently, I sometimes employ harsh rhetoric to make a point: maybe, Free Cultists, you would be better advised to tone down the debate and to learn the law and confront the facts, rather than resort to your usual histrionic shrieking.

    My point is simple: those who want a very civilized debate devoid of all resort to aggressive rhetoric will find me perfectly willing to reciprocate. But when I encounter Free-Cultists who want to do what Professor Lessig does—and equate copyrights with slavery and Satan, (after piously denouncing those who would do something like that)—then I tend to conclude that they perceive some rhetorical advantage in such hypocrisy. For that reason, I will reserve the right to deprive them of whatever rhetorical advantage that they seem to perceive in such tactics.

    So I would ask the preceding “anonymous” commenter this: Do you agree that Professor Lessig’s far more aggressive rhetoric “discredit[s] him across the board”? Do you agree that the oft-raving lunacy of TechDirt “discredit[s]” Mr. Masnick “across the board?” Or are you just a hypocrite who tolerates the most extreme rhetoric from the like-minded, but piously condemns the gentler replies of those who disagree with you?

    Frankly, I can adapt to whatever rules of debate prevail, if they are enforced consistently. Personally, I would prefer restraint and reason, but these are not the hallmarks of copyright opponents. Until they are, I will reserve the right to meet their histrionics with rather “snide and crass” replies—even though I will be unable to equal the sort of slavery-and-Satan blather favored by the likes of Professor Lawrence Lessig, and even though I will be even happier to halt all resort to harsh rhetoric once the shrill shrieking subsides.


  12. Mr Sheffner: This is Tom Sydnor of PFF, returning to complete my response to Anonymous #2, who linked to Mr. Tim Lee's post Selective Quotations in the Sydnor Paper to support his claim that I was "caught totally making up stuff about Larry Lessig."

    As promised, I have now posted my response to Mr. Lee's amusingly self-destructive attacks on my integrity. Here is the link:

    I hope that this reply will reveal why I sometimes ignore the "commentary" of some so-called "libertarians" who tend to be so blinded by copyhate that they end up becoming the unwitting defenders of the most extreme claims made in works that would later be described, by their author, Professor Lawrence Lessig, as an extended "apology for regulation."

    Self-parody that flagrant generally requires no response. Nevertheless, at the request of Anonymous #2,I have provided one. So I hope that Anonymous #2 is pleased with his (or her) accomplishment.



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