Fred von Lohman’s Thimblerig, or Fun with Fallacies on the Short Con

Anyone who has taken a high school or college English composition class remembers studying logical fallacies. This would have been the part where they taught you how to separate the horse from the horse EFFluvia in advertising, political speech and editorials.

Fallacies were (and still are) a pet favorite of mine. I had the good fortune to have had a wonderful professor for symbolic logic and I tutored the subject for a year in college.

Any clear thinker much less a good lawyer avoids fallacies like the plague. (For those of you unfamiliar with logical fallacies, let us rely on the wisdom of mobs and I refer to you the wikipedia entry under “fallacies”.)

I enjoyed reading a recent editorial published in the Washington Post by Fredrich von Lohman of the Electronic Frontier Foundation entitled “Copyright Silliness on Campus”.

(For those of you who don’t know, von L, Grand Mystic Knight of the EFFluviati, represented one of the defendants in the Grokster case at the 9th Circuit Court of Appeals and did a really and truly stellar job of making the losing argument that won the day but was thrashed to bits on appeal to the U.S. Supreme Court in the landmark—and highly predictable—MGM et al v. Grokster et al copyright ruling. In Grokster, the EFFluviati were concerned about arguing the legal principle that “sharing” otherwise illegal copies of recordings with 60 million of your closest friends was somehow protected by the Sony case. Whew. Glad we got that sorted out. Thank goodness we blew millions on legal fees establishing the rule–the “embarrassingly straightforward” rule–that bad guys don’t get to make the law. Some believe that the true purpose of Grokster was to delay the shut down of p2p sites long enough to allow rampant illegal copying to take hold in society and begin to further weaken the recording industry. Unfortunately, the industry took that bait.)

Now those of you who read the editorial and also read these blogs may find that parts of that editorial have a familiar ring to them, although I have to say that I have neither the age nor the gravitas to dismiss legitimate inquiries of Members of Congress as “silliness”. But then I’m just a country lawyer, and I’m not as smart as these city fellers.

However, I did notice a couple things in the editorial’s reasoning that are worth pointing out and are a great way to demonstrate two of my favorite logical fallacies: The Fallacy of Equivocation and the Fallacy of the True Glaswegian.

The section of the editorial I’m focused on follows some strong criticism of the Congress for investigating downloading on campus—that is, permanent downloads—and goes on to state the following:

“Universities already pay blanket fees so that student a cappella groups can perform on campus, and they also pay for cable TV subscriptions and site licenses for software. By the same token, they could collect a reasonable amount from their students for “all you can eat” downloading.”

The recording industry is already willing to offer unlimited downloads with subscription plans for $10 to $15 per month through services such as Napster and Rhapsody. But these services have been a failure on campuses, for a number of reasons, including these: They don’t work with the iPod, they cause downloaded music to “expire” after students leave the school, and they don’t include all the music students want.

The only solution is a blanket license that permits students to get unrestricted music and movies from sources of their choosing.”

Read that section again and see if you catch the grift.

Now watch what just happened.

The argument follows this line of reasoning:

The recording industry grants blanket licenses for unlimited downloads to subscription services;
Therefore, the recording industry should grant blanket licenses to universities to legalize the unlimited downloads students already enjoy.

This has the ring of truth, yes? But only if you (the mark) don’t know that the Napster and Rhapsody subscription services don’t include permanent downloads (what students get from p2p networks) in the subscription fee, just streams and tethered downloads (never available on p2p). So the words “unlimited downloads” in the opening proposition have a totally different meaning than “unlimited downloads” in the conclusion.

And so here’s the grift: von Lohman does not make this distinction clear at all. This allows him to lead the unsuspecting mark to the conclusion the writer wants to foist on readers without having to go through that nasty step of dealing with facts. (This is because the EFF have been trying to grift their way to legalizing mob behavior that is patently illegal and also set the rates to compensate their victims. That’s also what they tried to do in the Grokster case, and lost in no uncertain terms.)

No students are interested in tethered downloads, they want permanent downloads. And the context of the editorial is that it is criticizing the Congress for inquiring into what the universities are doing about permanent downloads. The whole point of the editorial is what to do about permanent downloads.

So the fee and licensing regime that von Lohman implies is appropriate as compensation to artists for permanent downloads is actually charged for something entirely different—tethered downloads or streams in which no permanent copy is purchased.

This is just a first rate example of the Fallacy of Equivocation, meaning that the writer relies on the reader’s ignorance of the ambiguity in “unlimited download” when used in the subscription context compared to “unlimited download” when used in the permanent download (or p2p) context. Copyright owners typically share a pool of money from subscription services based on usage, and typically charge a wholesale price of around $0.70 per download, and retailers typically charge a retail price of around $0.99 for each permanent download.

Meaning that if a student downloads as much as the writer seems to imply, let’s say 500 tracks a month, that’s the difference between $500 per month per student and $15 a month per student.

There is, of course, a more subtle Fallacy of Equivocation under the surface of the writer’s fallacious argument. In the case of the subscription services the writer mentions, records are kept of whose track is played when so that proper accountings can be rendered and the subscription pool can be divided up amongst the proper copyright owners. The same is true of webcasting or any other legitimate licensed service.No such accounting system exists in the wild and wooly world of illegal p2p, so even if there were to be a per user fee, it could not be allocated to copyright owners.

If you know even a little bit about the way online services price and for what kinds of transmissions, you will see through this fallacious reasoning immediately. Otherwise, such writing only goes to confuse the issues.

Now for my favorite: The Fallacy of the True Glaswegian. (This one is actually known by a variety of names after the “True” part, but Glaswegian is my favorite.)

Back to the editorial’s text, in which the writer further admonishes Members of Congress lost in their “silliness”, poor addleheaded souls:

“History is sure to judge harshly everyone responsible for this absurd state of affairs. Our universities have far better things to spend money on than bullying students. Artists deserve to be fairly compensated, but are we really prepared to sue and expel every college student who has made an illegal copy? No one who takes privacy and civil liberties seriously can believe that the installation of surveillance technologies on university computer networks is a sensible solution.”

You see where this is heading, I’m sure. It’s one of those circular things.

To paraphrase: If Angus, a Glaswegian, who puts sugar on his porridge, is proposed as a counter-example to the claim “No True Glaswegian puts sugar on his porridge”, the Fallacy of the True Glaswegian would run as follows:

(1) Angus puts sugar on his porridge.
(2) No True Glaswegian puts sugar on his porridge.
Therefore:(3) Angus is not a True Glaswegian.
Therefore:(4) Angus putting sugar on his porridge is not a counter-example to the claim that no True Glaswegian puts sugar on his porridge.

In application:

(1) Christian, one who takes privacy and civil liberties seriously, believes installation of surveillance technologies on university computer networks is a sensible solution to the problem of massive copyright infringement;
(2) No one who takes privacy and civil liberties seriously, i.e., a True Civil Libertarian, can hold such beliefs;
(3) Christian is not a True Civil Libertarian (or is not as True a Civil Libertarian as [the writer].
Therefore:(4) Christian is not a counter-example to the claim that no True Civil Libertarian can hold such beliefs.

Well, it’s not so bad. There was one bit that the writer got correct: “History is sure to judge harshly everyone responsible for this absurd state of affairs.”

[For you Honor Code buffs: The Fallacy of Equivocation is also known in military circles as “quibbling”. “Quibbling is an equivocation and an evasion or shifting from the truth. It is an attempt to confuse through words or deeds that which really occurred. An example of quibbling is… A cadet, responsible for preparing an original report for grade but who, in fact, copied another cadet’s paper, was asked if the work accomplished was his own. His response, ‘Sir, that’s my handwriting’ is ‘quibbling’ or equivocating, is a violation of the Honor Code and deemed just as serious as a blatant lie.”

Thank goodness lawyers or editorial writers are not held to such standards.]