June 29, 2007  ·  Lessig

My entry July 3, 2006:

Since my [first] kid was born, we’ve tried to have a month alone off the grid every year. That starts this year in 6 hours. I have not asked anyone to guest blog while I’m gone, so this space will be quiet. There are a couple times when I might make a surprise return (they’re all preprogrammed). But my apologies for the silence otherwise. This year has been an especially burdensome year. We really need this time alone.

That happens again this year, again, six hours from now. This year has not been especially burdensome. Indeed, the American Academy in Berlin is heaven, and I’ve gotten lots of good work done. But the promise was for good times and bad, regardless, a month alone with my family.

June 25, 2007  ·  Lessig

Loads of thanks to Ryan Gantz and M. David Peterson for help in the redesign of lessig.org. There are no doubt a bunch of details to finish, but I’m grateful for the amazing work in getting it live. Soon, as promised, the Mixter site will go live with content to use and reuse. So stay tuned to others doing it, better.

Update: ok, a little hiccup. But now we’re back, and so too are the thanks.

June 22, 2007  ·  Lessig

A great speech by Mr. Obama about limiting corruption in government. The fact sheet has lots more substance in it. This is great progress, though recommendation (2) is a bit funny. I would think the right way to avoid the revolving door is to forbid employment a certain number of years after working in the Administration. If you tie it to the life of the Administration, then there’s not much protection for the last years of the term.

June 22, 2007  ·  Lessig

The response to my channel changing has been overwhelming — literally, with the emails and well wishes. Thank you (and I’m sorry for the slowness in responding). Some have asked whether this means all IP disappears from here, or elsewhere, as of now. Answer: No. I’ve still got a bunch of things in the pipes (an op-ed in the Post; a couple more Internet Policy videos, a book, and some committed talks), as well as a cert petition in Kahle that would be much clarified if the 10th Circuit decided Golan.

Meanwhile, thanks again for the kind words, and many great ideas.

June 19, 2007  ·  Lessig

During my keynote at the iCommons iSummit 07, I made an announcement that surprised some, but which, from reports on the web at least, was also not fully understood by some. So here again is the announcement, with some reasoning behind it.

The bottom line: I have decided to shift my academic work, and soon, my activism, away from the issues that have consumed me for the last 10 years, towards a new set of issues. Why and what are explained in the extended entry below. | technorati |

Three people I admire greatly are responsible for at least inspiring this decision.

The first is Obama. Six months ago, I was reading Obama’s (really excellent) latest book. In the beginning of the book, he describes his decision to run for the United States Senate. At that point, Obama had been in politics for about 10 years. Ten years, he reflected, was enough. It was either “up or out” for him. He gambled on the the “up.” We’ll see how far he gets.

But for me, Obama’s reflection triggered a different thought. It’s been a decade since I have become active in the issues I’m known for. Over this decade, I’ve learned a great deal. There has been important progress on the issues — not yet in Congress, but in the understanding of many about what’s at stake, and what’s important. Literally thousands have worked to change that understanding. When we began a decade ago, I would have said it was impossible to imagine the progress we’ve made. It is extraordinarily rewarding to recognize that my pessimism notwithstanding, we are going to prevail in these debates. Maybe not today, but soon.

That belief (some think, dream), then led me to wonder whether it wasn’t time to find a new set of problems: I had learned everything I was going to learn about the issues I’ve been working on; there are many who would push them as well, or better, than I; perhaps therefore it was time to begin again.

That thought triggered a second, this one tied to Gore.

In one of the handful of opportunities I had to watch Gore deliver his global warming Keynote, I recognized a link in the problem that he was describing and the work that I have been doing during this past decade. After talking about the basic inability of our political system to reckon the truth about global warming, Gore observed that this was really just part of a much bigger problem. That the real problem here was (what I will call a “corruption” of) the political process. That our government can’t understand basic facts when strong interests have an interest in its misunderstanding.

This is a thought I’ve often had in the debates I’ve been a part of, especially with respect to IP. Think, for example, about term extension. From a public policy perspective, the question of extending existing copyright terms is, as Milton Friedman put it, a “no brainer.” As the Gowers Commission concluded in Britain, a government should never extend an existing copyright term. No public regarding justification could justify the extraordinary deadweight loss that such extensions impose.

Yet governments continue to push ahead with this idiot idea — both Britain and Japan for example are considering extending existing terms. Why?

The answer is a kind of corruption of the political process. Or better, a “corruption” of the political process. I don’t mean corruption in the simple sense of bribery. I mean “corruption” in the sense that the system is so queered by the influence of money that it can’t even get an issue as simple and clear as term extension right. Politicians are starved for the resources concentrated interests can provide. In the US, listening to money is the only way to secure reelection. And so an economy of influence bends public policy away from sense, always to dollars.

The point of course is not new. Indeed, the fear of factions is as old as the Republic. There are thousands who are doing amazing work to make clear just how corrupt this system has become. There have been scores of solutions proposed. This is not a field lacking in good work, or in people who can do this work well.

But a third person — this time anonymous — made me realize that I wanted to be one of these many trying to find a solution to this “corruption.” This man, a Republican of prominence in Washington, wrote me a reply to an email I had written to him about net neutrality. As he wrote, “And don’t shill for the big guys protecting market share through neutrality REGULATION either.”

“Shill.”

If you’ve been reading these pages recently, you’ll know my allergy to that word. But this friend’s use of the term not to condemn me, but rather as play, made me recognize just how general this corruption is. Of course he would expect I was in the pay of those whose interests I advanced. Why else would I advance them? Both he and I were in a business in which such shilling was the norm. It was totally reasonable to thus expect that money explained my desire to argue with him about public policy.

I don’t want to be a part of that business. And more importantly, I don’t want this kind of business to be a part of public policy making. We’ve all been whining about the “corruption” of government forever. We all should be whining about the corruption of professions too. But rather than whining, I want to work on this problem that I’ve come to believe is the most important problem in making government work.

And so as I said at the top (in my “bottom line”), I have decided to shift my academic work, and soon, my activism, away from the issues that have consumed me for the last 10 years, towards a new set of issues: Namely, these. “Corruption” as I’ve defined it elsewhere will be the focus of my work. For at least the next 10 years, it is the problem I will try to help solve.

I do this with no illusions. I am 99.9% confident that the problem I turn to will continue exist when this 10 year term is over. But the certainty of failure is sometimes a reason to try. That’s true in this case.

Nor do I believe I have any magic bullet. Indeed, I am beginner. A significant chunk of the next ten years will be spent reading and studying the work of others. My hope is to build upon their work; I don’t pretend to come with a revolution pre-baked.

Instead, what I come with is a desire to devote as much energy to these issues of “corruption” as I’ve devoted to the issues of network and IP sanity. This is a shift not to an easier project, but a different project. It is a decision to give up my work in a place some consider me an expert to begin work in a place where I am nothing more than a beginner.

So what precisely does this mean for the work I am doing now?

First, and most importantly, I am not leaving Creative Commons, or the iCommons Project. I will remain on both boards, and continue to serve as CEO of Creative Commons. I will speak and promote both organizations whenever ever I can — at least until the financial future of both organizations is secure. I will also continue to head the Stanford Center for Internet and Society.

But second, and over the next few months, I will remove myself from the other organizations on whose boards I now serve. Not immediately, but as I can, and as it makes sense.

Third, in general, I will no longer be lecturing about IP (whether as in TCP/IP or IPR) issues. No doubt there will be exceptions. In particular, I have a few (though because this decision has been in the works for months, very few) obligations through the balance of the year. There will be others in the future too. But in general, unless there are very strong reasons, I will not be accepting invitations to talk about the issues that have defined my work for the past decade.

Instead, as soon as I can locate some necessary technical help, I will be moving every presentation I have made (that I can) to a Mixter site (see, e.g., ccMixter) where others can freely download and remix what I’ve done, and use it however they like. I will continue to work to get all my books licensed freely. And I am currently finishing one last book about these issues that I hope will make at least some new contributions.

Fourth, these pages will change too. My focus here will shift. That will make some of you unhappy. I’m sorry for that. The blog is CC-BY licensed. You’re free to fork and continue the (almost) exclusively IP-related conversation. But I will continue that conversation only rarely. New issues will appear here instead.

Fifth, some will think this resolution sounds familiar. In the beginning of the Free Culture talk I gave at OSCON 5 years ago, I said that talk was going to be my last. In fact, what I intended at the time was the last before the argument in the Eldred case. In my nervousness, I didn’t make that intent clear then. The literally hundred of talks since (85 last year alone) should have made that obvious.

But again, this is not a resolution of silence. It is a decision to change channels. This new set of issues is, in my view, critically important. Indeed, I’m convinced we will not solve the IP related issues until these “corruption” related issues are resolved. So I hope at least some of you will follow to this new set of questions. For I expect this forum will be central to working out just what I believe, just as it has in the past.

Finally, I am not (as one friend wrote) “leaving the movement.” “The movement” has my loyalty as much today as ever. But I have come to believe that until a more fundamental problem is fixed, “the movement” can’t succeed either. Compare: Imagine someone devoted to free culture coming to believe that until free software supports free culture, free culture can’t succeed. So he devotes himself to building software. I am someone who believes that a free society — free of the “corruption” that defines our current society — is necessary for free culture, and much more. For that reason, I turn my energy elsewhere for now.

So thank you to everyone who has helped in this work. Thanks especially to everyone who will continue it. And thanks the most to those who will take positions of leadership in this movement, to help guide it to its success. Just one favor I ask in return: when you get to the promised land, remember to send a postcard.

June 13, 2007  ·  Lessig

I’m grateful for the replies to my disclosure statement and statement of principle. Some of these have led me to reform — in an important way — at least one part of the statement. I’ve reposted the statement in the extended entry below, but the key difference is in response to a great point made by Stuart Ballard. Doesn’t my rule, he asks, create perverse incentives? A simple way for an opponent to silence me — donate to, e.g., CC?

I plead humility as the only defense to this obvious omission: It never occurred to me that anyone would waste their money in that way. And while I believe the chance that an opponent would waste their money to silence me is tiny, I do hope that the NC principle becomes common, adopted by people for whom such an expenditure wouldn’t be a waste. I’ve therefore modified the principle as it applies to indirect donations — meaning donations to entities that indirectly benefit someone because they make him or her materially better off, or lessen a duty he or she has to those institutions: With respect to those donations, I will either not recommend a policy, or if I do, I will disclose the benefit.

This reformulation is in apparent tension with my rejection of disclosure generally. But as I see it now, this is the simplest way to avoid the (wholly unlikely) perverse incentive.

There were other useful comments, some of which I address here:

SethF: “not a disclosure statement.” Ok, how about a disclosure statement and a statement of principle.

redpop has a nice point about other influences which, s/he rightly observes, may also bend a policy recommendations. As s/he writes, “You seem to imply, for example, that you will, push someone else’s work if they push yours, regardless of whether you would otherwise do so.” If that is implied, I don’t mean the implication. We all have an obligation to be true to our principles. The general practice we adopt to police that obligation, however, is laissez faire. The NC principle is one compromise on that laissez faire approach — a rule that limits the potential for one kind of influence. But of course, one should avoid any inappropriate influence. In the list I spoke of in my original post, some influences I think are totally appropriate. Some are not. My only point is I’m not creating an additional rule to ferret the one from the other — beyond, again, money.

Jardinero1 thought his point not good enough without wrapping it in sarcasm. I disagree. He asks a very good question: “Which brings me to my point Professor: Who cares why you or anyone else shills?” First, my target is not me (alone). It is a profession(s). So why should we care “why … anyone else shills?” Great question, which goes the heart of what I see as the corruption here. We should avoid influences, in my view, that have nothing to do with the merits of the question at issue. For example: Imagine a doctor told you that you should try risky drug X for your life threatening condition. In my view, you should care whether your doctor is a stock holder in the company making the drug. Why? Because deciding what treatment is good for you is hard enough without the doctor weighing into the balance (or trying not to weigh into the balance) his own personal financial wellbeing. The same with professors. The same with politicians. All are called upon to make hard judgments. The extra-complexity of self-interest will not help them make those judgments well.

Which leads to the second point: In my view, if, e.g., a doctor recommends a drug, or even pushes the drug because he believes in it, so long as s/he has followed the NC principle, it is not “shilling.” In my view, a distinction must be drawn. Failing to draw such a distinction — by calling everything “shilling” — is a cover for more corruption.

Dan Collier asks about retirement benefits: “If so, statements about Google Books, for example, may directly impact Google share prices and indirectly effect your investments.” True enough. I don’t hold stock in individual companies. If I did, I would consider the same limitation to apply.

anon asks whether my list of board memberships was complete. It wasn’t, but now is. I’ve been a bad board member of MusicBrainz, and my guilt led me to forget it in the list. But the project is fantastic and shouldn’t be forgotten. My apologies.

I’ll think about this more as I read more. The disclosure and statement will be linked from my contact tab. Thanks again for the help.

extended entry

Following the good practice of others, and following suggestions of inconsistency by others, I offer the following disclosure statement.

How I make money

I am a law professor. I am paid to teach and write in fields that interest me. Never is my academic research directed by anyone other than I. I am not required to teach any particular course; I am never required or even asked by anyone with authority over me to write about a particular subject or question. I am in this important sense a free laborer.

I also get paid for some of my writing. I write books that are sold commercially. Three (and I hope soon all) of my books are also available freely in electronic form. I have been commissioned to write articles for magazines. But in all cases, while I may contract about the subject matter I will address, I never contract about the substance.

I have (though rarely) been paid to consult on matters related to my work. If I have, I conform my behavior to the NC Principle articulated below.

I am sometimes paid to speak. If I am, I will contract as to subject matter (e.g., whether the speech is about innovation, or copyright, or privacy, etc.). I do not contract as to substance. In addition to an honorarium, I also accept payment to cover travel expenses.

I am not compensated for my work with nonprofits.

Tech

I am a paying customer of Movable Type. Marc Perkel gives me a great hosting deal. If ever anyone sends me a product to review, I am resolved not to write about it.

Business Attachments

I have no regular clients. I am on board of a number of non-profits, including EFF, FSF, PLOS, Software Freedom Law Center, FreePress, PublicKnowledge, MusicBrainz, and Creative Commons.

I serve on no commercial boards. I don’t take stock-options to serve on boards or advisory boards.

The Non-Corruption (NC) Principle

It is a special privilege that I have a job that permits me to say just what I believe, and not what I’m paid to say. That freedom used to be the norm among professionals. It is less and less the norm today. Lawyers at one time had a professional ethic that permitted them to say what they believe. Now the concept of “business conflicts” — meaning, a conflict with the commercial interests of actual or potential clients — silences many from saying what they believe. Doctors too are hired into jobs where they are not allowed to discuss certain medical procedures (See, e.g., Rust v. Sullivan). Researchers at “think tanks” learn who the funders are as a first step to deciding what questions will be pursued. And finally, and most obviously, the same is true of politicians: The constant need to raise money just to keep their job drives them to develop a sixth sense about what sorts of statements (whether true or not) will cost them fundraising dollars.

With perhaps one exception (politicians), no one forces professionals into this compromise. (The exception is because I don’t see how you survive in politics, as the system is, without this compromise, unless you are insanely rich.) We choose the values we live by ourselves. And as the freedom I have to say what I believe is the most important part of my job to me, I have chosen a set of principles that limit any link between money and the views I express.

I call these principles “non-corruption” principles because I believe that behavior inconsistent with these principles, at least among professionals, is a kind of corruption. Obviously, I don’t mean “corruption” in the crudest sense. Everyone would agree that it is wrong for a global warming scientist to say to Exxon, “if you pay me $50,000, I’ll write an article criticizing global warming.” That is not the sort of “corruption” I am talking about.

I mean instead “corruption” in a more subtle sense. We all understand that subtle sense when we look at politicians. We don’t recognize it enough when we think about lawyers, doctors, scientists, and professors.

I want to increase this recognition, even at the risk of indirectly calling some of my friends “corrupt.” Norms are uncertain here. I hope they change. But until they change, we should not condemn those with differing views. We should engage them. I intend this to be the beginning of that engagement.

So, the NC principle:

The simple version is just this: I don’t shill for anyone.

The more precise version is this: I never promote as policy a position that I have been paid to advise about, consult upon, or write about. If payment is made to an institution that might reasonably be said to benefit me indirectly, then I will either follow the same rule, or disclose the payment.

The precise version need to be precisely specified, but much can be understood from its motivation: “Corruption” in my view is the subtle pressure to take views or positions because of the financial reward they will bring you. “Subtle” in the sense that one’s often not even aware of the influence. (This is true, I think, of most politicians.) The rule is thus designed to avoid even that subtle force.

So: “I never promote as policy a position“: This is meant to distinguish work as a lawyer from work as an advocate. I don’t do legal work for money. But everyone understands that when a lawyer speaks for his client, he speaks for his client. The corruption I am targeting is a lawyer or academic speaking not for a client, but presumptively, for the truth. And “promote” means in any public forum — so an op-ed, testimony, or a lecture.

that I have been paid “: “Paid” means directly or indirectly. “Directly” would be direct compensation to me, or support for my research, or other funding I otherwise wouldn’t have been entitled to. “Indirectly” means compensation to an entity that I was responsible for from an easily identified interest.

This line is hard to draw in many cases, but relatively easy to draw as it applies to me.

For example, I do no fundraising for my law school. My position, and the Center I run there, depends in no way upon my raising funds for either. Further, the commitment I have from my dean to support the Center is independent of any fundraising. As Dean Sullivan told me when she recruited me, “fundraising is my problem. Yours is to do the work.”

Thus, if you give a substantial amount of money to Stanford, you don’t, in my view, indirectly benefit me — because you have not made my life any different from how it was before you gave that money. (Indeed, given the hassle that usually runs with such gifts, you’ve likely made my life more difficult.)

Creative Commons presents a different question. A substantial contribution to Creative Commons — an entity which, as its CEO, I am responsible for — would, consistent with the NC principle, limit my ability to “recommend as policy a position” that was directly connected to the contributing entity.

So far, beyond the foundation grants CC has received, there have been two such “substantial” contributions to Creative Commons. With neither would I ever “recommend as policy a position” that benefited either — even if I believed, independently, that the position was correct. This doesn’t mean I wouldn’t help such people, or advise them. It simply means I would not publicly say something about their position, after such support was received.

I acknowledge one might well quibble with the “substantial” qualification here. Why not “any” rather than “substantial”? That may be the right position, at least ultimately. But as I view the matter now, the gifts beyond these two are so small as a proportion of CC’s budget that they don’t meaningfully change my work for CC at all.

to advise about, consult upon, or write about“: I mean this clause to include all the possible ways in which someone might try to make another person’s life better off financially. So sometimes people are paid money to write articles; sometimes special research programs are funded; sometimes a consulting fee is paid — all with the express promise that no “obligation” is intended. All of these count for purposes of this rule.

If payment is made to an institution that might reasonably be said to benefit me indirectly, then I will either follow the same rule, or disclose the payment.“: So the effect of this is to give me an option about whether indirect contributions result in silence by me or disclosure by me. Thus, if the RIAA gave CC $1m, I would decide either that I should not make policy recommendations that affect RIAA interests anymore, or that any such recommendations I make would be accompanied by disclosure.

But isn’t disclosure always enough?

Some would say this principle is too strict. That a simpler rule — indeed the rule that governs in most of these contexts — simply requires disclosure.

I don’t agree with the disclosure principle. In my view, it is too weak. The best evidence that it is too weak is the United States Congress. All know, or can know, who gives what to whom. That hasn’t chilled in the least the kind of corruption that I am targeting here. More generally: if everyone plays this kind of corruption game, then disclosure has no effect in stopping the corruption I am targeting. Thus, in my view, it is not enough to say that “Exxon funded this research.” In my view, Exxon should not be directly funding an academic to do research benefiting Exxon in a policy dispute.

(There is a difficult line here that turns upon practice. When I was at Chicago, professors received summer research grants. Those were awarded by the Dean. To make the funders happy, the professor would write “this research was supported by a grant by XXX.” But never was the money given in light of the work, and most of the time, it wasn’t till after you had finished something that you discovered who had “funded” the work. I don’t mean to be targeting this sort of behavior at all. Again, the funding the professor received was independent of the grant by XXX.)

What the NC principle is not

The NC principle is about money. It is not about any other influence. Thus, if you’re nice to me, no doubt, I’ll be nice to you. If you’re respectful, I’ll be respectful back. If you flatter me, I doubt I could resist flattering you in return. If you push causes I believe in, I will likely push your work as well. These forms of influence are not within the scope of the NC principle — not because they are not sometimes troubling, but because none of them involve money. I mean the NC principle only to be about removing the influence of money from the work of a professional. I don’t think there’s any need to adopt a rule to remove these other influences.

Why is money different from flattery, or being a liberal? Good question. Lots of obvious reasons. (For example, think about how hard these other “corruption principles” would be to implement: “I can’t support X because he supports the Democratic party, as I do.” “I can’t testify in favor of Y because its President said something nice about me.” Talk about perverse incentives…)

Someday I hope time will give me the opportunity to say more about why in depth. But for now, I mean only to specify the scope of my principle: It is a principle about isolating one form of influence from the work that I (and I hope my colleagues) do. We (in legal academics, and imho) get paid enough not to have to worry about selling testimony.

Thus, one friend wrote me with disappointment about something I wrote that could be viewed as a favor to someone else. So long as money is not involved, I’m all for this kind of favor. We should be doing favors for people we agree with all the time. Especially people on our side of the debate: we need to become at least as good as the other side in cultivating a community of support.

So what does all this promise?

If you believe I am following my principle, then you can still believe I am biased because I’m a liberal, or wrong because I’m an idiot, or overly attentive because I’m easily flattered, or under-attentive because I punish people who behave badly. All that the NC principle promises is that I am not saying what I am saying because of money.

As applied

I have been living these principles for many years. So my purpose here is not to announce any new policy. You can agree or disagree with the principles. You can believe them too strict, or not strict enough. They are significantly stricter than anything within the academy just now. No doubt, many may believe they are way too strict.

But whether you believe them too strict, or not strict enough, I would encourage you to engage them. Consistent with my NC principle, I will reward kindness and insight with at least kindness. I will ignore people whose argument style stopped developing in high school. But because this is an issue I very much want to continue to work on, the only thing for sure is I won’t accept money to consult around it. (And of course, there are millions throwing hundreds of millions at me to do this, so this is a REAL sacrifice.)

Finally, and again, I don’t offer this as a tool to condemn. I offer it because I believe this is a conversation we all should have.