June 4, 2007  ·  Lessig

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, FreePress, PublicKnowledge, 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 recommend as policy a position that I have been paid, either directly or indirectly, to recommend.

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 recommend 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 “recommend” means in any public forum — so an op-ed, testimony, or a lecture.

that I have been paid directly“: This is the easy part of the principle. “Directly” means that I’ve received cash or other such compensation, or that I receive research support, or funding that I otherwise wouldn’t have been entitled to.

or indirectly“: This is a harder line to draw in general. The boundaries for me, however, seem pretty clear. In my view, I would be “indirectly” benefited if an institution I was responsible for got a significant benefit from an easily identified interest.

So, 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.

But isn’t disclosure 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 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.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    A an impertinent question remains though.

    Would you permit yourself to occupy a position in which your expert knowledge of copyright law could find a student who’d indulged in file-sharing guilty of copyright infringement?

    In other words, which would you put first? Upholding the law of copyright or abstaining, defining cultural freedom as a conflict of interest?

  • redpop

    So you will shill, as long as your not paid in cash? What kinds of gifts or privileges do you accept? You do know that much ‘bribery’ today is done without money right? Free food, gifts, tickets, positions of power, special privileges… etc. are all bribes.

    Also, has your position about bzzt! agents changed?

  • lessig

    Cosbie, not really a NC principle question. Redpop — yes, subject to a de minimus understanding, I mean any compensation. And no changes.

  • anon

    Is the list of non-profits on whose boards you serve exhaustive or illustrative?

  • http://sethf.com/ Seth Finkelstein

    Sign. That’s not so much a non-disclosure statement, as a mission statement.

    Disclosure-writers, please don’t spend a lot of time saying how moral you are. Nobody is ever going to write (well, seriously) “I’m a whore. I’m for sale to the highest bidder. My views are determined by whoever is paying me, and how much. If you want an argument that black is white, just send me some silver. Integrity doesn’t pay the bills”.

    Lines like this are useful, because they are statements about objective facts:

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

    Indirect problems are a more complicated issue, I’ll keep this comment short.

  • http://sab39.netreach.com/ Stuart Ballard

    Doesn’t this in itself open you up to some strange kinds of backwards incentives?

    For example, suppose someone sufficiently unscrupulous felt that some position you advocate was materially harmful to their interests, and furthermore that you individually were being successful enough in advocating it that they were actually seeing losses due to it.

    Couldn’t they set up a dummy organization specifically targeted at advocating in *favor* of that same position, fund it discreetly, perhaps even hire people who actually do agree with you, and arrange for that dummy organization to make a substantial grant to CC?

    And if they did that, wouldn’t you then be obligated to remain silent about that topic, by these principles?

  • redpop

    I guess I have a problem with the “I’ll scratch your back if you scratch mine”:

    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 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.

    Modern day bribes are not overt. Whether nepotism is ‘just being nice’ to your friends or not is a matter of spin. People can and do shill for subtle rewards — favoritism or unspoken privileges for example. Nobody takes bribes anymore, only ‘favors’ among ‘friends’.

    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 it was worth pushing you wouldn’t need quid pro quo). This is similar to the objections people had to Bzzt! — you are creating, and taking advantage of, incentives to shill, to have your opinion on a topic influenced by these incentives.

  • Jardinero1

    A scion of integrity. What a relief. Not since Jesus Christ or Moses have I met such a man.

    I shill insurance and investments for a living. People ask me why I do it. I tell them “for the money, and because I get off on shilling.” They ask me if I believe in the products I sell. I say to them, “that’s not really important, the important question is do you believe in the products I am selling?”

    Which brings me to my point Professor: Who cares why you or anyone else shills? You are still shilling. When I meet a shiller, I listen and I if like I buy. But if I don’t, I slam the door on his face. I don’t care why he shills; it’s neither here nor there. I judge each case on its merits.

  • http://dancollier.org Dan Collier

    I thought this is an excellent statement. It raises many important points, like the unconscious influence of “corruption” on what we think and say. This is a good example for many professionals to consider, even if many couldn’t live up to it.

    But I have one question on a point I believe you overlooked. How do you handle retirement investments? One would assume you own broad based mutual funds that invest in every sector of the economy. If so, statements about Google Books, for example, may directly impact Google share prices and indirectly effect your investments.

    To me, one-time disclosure of such interests seems necessary and sufficient.

  • pb

    What a tedious piece of waffle. Intellectual masturbation at its most self-indulgent.

    eg, “Why is money different from flattery, or being a liberal? Good question”

    Bzzzt – wrong question! It would have been a lot shorter, and considerably more honest, if Lessig simply said -

    “Thanks for the $2m donation to my law department, Google!”

  • three blind mice

    A scion of integrity. What a relief. Not since Jesus Christ or Moses have I met such a man.

    that is not cool Jardinero1. play nice.

    Which brings me to my point Professor: Who cares why you or anyone else shills? You are still shilling. When I meet a shiller, I listen and I if like I buy. But if I don�t, I slam the door on his face. I don�t care why he shills; it�s neither here nor there. I judge each case on its merits.

    that ain’t being a shill. when colin powel goes in front of the UN and reads a load of crap he knows to be crap because that is his job – that is being a shill.

    but even then, why should it matter? ideas are what should matter not who or what delivers them, or for what reason. shilling, selling, paid spokesman, bootlicking secretary of state… what should it matter?

    indeed, if the cause be just, why should the professor or anyone need anything like an NC policy? does it make you more right about copyright because no one is paying you to say it? or less right if someone is? this is not only absurd; it is demeaning.

    if you must analyze the source of an argument to find its merits, then you are not capable of listening. to find fault in the argument of those who are “corrupted” simply because they are “corrupted” is as stupid as finding truth in the argument of those who are “not corrupted” simply because they are “not corrupted”.

  • duddits

    The disclosure is interesting in a word soup kind of way. So you get paid to write or speak your mind on matters that you believe in. If for instance, an article is written for a magazine and the magazine restricts it to paid-in-full subscribers http://farm3.static.flickr.com/2344/2048728074_2c70b800e2.jpg What?

    Seems to be a little restrictive to research. The magazine owns the content therefore you cannot cite it or post an abstract in a blog. Where does the right to information begin? Is the magazine a gatekeeper or a jailer? This is not a rant on paid subscriptions, it is a disclosure question. It seems to be a contradiction of your NC policy.

    Pardon the confusion on my part. I am just trying to balance “free as in beer”, with “free as in not compensated”. Or, maybe I got all of this wrong.