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.

  • Michael Leuchtenburg

    If a company is providing a service which I believe to be useful and innovative, it would be unsurprising for me (given more money to invest that my graduate student stipend provides) to both invest in the company and to recommend to others that it be used. Both of these actions would be done because I believe that what they are doing is useful, with the investment having the additional belief “companies that do useful things are successful” also used in justification.

    I don’t think this would be a corrupt thing to do. I might feel compelled to disclose my investment, however small, particularly if pushing the company’s service to a large group. I don’t think that would be a corrupt course of action.

  • lessig

    Neither do I. I am not focusing upon one-offs (and if the story weren’t a one-off — if, e.g., you were a stockbroker writing recommendations, then there would be a big problem if you didn’t disclose). I’m focusing on an economy of influence that develops around certain professionals. It is that economy that I think should change.

  • Adam Hodgkin

    But isnt Google’s contribution to Stanford, which I understood was earmarked for your unit, something that should figure prominently in the disclosure? I am sure that you can handle the conflicts of interest which will surely arise, but there is potential there for awkward considerations.

    Google’s contracts with universities merit legal critique — see Brantley’s blog
    http://blogs.lib.berkeley.edu/shimenawa.php/2007/06/13/monetizing_libraries

  • three blind mice

    I’m focusing on an economy of influence that develops around certain professionals. It is that economy that I think should change.

    is that a shark you are jumping, professor?

    are you kidding? what sort of dialogue will result by excluding any point of view? your statement of principle seems to us to be nothing more than a half-twist on the politics of personal destruction: a politics of personal purity.

    it is also unbecomingly condescending. one’s views do not become more or less valuable simply because one is paid to express them. you are no more right about these matters simply because you adhere to a statement of principle!

    in this sandbox, the focus should not be on race/creed/color of certain professionals, but rather on what everyone has to say.

    *the above comment is paid for by the committee to feed and house three blind mice.*

  • rodander

    I agree with TBM.

    It is entirely consistent for one who favors a particular philosophy, or business idea/plan, to actually work for an entity who follows that philosophy or business concept. For money.

    I am a patent attorney. I think the patent system is a tremendous engine for innovation and investment in innovation, and that our economy and society is better for it. I am not afraid to say that out loud. And I work for clients who profit from the patent system (if I do my job well), and they pay me for it. I work in a field that I believe in. And being paid for that work does not corrupt me. I still sincerely believe in the concept, and its value.

    To call this arrangement “corruption” is condescending and insulting. It presumes that the opinions of anyone who is paid for work that is consistent with their underlying opinions is somehow insincere about those opinions and beliefs. It presumes that we are all self-serving first, so much so that we cannot be believed or that we have no integrity.

    Imagine this: A Catholic priest is paid a salary (meager as it is), from an institution whose purpose is to spread and deepen faith in its tenets. Is that priest “corrupt” when he gives the Sunday homily? Or when he counsels his parishioners, or writes a pastoral letter? According to Lessig, yes.

    And, yes, I fully realize that Lessig’s use of “corrupt” is not necessarily to mean “corrupt in its crudest sense”. But words have meaning, and certainly “corrupt” in its less-crude sense means at least that statements made by such a “corrupt” person are presumed to be self-serving and are not to be believed.

  • scorduan

    I think TBM and rodander miss the direction, here. This is not about the point of view expressed. All points of view are still valid and acceptable. This is about maintaining as objective a decision making process as possible before publicly espousing an authoritative opinion. This is a small piece what I call “Intellectual Self-Honesty.” That is, recognizing, acknowledging, and minimizing ones biases in an rational debate. I think it’s reasonable to state that humans go through an intense cognitive dissonance process when dealing with beliefs and values that are against their self interest. Put another way, rodander, if someone had a completely cogent, logical, slam-dunk argument for the total abolition of patents, it would be reasonable to suspect that you would have difficulty with the argument, simply because it would demolish everything you’ve built your life on. Certainly you would have a difficult time espousing such an argument. So the principal involved is to acknowledge your personal bias of monetary self-interest, distrust your own judgment in the debate, and bow out gracefully.

    For your religious example, I am reminded of the Apostle Paul. Instead of being paid for his missionary and preaching work, he chose to make his money by tent-making in the towns he traveled to. He did this, he says, in order to have nothing get in the way of his message.

    The good Professor is merely espousing the same principle. Avoid situations where monetary self-interest could influence your judgment, and get in the way of your message.

  • rodander

    Thanks for the comment, scourdan. But I don’t buy it.

    Are you saying that, according to this “non-corruption” principle, that I ought not publicly express an opinion against the argument for the total abolition of patents, because I work (for money) in the field? This seems to be the sense of your “bow out gracefully” suggestion.

    This is ludicrous. Most people work, or at least continue to work, in a field that they believe in. I believe in the patent system, as I indicated above, and I have devoted 20+ years in that field. Working for money. I have backed up my viewpoint with my career. And now I am somehow “corrupt” if I publicly express opinions in that regard? Or, at best, presumed to be corrupt?

    This will eliminate expertise from the public square of ideas and debate. Those who have backed up their viewpoints with their livelihoods are to be disbelieved. Those with the most experience in an area, and who know it the best, are precluded from the debate.

    This will leave only amateurs, and those seeking to exploit the amateurs, debating the small and large issues of the day. I guess this is a good thing only if you don’t care about the results (or if you are one of the exploiters).

    Actually, I am starting to see through this whole “non-corruption” concept. Artists who have actually created original works, and who are fighting against those who want to make derivatives will be disqualified from the policy debate — after all, they have a money interest in the outcome. Companies who have invested in Internet infrastructure and new network services, and who want to obtain return on that investment, will be disqualified from the so-called “net neutrality” debate — after all, they have a money interest in the outcome.

    This “non-corruption” principle makes winning policy debates easier, doesn’t it? Those with the most knowledge, and most at stake, don’t get to play.

  • Darren Cambridge

    Lessig writes, “We (in legal academics, and imho) get paid enough not to have to worry about selling testimony.” This, I’m sure, is true. It is also terrific that he doesn’t have to worry about raising money for his center. However, there’s an implication here, perhaps not intended but also not disavowed, that all professionals should make a similar pledge. That’s simply impossible now and any time in the foreseeable future for most of us not in the position of incredible privilege from which Lessig does his work (of which I’m a great fan). I’m a professor in interdisciplinary studies, early in my career, at a middle tier state institution. My salary is probably 20-25% of what Stanford pays Lessig. I need the money I get from consulting to supplement that.

    More crucially, however, no one takes care of fundraising for me. If I don’t do it, I don’t get to do the projects I care about that can make an impact. My consulting work, too, is one of the activities that I feel makes the most immediate impact on practice in my field. To avoid “corruption” my options seem limited to 1) living like a monk until I’m as famous and well-paid as Lessig (i.e., never), 2) only doing consulting about things I don’t care about, or, indeed, oppose (perhaps I could grade standardized tests for ETS), or 3) stop doing paid work about things I care about so that I can write about them for audiences I’m unlikely to be able to reach without the resources the paid work would provide. I don’t like any of these.

    I’m sure this isn’t news. I would like to see, however, some sense of how this might apply to those of us who would need to either make much greater personal sacrifices or would require significant institutional change to be able to avoid corruption as defined here.

  • scorduan

    rodander, thanks for your reply, as well.

    I understand your frustration, and your concern about expertise. Let me begin by stating that your concern is incredibly valid. Care must be taken not to eliminate expertise from the question. However, I think that looking at the concept of “promoting a position” will help clarify where expertise may or may not be lost.

    The example I used above was very broad. I said that as a patent lawyer, you would exempt yourself from discussion of whether or not patent law should be abolished. You would acknowledge that you have too much at stake personally to take place objectively in the discourse and “gracefully bow out.”

    However, it’s entirely possible that, as a patent lawyer, you have never “been paid to advise about, consult upon, or write about” the length of time a patent stays viable. Put more simply, just because you’re a patent lawyer doesn’t means you’ve been doing any paid lobbying regarding patent lifetimes. So, if a great debate came out about this, you would have significant expertise in the area, but would not have a profit motive to make objectivity more difficult. You would then feel free to lend your expertise to the debate.

    Keep in mind, it is not paid experts in a field that are “paid to advise about, consult upon, or write about” their field. As a software engineer I have never “been paid to advise about, consult upon, or write about” software development. I have been paid to develop software. It is paid activists and lobbyists who are “paid to advise about, consult upon, or write about” things. These are the ones whose judgment has two masters to serve.

    A different way of putting the principle would be:

    In an intellectual debate, anyone who has more than the truth at stake on the outcome has untrustworthy judgment and would do well to remove themselves from the debate.

    Disclosure principles would state:

    In an intellectual debate, anyone who has more than the truth at stake on the outcome should disclose their additional stakes.

    But, I agree with Lessig, this doesn’t go quite far enough. Even if this person feels they are being completely honest in their assessments, it’s possible they are not even being honest with themselves. Their judgment cannot be trusted and they should remove their testimony from the debate.

  • rodander

    Fair enough, scourdan. We’ll agree to disagree, I think.

    Point of reference: Lawyers (myself included) are in fact paid to “advise about” and “consult upon” questions and issues in our field. That’s what we do. And sometimes we even “write about” such questions and issues (even I might, maybe when I am old and have been “corrupted” by enough money).

    I do not have a problem with someone choosing not to comment publicly because of their own monetary interest. That’s up to them. But I sincerely question the wisdom of forcibly applying this “non-corruption” principle to others.

  • Valerie Dunbar Jones

    As always, Professor, I am confused, but may still produce a correct-seeming answer. Are we after the “corn-pone opinions” or the corn pone itself?