John,

As you know, my blog is in hibernation. Would you mind posting the following response to Andy Orlowski’s latest for the record?

I hadn’t thought any response would be necessary, but the ordinarily sensible (even if I disagree with its politics) Capitol Confidential seems to have been misled by Orlowski’s piece. Perhaps there are others. So, …

FOR THE RECORD, II.

A reader of Andrew Orlowski’s article published at The Register might be forgiven for taking from that piece the following scandalous story:

That the Berkman Center and a “for profit” entity on whose board I sit, iCommons, “registered in London,” has taken a large amount of money from a criminal organization — gamblers, or at least, people who set up an online poker site; that with those resources, Berkman tempted me to Harvard (as Orlowski puts it, “half of Berkman’s first-year budget of $5.4m went on procuring and supporting Lessig”). Berkman then used that money to help start Creative Commons. And that while we can’t really know what other influence these illegal gifts have procured, the suggestion is they certainly must have done something. It has at least driven Lessig to serve on the board of an entity that promotes poker — the GPSTS. Beyond that, we can’t say, but there must be more. Why else would the money have been given? “Perhaps it’s naive,” as Orlowski sonorously intoned, “to expect academics to uphold the values they preach.” So where else then is Lessig acting against the values he preaches?

Something close to this reading was what Capitol Confidential got from Orlowski’s piece. Here’s CC’s account:

As described by Andrew Orlowski at The Register recently, Professor Lessig (a professor of ethics, no less!) seems to have made a killing advocating on behalf of the gambling industry. Orlowski’s remarkably detailed reporting shows how Lessig’s for-profit iCommons attracted more than a million dollars in contributions from “newly-formed and secretive off-shore trusts” about three years ago, shortly after a new U.S. law took effect that curtailed online gambling. As for current funders of Lessig’s group, that’s anyone’s guess since Lessig’s London-based nonprofit Creative Commons does not disclose a list of its donors.

So for the record:

First, the Berkman Center has never taken any money from either of the two entities Orlowski identified. Zero.

Second, even if it had, there is no chance that money could have been used to recruit me to the Berkman Center. I came to the Berkman Center in 1997 — long before DeLeon and Dikshit made their money. I returned to Harvard last year, but to the Edmond J. Safra Foundation Center for Ethics, not to the Berkman Center.

Third, even if the money had been given to recruit me retrospectively (the way extending copyrights is said to promote creativity) and even if it had come from the allegedly tainted sources, Berkman did not “procure and support” me by spending $2.7m. Berkman used that money to fund an endowed chair — the Berkman Professorship — a chair which I held for a year or so while at Harvard, a chair which Zittrain held after that till he went to Oxford, and a chair that Yochai Benkler now holds. An endowed chair in law schools simply refers to the bucket from which a salary is paid. My salary (then and now) is obviously an order of magnitude lower than $2.7m, and was not affected in the slightest by my holding that chair.

Fourth, Berkman did not fund the launch of Creative Commons. Some of its founders were associated with Berkman when CC launched, and an initial meeting was held at Berkman. But that was the only “help” CC received from Berkman.

Fifth, Creative Commons certainly does publish the list of its contributors.

Sixth, I am not currently, nor have I ever been a “board member” of GPSTS. I don’t even know whether GPSTS has board members, but the website does list me as an “adviser.” I am an unpaid adviser to the founder of that entity, Charlie Nesson, in this and in any other area that he would like advice on. I believe the total amount of “advice” I have offered Charlie about GPSTS is that it find a better name.

Seventh, and most critically, iCommons.org is not a “for profit” entity. It is a not-for-profit entity. And it is not simply “registered in London.” It is a British Charity. Its first Chairman was Japanese. Its second Chairman was Brazilian. Its first Executive Director was British. Its second was South African. The majority of the board (I believe, but have not checked) has always been non-American. It is not subject to the jurisdiction of US law, except to the extent that it engages in activities here in the US. Since being launched as a UK charity, iCommons has never held any event in the United States.

I say all that to throw into relief the central confusion at the core of Orlowski’s essay. The nub of his charge against me is that I should have engineered the return of contributions to the iCommons charity because one of the two entities that contributed to it has pled guilty to violating US law.

Ok, but remember: iCommons is a UK entity. Whether or not Dikshit violated US law, neither he nor the founders of IETSI have been charged with violating UK law. I know Orlowski has US envy, but I should think THE REGISTER would recognize that the UK is neither a state nor a colony of the United States. And so why an alleged violation of US law should obligate a UK charity to return a charitable contribution is completely beyond me. If BP had advertised on The Register’s site, would The Register be obligated to return the advertising fee?

The most troubling bit of Orlowski’s piece, however, was the part he didn’t include. He ends his piece with the sanctimonious “[p]erhaps it’s naive to expect academics to uphold the values they preach.”

One might expect then that if he was charging me with not upholding the values I preach, he would at least mention what those values are. In my email to him, I had referred him to my “disclosure which states my “values.” Orlowski omitted that link in his essay. As that disclosure makes clear, my “values” are that I will not “promote as policy” positions for people who pay me, or who give a significant amount to a non-profit for which I have fundraising obligations.

Have I lived up to those values?

First, neither IETSI nor Dikshit ever paid me anything. Zero.

But second, the gift to iCommons plainly would trigger the obligation that I not “promote as policy a position” in the commercial interests of IETSI or Dikshit. That’s because I had a fundraising obligation to iCommons, and IETSI and Dikshit helped relieve that obligation through their gifts.

Orlowski nonetheless suggests that I violated this policy. But as I advised him by email (another bit of my email that he omitted from his essay), I had explicitly told the founders of IETSI and Mr. Dikshit before they gave their gifts that their funding iCommons would mean that I would not become involved in any policy debate that would advance their commercial interests. And indeed, I have not. I have never testified publicly, or promoted privately, any change in policy with respect to online gambling or poker. Instead, my behavior with respect to both of these contributors is precisely consistent with “the values [I] preach.”

Orlowski knew this all this, yet he wrote an essay that states precisely the opposite.

I don’t know what explains his fabrication. It may simply be the product of an extraordinarily sloppy mind. But the pattern here may suggest something more.

This piece is just the latest in a series of sloppiness or slander by Orlowski. The first was published almost a decade ago. In that piece, Orlowski apparently fabricated a quote he had attributed to my assistant. When she came to me in tears, I asked him to correct it. He refused, but invited me to dinner instead. I told him I was not interested in dinner with him; I simply wanted him to correct his error. He didn’t. Three years ago, he reported on a speech I gave at CISAC. That piece too was filled with apparently fabricated quotes, attributed to me. When I posted a blog entry that included snippets from a recording of the speech, demonstrating the fabrications, The Register cleaned up the quotes, but defended the piece by claiming — you can’t make this up — that Orlowski had invited me to dinner the night before the talk.

The good news about this latest is that at least this slander came with no invitation to dinner. For that I am grateful.

(In case there’s any confusion: The foregoing post was written by Lawrence Lessig. -JP)