Author Archives: Phillips Academy

Shepard Fairey and AP Settle Copyright Suit

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The artist Shepard Fairey and the Associated Press announced today that they have reached a settlement in their dispute over copyright issues related to the Obama “Hope” poster created during the 2008 presidential campaign cycle.  The AP has also issued its own press release about the settlement.

(Disclosure: Along with my HLS colleague, Prof. Terry Fisher, and an extraordinarily able team led by Geoffrey Stewart and Meir Feder from the law firm Jones Day, I was co-counsel for Shepard Fairey.  See related story here.  Prof. Fisher and I served as pro bono counsel in our personal capacities; neither the Harvard Law School nor the Berkman Center for Internet & Society, with which we are both affiliated, were institutionally involved in any way.)

DDoS Report, in the Wake of Wikileaks, Cablegate, and Anonymous

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The Wikileaks/Cablegate story has long-term implications for global society on very many levels.  (See JZ’s excellent FAQ on Wikileaks, co-developed with Molly Sauter.)  One is our shared understanding of the Distributed Denial of Service (DDoS) attack phenomenon.  The incidence of DDoS has been growing in recent years.  It links up to important threads to emerge from our OpenNet Initiative work in studying the ways in which states and others exert measures of control on the open Internet.  (Consider, for instance, the reports from ONI on Belarus and Kyrgyz election monintoring, which broke new ground on DDoS a few years ago, led primarily by our ONI partners Rafal Rohozinski, Ron Deibert, and their respective teams).

We are issuing a new report on DDoS today, which we hope will help to put some of these issues into perspective.  For an excellent blog entry on it, please see my co-author Ethan Zuckerman’s post.

After initial publication of State Department cables, Wikileaks reported that their web site became subject to a series of DDoS attacks that threatened to bring it down.  These attacks are simple in concept: multiple computers from around the world request access to the target website in sufficient numbers to make the site “crash.”  It turns out to be hard for most systems administrators to defend against such an attack.  And it turns out to be relatively easy to launch such an attack.  Computers that have been compromised, through the spread of computer viruses, are available for “rent” in order to launch such attacks. In a study that we are releasing this morning, we found instances where the “rent” of these machines is suggested by the round numbers of attacking machines and the precise durations of the attacks.

In the face of these attacks, Wikileaks decided to move its web site to safer ground.  Large-scale web hosts, particularly “cloud computing” service providers, can resist DDoS attacks.  Wikileaks did what one might reasonably suggest to, say, a small human rights organization in an authoritarian regime, where they fear attack from the state or others.  Wikileaks moved to the Amazon.com cloud.  Shortly thereafter, apparently in the face of pressure, Amazon decided to stop serving Wikileaks’ web site, and cut them off.  Wikileaks found a “James Bond-style” bunker in Sweden which agreed to host them — presumably despite pressure to take the site down.

The DDoS story took another major turn in the Wikileaks narrative when Anonymous launched a series of attacks on sites perceived to have been unhelpful to Wikileaks in the post-Cablegate aftermath.  These DDoS attacks raised the specter of cyberwarfare, much discussed in policy circles but all of a sudden on the front page of major newspapers.  Depending on political viewpoint and other factors, people I’ve talked to seemed to see these retribution DDoS attacks as different in their implications from the initial DDoS attacks on Wikileaks itself.

There have been relatively few studies of DDoS as an empirical or a policy matter.  We are releasing a report today, (which I’ve co-authored with Hal Roberts, Ethan Zuckerman, Jillian York, and Ryan McGrady), that describes DDoS and makes a series of recommendations in light of what we’ve found.  It’s funded by a generous grant from OSI.  Regardless of whether you consider DDoS to be criminal behavior, the next wave in cyberwarfare, an acceptable form of protest, or all of the above, we hope you’ll read and give feedback on the report.

NONOBJECT (or, I bought my first book in the form of an iPad app)

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I bought and downloaded my first book-as-iPad-app yesterday: NONOBJECT, by Branko Lukic and Barry M. Katz (MIT Press, 2010).  It cost $19.99 and one finds it in the Apps Store, not in the book store.  It took quite a while to download over my home connection.  It was worth it, both in terms of cost and time waiting for the code to run on the iPad.

I chose to read NONOBJECT for its form, not so much its substance.  I don’t know much about industrial design or the theory related to it, though I learned a bit along the way.  (The premise of NONOBJECT is a design principle that focuses not so much on the product or the designer but on the space between them that is altered through design.)  I was interested in the experience of reading that the authors would offer up.  It’s fun and thought-provoking.  The experience is partially but not entirely linear.  One reads a bit of text (I doubt there’s more than 5,000 words in total in the book), which is all cleverly written, and then experiences a series of ideas of “nonobjective” design.  The photos are beautiful, as one might expect from a high-end book on design, and are frequently interactive.  There are twirling objects, moving pictures, interactive bits.  I give a lot of credit to Lukic, Katz, MIT Press, and the programmers who developed the book into an iPad app.  It’s a lovely job; I felt my time was well-spent in experiencing it.

I’ve been thinking a lot about books-as-iPad-apps.  I’m writing one myself, on intellectual property strategy, also to be published with MIT Press.  The idea is to think of the book as an experience that takes advantage of the interactivity and design possibilities of the iPad interface (which I happen to enjoy).  I’ve written it as a book that one can read in its ordinary, printed, form, though it will be a short book — probably 30,000 words.  It will also have expanded case studies if one wants to go deeper on certain topics.  And I’ve been videotaping interviews with colleagues about intellectual property strategy, with help from my friend June Casey in the HLS Library and a team of students.  The idea is to put together an iPad app version of this book that can be downloaded, much like NONOBJECT.  I’m glad that Lukic and Katz’s book has come out in this version.  I’ve learned a lot from experiencing it while working on my own.

Noah Feldman, Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices

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I have had the great pleasure this evening of introducing Prof. Noah Feldman on the occasion of his talk on his new book, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices (Twelve, 2010).  Noah’s interlocutor: our great friend Christopher Lydon, former Berkman Center fellow and journalist who has led the way in print (“on the bus” with the NYT in 1972); as Boston’s leading serious TV presence (on WGBH); the voice of The Connection (on NPR and WBUR, my all-time favorite radio program); and now a pioneer of the podcasting medium (with 500,000 downloads a month of Radio Open Source, based at the Watson Center at Brown).

Noah is the Bemis Professor of Law at Harvard Law School.  He is already one of the undisputed shining stars of our generation of scholars — in law or any field.  His work is known for an almost impossible breadth and depth.  Noah’s scholarship has been influential across many domains, from international affairs, domestic politics in America, and Constitutional Law.  He’s also a popular and effective teacher, both for our students here at Harvard Law School and of the public at large, through his writing in the New York Times Magazine, the Wall Street Journal and elsewhere.  As I read the opening passages of Scorpions, I was struck by the sense that, seventy-five years from now, our great-grand-children may well read a story as compelling as this one with Noah as a subject rather than its author.

Scorpions is an incredibly fun read — hard to put down.  (Not surprisingly, it seems already to be jumping off the shelves, if its current Amazon rank is any indication.)  He starts with Franklin Delano Roosevelt’s rise to power and his assembly of an extraordinary group of four, soon-to-be-famous Supreme Court justices: Felix Frankfurter, Hugo Black, Robert Jackson, and William O. Douglas.  These characters turn out, each, to be as fascinating as individuals as they were influential as jurists.  The Supreme Court as an institution, and the way that we think about the Constitution, were changed at their hands.  The narrative that he recounts bears directly on the processes of nominating and confirming Supreme Court nominees and on the ways that the Court does (and should) work.  In his book talk, Noah emphasized a key theme that is implied throughout the book: how personality shapes the way that the law is made.  There is great insight in this book as to fights over the First, Fourth, and Fourteenth Amendment; Brown v. Board of Education; the law in wartime; the rule of law itself; and much more.

Setting aside the obvious interest that this book will hold for lawyers, what is most compelling about the book is the way that Noah intertwines so many weighty themes together into a single story about these four men and their President.  Noah weaves together a whole host of major topics, beyond the law itself, of the twentieth century: war, international relations, domestic politics, governance, cultural struggles, religion, social class, crime, the terrorism of the Italian anarchists, ambition and rivalry.

As Noah put it during the book talk — prompted by Christopher Lydon’s incisive questions — Roosevelt’s Presidency was “a completely different world than the one we live in today.”  He writes in a way that makes these stories accessible from a presentist perspective.  (As a law professor, “I’m not the sort of historian who says he can’t address presentist concerns,” Noah says.)  Another great quote from Noah, reflecting on the hope that we’d confirm some “flawed people” to future Supreme Courts: “I’d hope to be a poster-child for flawed people.”  I learned a great deal from the time well-spent in reading Noah’s important new book.

(The video of this informative conversation between Noah and Chris, which was recorded, should eventually be published online by HLS on our YouTube channel, I’d imagine.  And for a different, not-so-positive, take on the book, Noah pointed verbally to the WSJ’s recent review.)

Henry N. Ess III Chair Lecture Notes

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I’m preparing for a lecture tonight at Harvard Law School.  Here’s the abstract:

The Path of Legal Information

November 9, 2010

I propose a path toward a new legal information environment that is predominantly digital in nature.  This new era grows out of a long history of growth and change in the publishing of legal information over more than nine hundred years years, from the early manuscripts at the roots of English common law in the reign of the Angevin King Henry II; through the early printed treatises of Littleton and Coke in the fifteenth, sixteenth, and seventeenth centuries, (including those in the extraordinary collection of Henry N. Ess III); to the systemic improvements introduced by Blackstone in the late eighteenth century; to the modern period, ushered in by Langdell and West at the end of the nineteenth century.  Now, we are embarking upon an equally ambitious venture to remake the legal information environment for the twenty-first century, in the digital era.

We should learn from advances in cloud computing, the digital naming systems, and youth media practices, as well as classical modes of librarianship, as we envision – and, together, build – a new system for recording, indexing, writing about, and teaching what we mean by the law.  A new legal information environment, drawing comprehensively from contemporary technology, can improve access to justice by the traditionally disadvantaged, including persons with disabilities; enhance democracy; promote innovation and creativity in scholarship and teaching; and promote economic development.  This new legal information architecture must be grounded in a reconceptualization of the public sector’s role and draw in private parties, such as Google, Amazon, Westlaw, and LexisNexis, as key intermediaries to legal information.

This new information environment will have unintended – and sometimes negative – consequences, too.  This trajectory toward openness is likely to change the way that both professionals and the public view the law and the process of lawmaking.  Hierarchies between those with specialized knowledge and power and those without will continue its erosion.  Lawyers will have to rely upon an increasingly broad range of skills, rather than serving as gatekeepers to information, to command high wages, just as new gatekeepers emerge to play increasingly important roles in the legal process.  The widespread availability of well-indexed digital copies of legal work-products will also affect the ways in which lawmakers of all types think and speak in ways that are hard to anticipate.  One indirect effect of these changes, for instance, may be a greater receptivity on the part of lawmakers to calls for substantive information privacy rules for individuals in a digital age.

An effective new system will not emerge on its own; the digital environment, like the physical, is a built environment.  As lawyers, teachers, researchers, and librarians, we share an interest in the way in which legal information is created, stored, accessed, manipulated, and preserved over the long term.  We will have to work together to overcome several stumbling blocks, such as state-level assertions of copyright.  As collaborators, we could design and develop it together over the next decade or so.  The net result — if we get it right — will be improvements in the way we teach and learn about the law and how the system of justice functions.

A Citizens' Choice Framework for Net Neutrality

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I’ve just submitted a comment to the FCC with respect to a proposal for a compromise solution on network neutrality.  I’m very grateful to the many friends who provided constructive criticism during the drafting and refinement of the ideas.  Here’s the text:

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Mr. Chairman and Members of the Commission: Thank you for the opportunity to submit ideas regarding a path forward on the topic of Net Neutrality.  In this memo, I propose that the FCC should pursue a compromise solution on Net Neutrality that both preserves the open Internet and permits opportunity for reasonable product differentiation and network management on IP networks.

The central tenet of this plan would be to locate the choice to differentiate services with the consumer, not with the Internet Service Provider.  The overriding policy goal is to create incentives for increasing bandwidth infrastructure rather than monetizing or encouraging scarcity.  And the plan should prioritize Managed Services that support national purposes as set forth in the National Broadband Plan.

The Citizens’ Choice Framework would include the following elements:

1.  Enact Default Rules for Internet Access Service.

The FCC should establish rules for Internet access service that set the default network management regime as nondiscrimination.  Deviations from this core standard should be permitted for approved engineering purposes only, and may not be commercialized or sold.  Qualification as a “reasonable network management practice” must hinge on an engineering requirement that does not result in an incentive to maintain bandwidth scarcity.  This first step would ensure that the status quo of an innovation-friendly, open Internet platform endures.

2.  Establish a Technical Advisory Committee.

The FCC should formally establish its Technical Advisory Committee of engineers (exclusively) from all sides of this debate.  The FCC should establish rules for composition of the Committee to ensure that individuals from telecommunications companies, technology companies, and consumer advocacy organizations are all represented; participation by engineering academics should also be encouraged.  This Committee should serve to evaluate engineering issues that arise for consideration as reasonable network management.  This panel can establish best practices, in coordination with Internet engineering bodies, such as the IETF, over time.  This Committee will need the ability to audit the carriers’ systems in order to be effective.

This approach will avoid putting the FCC staff in the position of having to adjudicate every technical dispute – a task for which it is ill-suited at scale – and which will ensure that sound technical exceptions are permitted.  In cases where the Committee cannot reach a consensus, the FCC should establish a mechanism where the FCC staff evaluate the evidence, including statements by Committee members supporting or favoring the exception, to determine whether to permit the exception.

The United States government has experience in establishing such technical advisory committees, which should provide an effective blueprint for this engineering group.  The Food and Drug Administration, for instance, has established such an advisory group to make technical assessments in the public interest.  (For the sake of clarity, this Technical Advisory Committee should be the body authorized by statute, with appropriate procedural protections to constrain its activities appropriately, not a newly-created, ad hoc body.)

3. Enact Rules for Managed Services.

The FCC should establish rules to govern Managed Services.  These services would be a class of IP-based services that are not Internet access service (i.e., services that are not available to all end-points on the public Internet).  Prioritized carriage of Managed Services traffic (over basic Internet Access Service) is permissible under certain conditions.

The FCC should establish rules, based upon a series of principles set forth at the outset, that constrain the expansion of the Managed Services class to prevent it from swallowing the public Internet or functioning as a zone of pay-for-play, anticompetitive activity.  As a baseline outcome, Managed Services must not be permitted to violate the overall policy principle of infrastructure growth and should be limited, as a percentage matter, to a certain limited percentage of network traffic (taken as a weekly average or through a similar, periodic means of measurement).  Managed services should be marketed as separate from other types of consumer-facing services and not included in any bandwidth cap or as part of the overall upload/download capacity.   Managed service treatment should only be available if the service does not fall under some other classification.  Managed services as a class should operate on an open access basis.  If a carrier sells a managed service of a particular type, it must offer the sale of bandwidth to a competitor at reasonable rates and subject to reasonable terms and conditions.  These rules will be adjudicated on an ex ante, case-by-case basis.

All Managed Services should use a passive registration system at FCC to indicate their activation.   In the event of a challenge by a consumer or business, the Commission shall review the service as registered.  The FCC will presume eligibility for Managed Services treatment so long as the proposed service is credibly designed to serve one of the “national purposes” in the National Broadband Plan.  The FCC will presume against eligibility for Managed Services treatment that:  a) could be offered over the public Internet; b) show clear characteristics of anticompetitive motivation; c) draw down bandwidth otherwise allocated for Internet access service; and d) if not handled as a Managed Service, might otherwise result in discriminatory consumer harm.  These presumptions (in either direction) may be overcome with evidence that the service offers benefits in the public interest, promotes competition, and/or is consistent with the overall national policy framework. Managed Services to support the public safety infrastructure, for instance, would be an example of the type of prioritized carriage that might be permitted in such a regime.

For consumer-facing Managed Services, the key point is that the consumer alone is permitted to select the service(s) that will be prioritized.  The consumer, not the ISP, can trigger any commercial arrangement for a Managed Service separately from the purchase of the underlying Internet access service subscription.  The ISP and the content/service provider may not prioritize traffic for a Managed Service without affirmative consumer selection.

4. Ground All Rules in a Principle of Technological Neutrality.

The FCC’s rules across this entire framework must apply to all delivery systems of Internet access service and managed services. Certainly, the scope of “engineering purposes” and the reasonability of network management practices will vary from network to network.  Such variability, however, should not in any way preclude universal application of a single framework of rules.

5. Provide Adequate Transparency to Consumers and to the Commission.

The FCC’s rules should require ISPs to supply clear information to current subscribers and at point-of-sale on all prices and fees associated with Internet access service and managed services.  ISPs should also provide reasonably specific information about any network management practices in use to their subscribers and to the Commission, including network management associated with both Internet access service and managed services.  The FCC should also require ISPs to provide updated disclosures regularly, for example through a publicly available and readily accessible web site, when network management practices are updated.  The FCC and the Committee proposed in this memo should have access to adequate network data from carriers to make sound policy judgments consistent with these rules.

Important Notes:

·         Title 6 services are not implicated by this regime.

·         This approach would track, in part, the policy principle of abundance over scarcity, as codified by Canada in a 2009 CRTC decision.

·         The architecture of consumer driven prioritization for Managed Services may not be immediately feasible for cable modem systems and 3G wireless networks as presently architected, but the plan should be enacted with the goal and presumption of accomplishing technological neutrality over time.

Born Digital: The Video Version

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One of the ideas that Urs Gasser and I had from the start of the Born Digital book project was to find a way to co-produce the ideas behind the book.  The concept was to celebrate, in a graphic way, the creativity and ability of young people.  We worked closely with dozens of student interns on literature reviews, background research, focus groups and interviews, drafting and editing of parts of the book, and so forth.  We’ve been blessed by an extraordinary team of young collaborators.

One specific example of the co-production: a group of students have completed another version of our book, made exclusively by them with no editorial oversight from us, in the form of a series of videos.  Each of these videos are based on a chapter of the traditional form of Born Digital.  The upshot is that one can now “play” the book by watching a short video of each chapter.  The videos are short, roughly 3 to 5 minutes long, and they’re all freely available online.

The purpose of this project is in part to push the boundaries of what a “book” is in the digital age.  I love the traditional codex and all that’s followed on from the original idea.  But I think also that there’s room for new designs for long-form arguments that make a series of complex, interrelated points and which require sustained attention to understand.  I’m convinced that the traditional book will survive, but I think it’s also important that we experiment with new formats as well.

I know that Urs and I are hugely grateful to the many students — and fellows and collaborators throughout our research network, like danah boyd — who have contributed their smarts and their innovative ideas to our shared understanding of Youth and Media in a digital era.

We very much hope that you will try out the free, online video version of Born Digital!  And special thanks and all credit to the student video creators and Sandra Cortesi and other terrific Berkman staff who organized the crew.

Laptop and Filtering Policies for Classrooms

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I had the pleasure of teaching in the Research Symposium for Spanish and Latin American Academics, held at Harvard University this August.  As part of a three-hour session on learning with technologies, I assigned an exercise in which groups of teachers (mostly at the university level; a few teaching younger students) had to work together to come up with policies on laptops in the classroom. In honor of the school-year that is starting up, here are their respective proposals, live-blogged (I’m just presenting what they came up with, as faithfully as I can, and not endorsing any of these views in particular, just to be clear):

– Group 1: Laptops should always be permitted.  Elementary and high schools should have a policy where teachers control the content that students can see.  A firewall should be established to protect the information environment such that some content would be filtered out at some levels of learning.  In universities, the environment should be less controlled but still filtered for sexual content, games, violence, and other sensitive material.  A survey tool nationwide should be used to assess whether this approach is working for the students in support of their learning.  (The spokesperson declared that there was disagreement as to this policy in the group, but that they decided to present a consolidated front.)  Other group members reacted to this proposal with concerns about who will watch the watchers (i.e., who will keep an eye on the people who choose what to filter out of these school environments); how to deal with sexting; how well suited young kids are to use laptops appropriately; and so forth.

– Group 2: It should be the right of the professor to decide whether or not to allow laptops in class.  It depends a lot on the topic one teaches, the level of the students, the extent to which the campus is wired, and the penetration of laptops for students.  There was a debate within this group: what happens when some teachers say laptops should be banned across the board?  Then the dean and the faculty of a given school should be able to take a vote to ban laptops.

– Group 3: This group agreed that, for an undergraduate college, where there is wifi available across campus, it should be up to the teacher in each classroom to decide.  But there should be a student veto: if a single student objects, a teacher should consider whether to ban laptops to avoid the negative externalities of laptop use on other students.  Secondarily, teachers can expel students for using laptops in a disruptive way.  There should also be an informal users’ group which offers information to students and faculty about the costs and benefits of laptops in the classroom.  This group reported that they were animated by a trust in students’ ability to use technology in a responsible way and wish to emphasize education of students along the way.

– Group 4: This group said that it should be up to individual teachers whether to allow laptops or not.  It depends on a complex series of variables.  It’s too hard to have any other single policy that will work for all settings — in marketing and mathematics courses, the issues and pedagogies are very different from one another.  The school should underscore that it is important to consider the needs of students and how best to use technology in the classroom.

– Group 5: This group decided unanimously not to have a policy.  They decided instead that there should be 3 principles established: 1) freedom of thought: students should be free to do what they like with their minds; 2) freedom of speech and teaching: institutions should trust teachers to make good decisions about teaching, including laptop use; and, 3) the principle of commitment to a good learning environment: professors and students can agree on rules at the beginning of a semester.  The dynamics of the class are very important and should be the focus of the teacher, who should think about how much time is devoted to any given task or mode.

Guest Blog Post: Lawrence Lessig

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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)

Some Basic Facts about the Berkman Center

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A new group of (utterly wonderful) interns has arrived at the Berkman Center, asking lots of questions about what the place is about.  I met with a big group of them, working on a few projects I’m involved with, this afternoon.  There’s also a reporter who has been working on a story about the Center, who has asked a lot of basic questions about what we do and how we fund our work.  I thought I’d set out some basic facts about the Berkman Center here in a blog post, in case anyone’s interested.

The Berkman Center for Internet & Society was founded in the 1997-1998 academic year at Harvard Law School by Prof. Charles Nesson and co-founder Prof. Jonathan Zittrain.  Their vision was complemented by, and supported by, a generous gift from the Berkman family.  This gift provided both funding for a chair at Harvard Law School for a professor (which has been held by Lawrence Lessig, Jonathan Zittrain, and presently by Yochai Benkler) and for the seed funding for the Berkman Center for Internet & Society at Harvard Law School.  The Center had a few students back then, now-famous Internet scholar Wendy Seltzer and lawyer Alex Macgillivray.  Wendy refers often to the early days of the Berkman Center as “smart people in a hallway.”  It was not glamorous.  It was a hallway in Pound Hall at HLS where most of us students (I was one, in the late nineties as well) toiled at workstations on JZ’s and Charlie’s inventive projects.  In the early days, the Center’s budget was up to and occasionally a bit over $1 million per year.  It had a small professional staff and a deeply devoted, and growing, group of students engaged in it.  That was the era when I fell in love with the subject and the place.  It felt serious, important, and engaged in an exploding topic.

The Center has grown since then in many respects, but it retains much of its original flavor — much of its original start-up feel.  We are, twelve or thirteen years later, no longer in a hallway, but now in slightly larger digs, the second floor of a yellow, wood-frame house on the north edge of the HLS campus.  It’s about 2,300 square feet, with some offices housing four, five, or six people at a time.  During intern season, there are often a dozen or more students camped in the conference room and/or the kitchen.  We still feed the crew a lot of pizza and sandwiches: every Tuesday, for our lunch series, at a minimum, and often more frequently than that when we have other guests.  That’s part of the charm: students, staff, fellows, and faculty all come to the Center for the ideas, the camaraderie, the hard work, and occasionally the refreshments.  Myles Berkman, who has been our biggest supporter, described his vision for the Center as a “water-cooler” around which interested students and researchers might gather to work on the most important issues of our times.  We’ve taken that charge seriously.

The growth of the Center has changed a few things.  There are many more paid staff, which is terrific; our reach is increased as a result.  It was once a few staff; it is today more like 30.  The fellows program — in many respects the heart and soul of the institution — has grown from a few to as many as 50 in the newly-announced class for the coming year.  The faculty has grown.  Our clinic has grown in size and sophistication, and is led by Prof. Phil Malone and his extraordinary group of lawyers and teachers.  As many as 150 students grace us with their presence and involvement each year.  Our reach, today, is more international than ever, a charge led by our quite brilliant and wonderful executive director, Urs Gasser, who was formerly a law professor at the University of St. Gallen in Switzerland.

Our funding, too, has grown and diversified.  Initially, it was pretty much just the Berkman family.  Recently, the Center’s budget has grown to between $4 million and $5 million per year.  The funders come from a broad range, including individuals, foundations, governments, and corporations.  We disclose all donors on a web page which the staff keeps up-to-date.  We don’t take any sponsored research.  But if we allocate an unrestricted gift from a corporation to our work on a given project or event, then we disclose this gift as associated with a project (see the ISTTF page, or our Interop work, or our Digital Youth work, each of which have benefited from funds from various supporters).

Some things have not changed as the Center has grown, which is deeply important.  The Center is still a place where people who work there are deeply devoted to a common mission — a mission that has not changed since our inception, dreamed up by JZ and Charlie and just as compelling today as it was when the Center was founded.  It’s a place where understanding the truth is the primary object, whether through teaching, research, or exploration of cyberspace.  We work hard and enjoy one another’s company, challenging ideas, and devotion to our shared inquiries.  It is a serious, fun, compelling place to work, and I’m grateful every day that I’m associated with it.

Interns, I hope you have a great summer — and may you have as hard a time leaving it as I have.