Harvard Professor and author of copyright skeptical tomes like “In Defense of Piracy” and “Free Culture” defends himself from accusations of shillery. Lowery digs deep and discovers there is a lot more to this story than meets the eye. 

+++++++++++++++++++++++++

This story is of particular importance to artists because Google’s support of ad supported piracy (MegaUpload) and YouTube’s “whac-a-mole” takedown policy have been a financial disaster for artists.  Much of the the intellectual arguments (some would say propaganda) in defense of Google’s practices arise from the work Lessig has done at Harvard, Stanford’s Center for Internet and Society and Creative Commons. Whether artists know it or not Lawrence Lessig has shaped, if not defined the debate over artists rights and the internet.

Lawrence Lessig has posted a long Medium post defending himself against claims made by Jonathan Taplin (and others myself included) that he has effectively acted as a “shill” for Google and other Silicon Valley interests. Don’t get me wrong, I think it is great that Lessig has finally responded to accusations that his research, litigation and advocacy seems to benefit Google while at the same time the institutions with which Lessig is associated receive substantial money from Google and other Silicon Valley interests. The world is a complicated place. No one can ever avoid every appearance of impropriety.  And to be clear I am not accusing Lessig of actual impropriety. The problem is Lessig has not been forthright (as I shall demonstrate) in his answers. Lessig is less than candid about the breadth of the funding,  and continually downplays the importance of his work to Google and others who exploit artists. But most importantly by defensively denying that there is even an appearance of impropriety, he raises more questions than he answers. The   esteemed professor, his work, his finances and foundations deserves a thorough examination.

First let’s consider the enormous amount of Google funding which seems to surround Lessig and associated institutions like a cloud of stale cigar smoke.

The list of institutions with which Lessig has been formally associated is too long to reproduce here. So lets just look at the most prominent. All of the following are tied to Google in three ways:Google funding; Support of Google in amicus briefs/litigation; and other public support of Google policy priorities including op-eds, academic papers or other public statements.

Center for Internet and Society Stanford University
Electronic Frontier Foundation
Public Knowledge
Creative Commons/iCommons
Free Press (Perhaps most notable for it’s praise of Hugo Chavez’s press restrictions)

Lessig lately has fancied himself a political operative. And as a result two other notable Lessig related enterprises have received heavy Silicon Valley funding including Google.

MayDay SuperPac
Lessig for President 2016

(Yes he ran for President of the United States.  But let’s leave all of that for a later post.)

The reason so many of us involved in advocating for the rights of artists find it hard to believe that Lessig is impartial is precisely because of his numerous ties to Google funded institutions.  It strains credibility for Lessig to maintain he is an impartial player when it comes to copyright issues that impact the bottom line of Google and other Silicon Valley companies. For these companies, their employees and shareholders have long been benefactors of institutions with which Lessig is associated. This is a well established pattern going back nearly two decades. Despite his claims to the contrary there is scant evidence he has ever opposed Google on any substantive issue.

Let’s start with the Stanford Center for Internet and Society

You can tell Lessig is now sweating the partnership between Google and CIS because of the logical gymnastics he engages to maintain the idea he did not benefit financially from this relationship.

From his recent blogpost:

“I have never worked for Google. I have never been paid by Google. I got my job at Stanford before Google was giving money to anyone. My job at Stanford did not include the obligation of raising money for anything. The Dean at the time, Kathleen Sullivan, allowed me to found the Stanford Center for Internet and Society, and agreed to fund it and its work while I was at Stanford. Google became a funder of Stanford to support the work of the Center after that. That was not my doing (again, I didn’t raise money at Stanford), that didn’t benefit me (my salary and the Center’s budget was set and independent of law school fundraising), and it didn’t stop me from doing lots of work that really pissed off Google (see, e.g., “For the Love of Culture”). Google didn’t fund my work at Harvard. It doesn’t fund anything I work on now. And yes, Google has taken policy positions consistent with my own, but most of the important positions were ones I took long before there was a Google policy shop.”

Now let’s look at the announcement from Stanford at the time:

https://web.archive.org/web/20180520181855/https://law.stanford.edu/press/google-inc-pledges-2m-to-stanford-law-school-center-for-internet-and-society/

Stanford Law School today announced that Google Inc. has pledged to contribute $2M to help fund the Center for Internet and Society (CIS) at the law school. The Center, founded in 2000 and located in the heart of Silicon Valley, is a public interest technology law and policy program focused on emerging technologies and the law. The collaboration of Google and CIS seeks to establish a balance between the right to access and use information and the ownership of information.

“This is an ideal partnership,” said Larry Kramer, Richard E. Lang Professor of Law and Dean. “One that stands to benefit not just our two institutions but also the world around us. The work done at CIS, exploring how to enhance availability of knowledge and information while supporting its producers and owners, addresses one of the most important questions of our time. And Google is unique in private industry for the depth of its commitment to finding fair and workable solutions to this same question.”

“This support from Google will be critical to achieving a healthy balance between copyright protection and creative license. We will use this support to build a network of legal resources to achieve in practice the balance that copyright law and the First Amendment intend,” stated Lawrence Lessig, Founder and Director of the Center for Internet and Society, Director of the Fair Use Project and the C. Wendell and Edith M. Carlsmith Professor of Law.

This seems to tell a different story. Lessig seems to clearly understand what he was expected to do with this corporate support. Read between the lines: he is to equivocate in a manner that moves the perceived center of the debate towards Google. This is some real “merchants of doubt” shit.  For those of you not in the copyright policy world, all creators know what a “healthy balance” between copyright protections and first amendment issues really means:  The “right” of commercial third parties like YouTube to profit from infringing content while hiding behind their “users.”  It is at this crucial moment in 2006 we begin the horror of whac-a-mole copyright infringement takedown abuse by YouTube. Songwriters and other creators have not been impoverished by digital disruption rather it is this questionable legal maneuver by Google (and a ideologically compliant 9th circuit) that has created the massive market failure for music in the digital marketplace.  Lessig and CIS were right there from the very beginning to support YouTube.

Shortly after this funding event,  Lessig fully engages in a very public fight on behalf of YouTube without ever disclosing any Google funding.  As Robert Levine writes in Free Ride(2011):

Five days after Viacom filed its suit [Against YouTube/Google], the law professor Lawrence Lessig argued in the opinion pages of the New York Times that Viacom was trying to get a court to overturn the Digital Millennium Copyright Act and darkly warned that such a decision would stifle innovation.”The internet will now face years of uncertainty before this fundamental question about the decade-old legislative deal gets resolved,” Lessig wrote, in an essay that mostly took YouTube’s point of view.  He neglected to mention that Google which had just bought YouTube, had recently given $2 million to the Stanford Center for Internet and Society, which Lessig founded and ran when the donation was paid.

Levine continues:

Google announced its gift to the Stanford center on November 28, 2006, two weeks after closing its deal to buy YouTube. (Lessig says he didn’t disclose the donation since the money didn’t directly benefit him and he had no role in raising money at Stanford.) The company knew its acquisition of the video-sharing site could draw litigation: it set aside $200 million to deal with lawsuits.  But Google also apparently wanted some academic firepower on its side.  Although the center’s policy allows only unrestricted gifts that can be used for any purpose, it announced that Google’s donation would be used to “establish a balance between the right to access and use information and the ownership of information”-presumably by the center’s Fair Use Project [Lessig]. While the center says it “avoids litigation” involving Google, much of its work involves challenging copyright laws in ways that would benefit the company.  Further this in turn could help Stanford: John Hennessy, the dean, serves on Google’s board of directors, and the company has given stock to the university.

Now it’s helpful to take a pause here and note that Lessig is the former director of the Edmond J. Safra Center for Ethics at Harvard University 2009-2015.  That’s right the “ethics professor” was carefully parsing his language to Levine when he denied he should have disclosed the financial ties in his op-ed. Most people would regard this as unethical. But this is par for the course for Lessig. It is built into his ethical DNA. Lessig has constructed a very unique view of his ethical responsibilities as an academic and lawyer.  It’s certainly more contorted and restricted than what most individuals would view as their ethical responsibilities. You be the judge. He helpfully provides a detailed overview in the disclosure statement on his personal website:

It begins:

The simple version is just this:

I do not 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 in a way that might fairly and 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.

Lessig would seem to continually violate his own rules.  The problem is that Lessig doesn’t see it that way and thus follows the above simple statement with a series of definitions, delimitations and exceptions that seem to eviscerate the above paragraph. As well as any normal understanding of ethics.  For example:

“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 am responsible to raise money 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: I am not hired to fundraise for my law school. Thus, if you give a substantial amount of money to Harvard, 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.) [emphasis added]

First, Lessig is relying on a dodgy loophole of his own creation to avoid violating his own rules. In his own words, just because he isn’t “responsible” for asking donors for money, a donor like Google can give money to an institution for which he works, and by his carefully delimited definition he doesn’t directly or indirectly benefit?  See how that works? Also “easily identified interest?”  What is the point of that exception?  One could read that as an advertisement to wash money through third parties.  Right?

Second, Lessig is surely smart enough to understand that money is by definition fungible. A donation that can only be used for staff, building, travel and events, frees up funds that can then be used for his salary.  You see that he leans on this distinction in his latest blog post.  Further when a company like Google gives money to an academic center you run, this raises your academic profile, and likely raises your marketability and salary down the road.  Lessig does not address these ancillary benefits that are decidedly financial. Third in the case of Stanford Law the money was given to support his work.  He doesn’t use that as his helpful example in his “disclosure” now does he?

I have to say it again. Lessig is the former director of the Edmond J. Safra Center for Ethics at Harvard University.

But it gets worse.  Let’s look at how he defines “promote”

“I never promote as policy a position“: This is meant to distinguish work as a lawyer from work as an advocate. I don’t typically do legal work for money. But everyone should understand 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.

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

I frankly don’t quite understand this.  But let me make a stab at it. He is an academic so he doesn’t really have any clients as a lawyer.  So this essentially let’s him “advocate” on behalf of a donor like Google without disclosing the donation as long as it’s the truth? I’m not sure I’m right on this. (I’m glad to be corrected on this one). Although I may not understand exactly what he’s trying to say, I do know a Mack Truck sized loophole when I see it.  This is basically a boilerplate escape valve to let him do whatever he wants. This also appears to be a post facto justification of his failure to disclose his funding in the NY Times op ed.

This time let’s say this all together: Lessig is the former director of the Edmond J. Safra Center for Ethics at Harvard University 2009-2015.

I’m a curious person.  And I did what anyone might do when contemplating Lessig’s curiously delimited disclosure ethics.  I stuck some full paragraphs of his disclosure into a search engine to see what came up.  I got this blog:

https://jpalfrey.andover.edu/2010/07/11/guest-blog-post-lawrence-lessig/

Strange.  It’s a guest blog written by Lawrence Lessig hosted on the Andover academy website?!?  The blog is hosted by John Palfry a fellow at the Google-funded Berkman Klein center and also Head of School at Phillips Academy Andover. (For Brits think Eaton).  At first I thought Lessig was defending himself from something to do with his copyright positions.  Oddly, no. He was in fact defending himself from an seemingly unrelated appearance of impropriety. The Register (UK) reported that his iCommons foundation received money from an online poker tycoon. This was his response.

Wait what?! Online poker? What on earth does this have to do with copyright? Good question. In a nutshell The Register article explains that at least one Lessig affiliated institution (iCommons) appeared to have indirectly benefitted from the infamous for-profit piracy website MegaUpload.

And this is the moment the public image that Lessig has so carefully constructed begins to unravel. For if you follow the story all the way down, Lessig looks less a virtuous defender of liberty, free speech and the rule of law and more like a run of the mill academic/civil society huckster looking for money.

One may be forgiven for wondering at this point if Lessig has more to worry about than looking like a cats paw for Google.  This is criminal conspiracy stuff after all.

Indeed, court documents show that Google, through it’s subsidiary Adsense, AdBrite and an outfit called PartyGaming PLC helped MegaUpload generate hundreds of millions in revenues. From the Mega conspiracy indictment:

Before any video can be viewed on Megavideo.com, the user must view an advertisement. Originally, the Mega Conspiracy had contracted with companies such as AdBrite, Inc., Google AdSense, and PartyGaming plc for advertising.

And as Andrew Orlowski reported in 2010 this is how the money went into the Lessig affiliated foundation:

Shortly after [US anti-] gaming legislation was passed, iCommons received three large donations. Two were from newly-formed and secretive offshore trusts,  while the third was from the founder of PartyGaming, Russ DeLeon.

The first of the trusts was called IETSI, the International Electronic Trade and Services Initiative (IETSI) which made a substantial $1m donation to iCommons. IETSI describes itself as promoting e-commerce regulation, operating under Manx regulation, with a website registered in Gibraltar. But who was it a lobbying vehicle for? On its website, in addition to the Lessig vehicles its only other declared affiliation is with the Remote Gambling Association, the voice of online gambling.

The other donation was from the Kasuma Trust, a Gibraltar-based charitable trust devoted to at-risk children, educational work… and internet initiatives. Kasuma was set up by Anurag Dikshit and Soma Pujari in early 2007

It’s not really clear why the online poker tycoons contributed to iCommons. But obviously the donors had their reasons. Maybe some kind of shared unregulated internet ideology? Regardless shortly after his donation to iCommons, Dikshit cut a plea for violations of US online gambling laws and paid a $300 million dollar fine to the US Treasury. That’s a criminal plea.

Naturally the ethics professor directed iCommons to return the money.

No.

This time lets sing this all together in Queen Bohemian Rhapsody style harmony: Lessig is the former director of the Edmond J. Safra Center for Ethics at Harvard University 2009-2015.

++++++++++++++++++++++++++++++++++

It makes me slightly queasy to type this final section.  It’s one thing to point out the hypocrisy of someone like Lessig based on the logic of his own arguments.  It’s another to point out that there is something deeply wrong and off kilter about the tone of his response to the Register article. Yet I must. This is the man who clearly established the shape of the debate as “artists v internet.”  Therefore his character is important. In his response to Orlowski Lessig is completely unapologetic and constructs elaborate even implausible self-referential justifications for why his actions are “correct.” He is particularly concerned that the public know his actions are completely consistent with his “disclosure” policy.  He can’t seem to admit his own fallibility. Yet nobody can live up to the standards they set for themselves, Lessig thinks that he has to pretend he does. It is sad and suggests to me an unraveling.  Read his response for yourself.  Here.  You’ll never see Lessig the same way again.

I’ve reproduced a portion of it here,as I suspect the Palfry blog will soon disappear:

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.