Harvard vs. Steve Jobs [...guess who funds Harvard's Berkman Center for Internet & Society?]

Harvard Law star Jonathan Zittrain is an influential critic of Apple—so why doesn’t he talk about donations to his research center from Steve Jobs’ competitors? Emily Brill investigates.

Professors at Harvard Law School’s influential Berkman Center for Internet & Society consistently take positions on hotly debated business issues in support of companies like Google, which favor a free-wheeling Internet culture and less control over intellectual property, and against companies like Apple and AT&T, which—at least when it comes to hardware like the iPhone—favor closed digital systems and stricter intellectual property rights.

For example, a week after the iPad announcement last January, The Financial Times published an op-ed by Berkman Center founder and star professor Jonathan Zittrain critical of Apple, declaring: “iPhone thus remains tightly tethered to its vendor—the way that the Kindle is controlled by Amazon … Mr. Jobs ushered in the personal computer era and now he is trying to usher it out."

What most readers don’t know is that the Berkman Center and many of its leading professors have financial and personal ties to Google and other tech companies—ties that are not disclosed when these academics speak or publish, and that I discovered after auditing a class with Zittrain. The 40 year-old Harvard professor is best known for his 2008 book The Future Of The Internet—And How to Stop It, which lays out his career thesis: that “the generative,” or free and open Internet, “is on a path to a lockdown, ending its cycle of innovation—and facilitating unsettling new kinds of control,” the book jacket summarizes.

Zittrain visited Stanford Law School in January to teach a three-and-a-half week seminar called “Difficult Problems in Cyberlaw.” (Disclosure: I was invited to audit this class in the course of applying for a part-time research job at the Berkman Center—a job I did not get.) What first struck me as odd about the course was its lavish catering. On January 4 the menu offered, among other choices, Mista Salad: Simple and Delicious Mixed Field Greens with Cucumbers and Ripe Tomatoes in a Light Vinaigrette, and Harvest Roasted Turkey with Oven Roasted Turkey Panini, Sage Aioli, Cranberry Chutney, and Munster Cheese. According to invoices supplied by an employee at the caterer, the meal tab for Zittrain’s seminar was $4,647.56.

The class, it turned out, was funded by “a special grant from Microsoft,” according to Stanford Law School Dean Larry Kramer. Students were not made aware of Microsoft’s involvement.

After finding out about the Microsoft grant, I became more curious about how academic work about the Internet is funded, and began asking the Berkman Center and Zittrain for more details. According to a statement provided on June 10 by Berkman co-directors John Palfrey and Urs Gasser, Google is the center’s top corporate backer and its fourth-largest donor (Harvard University is fifth), providing roughly $500,000 over the last two years to support an overall annual operating budget of approximately $5 million. Palfrey and Gasser say the Berkman project receiving the most financing from Google, StopBadware, is “now a separate 501(c)(3) entity,” but when I spoke to the project’s director, Maxim Weinstein, in May, Weinstein said he still works in Berkman-leased office space in Cambridge and that actual plans to phase out StopBadware’s relationship with Berkman are “fuzzy.”

According to Google public affairs representative Emily Wood, StopBadware is “the best example” of how Google has worked in partnership with Berkman.

Zittrain is also personally close to Google co-founder Sergey Brin; Zittrain’s research assistant, Elizabeth Stark, said she and the professor, whom she calls “JZ,” celebrated New Year’s Eve in California with “Sergey and Anne.” (“Anne” is Anne Brin, Mr. Brin’s wife.)

Indeed, my seminar with Professor Zittrain made clear that his sphere of influence includes some of Silicon Valley’s most powerful, and that these relationships are overwhelmingly aligned with the free/open source crowd. We were treated to special sessions with some of the most powerful players in Silicon Valley, including Brin, Google search guru Matt Cutts, Mozilla Chairperson Mitchell Baker, Twitter General Counsel Alexander Macgillivray, Facebook Deputy General Counsel Michael Richter, Wikipedia General Counsel Mike Godwin, Creative Commons Chair Esther Wojcicki (Brin’s mother-in-law), and Craigslist Founder and CEO Craig Newmark.

The seminar was highly enjoyable, but it seemed more like an insider briefing from one side of a broad debate than a scholarly discussion of those “Difficult Problems in Cyber Law.”

All of which makes it ironic that the class was funded by Microsoft, the original closed-systems computer monopoly. Yet Zittrain is generally a fan of Bill Gates’ brainchild, according to a 1999 Slate article about the federal government's antitrust case against Microsoft. "I'd better reveal a possible bias: I really like Microsoft," Zittrain wrote. In the piece, he reminisced about his college internship with the company in the 1980s, working to improve the spreadsheet software Excel.

According to Palfrey, Microsoft has donated between $100,000 and $150,000 to the Berkman Center for 2010. Apple, on the other hand, does not fund the Berkman Center. AT&T, currently the exclusive carrier of Apple’s iPhone (the product Zittrain loves to hate), has participated in just one Berkman project—an Internet Safety Technical Task Force that took place in 2008 and included 20 other companies and organizations. AT&T contributed $10,000.

On June 3, as I was reporting this piece, asking about the nature of Berkman's funding, AT&T suddenly appeared on the Berkman Center’s website list of “current sponsors.” After I inquired about the change, on June 7 AT&T returned to the website’s “past supporter” list, but the center would not comment on why. AT&T spokesman Michael Balmoris said he has no idea why Berkman would list (or unlist) the company as a "current sponsor."

The trust Zittrain inspires makes it all the more important that he disclose the financial backers of his research. He is virtually a rock star to his students; not only a highly regarded teacher, but approachable and passionate about his work, without being pretentious. Like his students, Zittrain prefers jeans and a backpack. “He's still like a 14-year old boy,” Stark says of “JZ.”

No one has alleged that anyone at Harvard Law School has formulated opinions because he or she was paid to. But Berkman and Zittrain, due in no small part to the force of Harvard's branding, have become increasingly important players in Internet policy and media circles. The appearance of conflicts matter; even if such conflicts are not the stuff of life and death, as they might be in medical research, they do impact legislation, stock prices, and consumer choices.

In other words, the “boy” and the Internet center Zittrain co-founded in 1997, just two years after earning his J.D., have hit puberty. The problem is that the nature of Berkman and Zittrain’s corporate support is never mentioned when he or the center are cited as authorities.

When I visited Berkman in April—its offices are across the street from the Harvard Law School’s main quad—Communications Director Seth Young told me there was a reporter from Fox News in the building interviewing a professor. Weeks before, The New York Times’ Steven Johnson cited Zittrain as “one of the Web’s brightest theorists.” Brian Stelter, a media reporter at the Times, told me he’s been reaching out to Zittrain and the Berkman Center for as long as he can recall.

In repeated email and voice mail exchanges, Zittrain declined requests to answer questions about his personal corporate backing or speaking engagements. (Zittrain is listed on the Washington Speaker’s Bureau website, which quotes his speaking fee as between $15,000 and $25,000; he is also listed on the Monitor Talent Speaker’s Bureau website as available for consulting or keynote addresses. Both companies declined to comment.) He said he was feeling ill the week in June that we had scheduled for a phone interview, canceling it. I then asked Zittrain over email if he had a personal disclosure statement or policy. He answered that he could not “engage on this,” citing major surgery he had in May. After I learned he was back on the speaking circuit, I made several attempts to follow up by email and by phone. He continued to decline comment, citing his health and other “long-arranged” commitments.

Harvard Law School and the Berkman Center reacted to my questions just as awkwardly. HLS Communications Director Robb London says faculty disclosure requirements are “contained in the faculty manual, which is not a document that we make public.”

Berkman Center staffers seem unfamiliar with this document. “Don’t be a jerk,” Berkman Managing Director Colin Maclay, who handles fundraising, said lightheartedly. “I mean, do we have a policy? No, not that I know of.”

But the Berkman Center’s relaxed approach may soon change. Harvard has quietly been working on a new "University-wide conflicts-of-interest policies and principles" framwork that could have a significant impact on Berkman Center-affiliated faculty. Vice Provost for Research Dr. David Korn, who is leading efforts to craft the policy, says it will cover all university faculty.

Korn is a former dean of the Stanford School of Medicine; he was recruited by Harvard in 2008 after a controversy over Harvard Medical School professors promoting drugs manufactured by companies such as Pfizer and Merck, from whom they had been paid as consultants.

A model for Harvard could be the stringent personal disclosure policy of Lawrence Lessig, one of the Berkman Center’s co-founders and a long-time Zittrain colleague. Although now directing Harvard’s Safra Center for Ethics (where he says his focus is “institutional corruption”), and no longer connected to Berkman or teaching cyberlaw, Lessig remains the biggest name in Internet legal academia.

Lessig posts his disclosure policy on his website, including details on how he navigates his relationships with technology companies and organizations with corporate sponsors. Lessig notes on his website that by exhaustively articulating his disclosure policies, he intends to call attention to “corruption in a more subtle sense….even at the risk of indirectly calling some of my friends ‘corrupt.’”

Lessig would not comment on Zittrain’s or the Berkman Center’s disclosure polices. But asked generally about the responsibilities of high-profile professors working in areas like law and medical research, where their opinions can affect big business, Lessig spoke approvingly of Harvard’s efforts to draft a new conflicts and disclosure policy. “It’s the most ambitious of any in the country,” he said.

The new policy—the result of two years of work—will be announced in late July, according to Korn. He said the Law School was the last of Harvard’s units to agree to the draft, in what he said has been an exhaustive school-by-school review process.

“They like to be left alone,” he explained. “For them it took quite a bit of conversation and discussion to get them to join the party. … But they really didn’t have any choice. In the end everybody was going to be part of this.”

Harvard Law School Dean Martha Minnow did not respond to a series of emails and phone calls seeking comment about the school's conflicts policies and Korn's assessment of the law school's attitude toward his work. London, however, the HLS communications director, told The Daily Beast in an email that HLS has "joined with colleagues" from across Havard's many colleges to participate in the process. "The expectation," London wrote, "is that, informed by the principles developed by the university-wide committee, each faculty will work over the next year to develop an updated policy."

Professor Lessig's disclosure statement conIudes, "I don't offer this as a tool to condemn. I offer it because I believe this is a conversation we all should have."

Emily Brill graduated from Brown University with a degree in History. She has written for The Philadelphia Inquirer, and has worked at MSNBC’s Morning Joe, and for Journalism Online, LLC. She lives in New York.

There's no doubting that Steve Jobs is a liberal (although, to my eye, of a libertarian bent), but he's also a brilliant capitalist. Can't have that. Read the following classic from Joseph Schumpeter and tell me if it doesn't describe Apple (and Jobs) to a tee.

Does that maybe suggest a reason why key segments of the Left are, as the article above demonstrates, anti-Apple? As are the rabid open-sourcialists, despite Apple's conspicuous and considerable contributions to open sours; instead, what animates these folks is the philosophy that there should be no such thing as intellectual property (and meanwhile they seem highly suspicious of other kinds of property as well)? I speak, of course, of worthies such as Anarchist Eban Mogland ("Death of Proprietary Society," "Anarchism Triumphant"; see http://emoglen.law.columbia.edu/publications/maine-speech.html for an example of his philosophy). Mogland's religious fervor on the topic of free/open-source (FOSS) software is animated by such faithful pieties as "production of executable software without property relations inherently develops superior software." And then there's anarcho-communist Richard Stallman, (whose stated goal is to "eliminate independent coding as a profession” and who pals around with the likes of Hugo Chavez, cf. http://www.olpcnews.com/sales_talk/countries/bolivarian_pc_venezuela.html). See a common thread?

On to Schumpeter:

http://transcriptions.english.ucsb.edu/archive/courses/liu/english25/materials/schumpeter.html

From Capitalism, Socialism and Democracy (New York: Harper, 1975) [orig. pub. 1942], pp. 82-85:

Capitalism, then, is by nature a form or method of economic change and not only never is but never can be stationary. And this evolutionary character of the capitalist process is not merely due to the fact that economic life goes on in a social and natural environment which changes and by its change alters the data of economic action; this fact is important and these changes (wars, revolutions and so on) often condition industrial change, but they are not its prime movers. Nor is this evolutionary character due to a quasi-automatic increase in population and capital or to the vagaries of monetary systems, of which exactly the same thing holds true. The fundamental impulse that sets and keeps the capitalist engine in motion comes from the new consumers, goods, the new methods of production or transportation, the new markets, the new forms of industrial organization that capitalist enterprise creates.

As we have seen in the preceding chapter, the contents of the laborer's budget, say from 1760 to 1940, did not simply grow on unchanging lines but they underwent a process of qualitative change. Similarly, the history of the productive apparatus of a typical farm, from the beginnings of the rationalization of crop rotation, plowing and fattening to the mechanized thing of today–linking up with elevators and railroads–is a history of revolutions. So is the history of the productive apparatus of the iron and steel industry from the charcoal furnace to our own type of furnace, or the history of the apparatus of power production from the overshot water wheel to the modern power plant, or the history of transportation from the mailcoach to the airplane. The opening up of new markets, foreign or domestic, and the organizational development from the craft shop and factory to such concerns as U.S. Steel illustrate the same process of industrial mutation–if I may use that biological term–that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one. This process of Creative Destruction is the essential fact about capitalism. It is what capitalism consists in and what every capitalist concern has got to live in. . . .

Every piece of business strategy acquires its true significance only against the background of that process and within the situation created by it. It must be seen in its role in the perennial gale of creative destruction; it cannot be understood irrespective of it or, in fact, on the hypothesis that there is a perennial lull. . . .

The first thing to go is the traditional conception of the modus operandi of competition. Economists are at long last emerging from the stage in which price competition was all they saw. As soon as quality competition and sales effort are admitted into the sacred precincts of theory, the price variable is ousted from its dominant position. However, it is still competition within a rigid pattern of invariant conditions, methods of production and forms of industrial organization in particular, that practically monopolizes attention. But in capitalist reality as distinguished from its textbook picture, it is not that kind of competition which counts but the competition from the new commodity, the new technology, the new source of supply, the new type of organization (the largest-scale unit of control for instance)–competition which commands a decisive cost or quality advantage and which strikes not at the margins of the profits and the outputs of the existing firms but at their foundations and their very lives. This kind of competition is as much more effective than the other as a bombardment is in comparison with forcing a door, and so much more important that it becomes a matter of comparative indifference whether competition in the ordinary sense functions more or less promptly; the powerful lever that in the long run expands output and brings down prices is in any case made of other stuff.

It is hardly necessary to point out that competition of the kind we now have in mind acts not only when in being but also when it is merely an ever-present threat. It disciplines before it attacks. The businessman feels himself to be in a competitive situation even if he is alone in his field or if, though not alone, he holds a position such that investigating government experts fail to see any effective competition between him and any other firms in the same or a neighboring field and in consequence conclude that his talk, under examination, about his competitive sorrows is all make-believe. In many cases, though not in all, this will in the long run enforce behavior very similar to the perfectly competitive pattern.

(pp. 82-85)

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