lessig on institutional corruption

Professor Lessig is presenting on Institutional Corruption today at the Kennedy School as his first public appearance at Harvard since his return a few months ago.

Professor Lessig likes to introduce three ideas to frame his talk today: 1) influence, 2) independence and 3) responsibility.

Relying on his framework of the four modalities of control that he used in Code, Professor Lessig explains how the law, markets, norms and architecture together exert influence, and that depending on your policy objectives, these four forces can be complementing or conflicting. He suggests that together they form an “economy of influence” that we need to understand if we want to make effective policy.

He continues to explain “independence”, in the sense that something is not dependent on something. Independence matters, because it means that you try to find the right answer for the right reason, as opposed to doing so for a wrong reason you might be dependent on.

Independence, however, does not mean dependence from everything. Lessig reframes independence as a “proper dependence”. In legal terms, it means that a judge depends on the law for her judgment. So independence is about defining proper dependence, and limiting improper dependence.

Responsibility is the third concept Lessig goes into. He tells us about a case he represented in 2006: Hardwicke vs ABS. It was a case that focused on a series of events concerning child abuse, all perpetrated by a single person. The question that was raised: Who is responsible? Lessig makes the argument that responsibility does not lie with the individual, that this individual has no power to reform, and that this is pathological. Instead, he makes the case that responsibility in this case is all the people who knew about the wrongdoings, but refused to pick up the phone. Nevertheless, the focus of the law was on the one pathological person. Lessig suggests it is more productive to focus responsibility on those who have the power to make changes, instead of those are pathological and are not in a position to reform. He notes it is ironic that the one person who is least likely to reform is held responsible, while the one entity who could do something about it, was immune.

He raises another example of “responsibility” gone awry. He cites Al Gore and his book “The Assault on Reason”, and lambasts its narrow perception of responsibility. It focuses on former president Bush, arguably the man least likely to reform, and instead forgets those who could have done something about it, suggesting that they also have been critically responsible.

His argument is one of “institutional corruption”. What it is not: what happened with Blagojevitch; it is not bribery, not “just politics”, not any violation of existing rules. Instead, institutional corruption is “a certain kind of influence situated within an economy of influence that has a certain effect, either it 1) weakens the effectiveness of the institution or 2) weakens public trust for the institution.

He explains the system of institutional corruption using the White House. Referring to Robert Kaiser’s book “So Damn Much Money”, he argues how the story of the government has dramatically changed in the past fifteen years and how the engine of this change has been the growth of the lobbying industry. He illustrates this with numbers: Lobbyists pay with cash which members use as support for their campaigns. The cost of campaigns have exploded over the years, and subsequently, members have become dependent on lobbyists for cash – he cites that lobbyists make up 30-70% of campaign budgets! This is not new, he carefully explains, but citing Kaiser again, what is new is the scale of this practice has gotten out of hand. Members /need/ and take /much more/, becoming /dependent/ on those who supply. This is only during the tenure, but institutional corruption also needs to be understood as something after tenure: 50% of senators translate their senate tenure into a career as lobbyist, while 42% of the house do the same. This suggests a business model, focused on life after government, that perpetuates itself, and influential people who end up becoming dependent on this system surviving, both during and after their time in Congress.

He goes on to give example after example of institutional corruption. He mentions the important work done by maplight.org that tracks money in politics, who have shown that members who voted to gut a bill had 3x times the contribution from lobbyists than those who voted against. Simply put, policies get bent to those who pay. He cites a study by Alexander, Scholz and Mazza measuring rates of return for lobbying expenditures, who conclude that ROI is a whopping 22,000%! He again cites Kaiser, who suggests that lobbying is a $9-12 billion industry.

Why does this matter? It matters if it
1) weakens effectiveness of institution or
2) weakens public trust of institution

In the first case, he argues how lobbying can shift policy. He cites a study by Hall and Deardorff “Lobbying as Legislative Subsidy” on how the work of congresspersons shift as a result of lobbying. Imagine you’re a congressperson and you see it as your goal to work on two issues: one is to stop piracy, the other is to help mums on welfare. The line of lobbyists that will happily help you with stopping piracy is long, whereas not so many will help you with the latter – so work of the congressperson shifts, and thus work of Congress shifts.

Lessig suggests it also bends policies. Does money really not change results? Citing the Sonny Bono case of October 27, 1998, he shows how in copyright lobbying power had a powerful influence in getting the copyright term extended for another twenty years. Does this advance the public good? A clear no. Lessig backs this up by telling how in the challenge at the Supreme Court, an impressive line-up of Nobel Prize winning economists, including Milton Friedman, supported this and that it would be a “no brainer” to sign the support that copyright extension did not advance the public good. But he concludes that there were “no brains” in the House. An easy case of institutional corruption. There are two explanations: Either they are idiots, or they are guided by something other than reason. He suggests of course it’s the latter. It is not misunderstanding that explains these cases.

Lessig continues to explain how corruption can be seen as weakening public trust. He tells us about how the head of the committee in charge of deciding the future of healthcare is getting $4 million from the healthcare industry. Or how a congressperson ended up opposing the public option even though the majority of his constituency supports it. The idea is not that there might be a direct link between the money and the vote, but that if you take money to do something that is against the public interest, people will automatically make that link, and this weakens public trust. If you don’t take money and you go against the popular vote, that won’t reek of corruption.

Lessig goes on to discuss different fields: medicine and the healthcare industry, citing research by Drummond Rennie from UCSF that shows how there is an overwhelming bias in favor of sponsor’s company drugs. How there are 2.5 doctors to 1 detailer (a detailer being someone who is like a lobbyist for the pharmaceuticals, promoting the drugs to doctors, often giving “gifts”). How the budget for detailing tripled in the past ten years.

Lessig asks us: how can we find out whether these claims are true? Do detailing practices either weaken the effectiveness of medicine, or weaken the public trust for it? What would it take to know?

There is also the issue of “the structure of fact finding” that Lessig suggests is corrupt. Again, he argues we need to understand whether this is a process by which results are affected or trust is weakened. He cites how sponsor funded research can cause delay, and mentions the case of “popcorn lung”.

Lessig makes a strong case that we need more than intuition. That we need a framework or metric to know for sure. Because we all have ideological commitments, that we need to escape this in order to have a proper understanding of corruption. This is, in short, the aim of his new project: The Lab. It should be a neutral ground with a framework that determines whether and when institutional corruption exists, to develop remedies for institutional corruption when it exists. He sees the initial work having three dimensions: 1) data – necessary to describe influence and track its change; 2) perception of institutional corruption and understand how it has changed;
and 3) causation – what can we say about what causes what in these contexts in alleged corruption. Having this information, we can then design remedies.

Lessig on Colbert Report

While I’ve been on the road, I missed this very awesome interview on the Colbert Report:

Props to EFF for the link.

France to Downloaders: Stop Infringing or Lose Internet Access

Internet users in France who use their connections to violate copyright law may lose their connections under a new policy announced this week.

In a three-way deal between internet service providers, the French government, and copyright holders, those accused of infringement will receive warnings from their ISPs. If they are identified as continuing to download infringing files, they will be cut off. Reports are vague about the means by which specific users will be identified as regular infringers.

As CNet reports, “The deal also creates obligations for film and music companies, who pledge to make their works available online more quickly and to remove technical barriers such as those that make music tracks unreadable on certain platforms.” This promise to drop proprietary DRM is nice, but if it happens at all, I doubt it will be before users start losing access.

The parties negotiating the deal did not include any civil society groups who could speak on behalf of user-citizens, and unsurprisingly, those groups are angry at the outcome. CNet continues, “Consumer group UFC Que Choisir said in a statement that the deal was ‘very tough, potentially destructive of freedom, anti-economic and against digital history,’ arguing that tough antipiracy penalties are already in place.”

While I find this deal objectionable, I am curious to see how it plays out.

Music Exec Bemoans “Inadvertent” War on Consumers

In a speech to the GSMA Mobile Asia Congress in Macau, Warner Music chief Edgar Bronfman warned the mobile industry not to make the music industry’s mistakes in failing to satisfy consumer wishes:

“We used to fool ourselves,’ he said. “We used to think our content was perfect just exactly as it was. We expected our business would remain blissfully unaffected even as the world of interactivity, constant connection and file sharing was exploding. And of course we were wrong. How were we wrong? By standing still or moving at a glacial pace, we inadvertently went to war with consumers by denying them what they wanted and could otherwise find and as a result of course, consumers won.”

While “Don’t do as we’ve done” is a valid lesson and a newsworthy public admission, industry critics like Howard Knopf are quick to point out that Bronfman evades his industry’s inescapable responsibility for their fate:

Considering all the litigation, lobbying, legislation and treaties that we have seen in the past two decades, “inadvertently” is a strange choice of wording. But let’s take our apologies and conversions where we can get them.

As others have pointed out on the listservs, this is not to say the music industry will stop its scorched-earth litigation. Quite the contrary, they’ve been suing every startup and only settling once they have some equity in the company, using copyright to leverage their way into the successes of the future.

Dems to Colleges: Police Copyright or Lose Funding

Two Democratic chairs of key House committees introduced a bill yesterday that would require colleges to police copyright and pay off the entertainment industry.

Buried on pages 411 and 412 of the 747-page bill, the College Opportunity and Affordability Act of 2007 (pdf), is the following:

Each eligible institution participating in any program under this title shall to the extent practicable—
(1) make publicly available to their students and employees, the policies and procedures related to the illegal downloading and distribution of copyrighted materials required to be disclosed under section 485(a)(1)(P); and
(2) develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.

In other words, if a university does not offer some sort of “alternative” (read: paid subscription) to students and move toward actively filtering copyrighted content, all students would lose federal student aid.

This bill is sponsored by George Miller (D-CA), chairman of the House Education and Labor Committee, and Ruben Hinojosa (D-TX), chairman of the Subcommittee on Higher Education, Lifelong Learning, and Competitiveness. These are the representatives who are, in principle, supposed to stand up on behalf of universities.

The entertainment industry will never be satisfied until colleges actively:

1. Actively pay the entertainment industry via some form of subscription service, e.g. the new Napster, and
2. Block or monitor all other peer-to-peer traffic.

I’ve been trying to tone down my blogging rhetoric, but I’ll make an exception here: This disgusts me. The bill doesn’t even have a number yet, and Miller’s already promising a markup next week. What representative even has time to read this tome by then?

Nobody in Congress bats an eye that Verizon enables enormous amounts of infringment on their networks, but every college and university in the country is now under the gun to amend a juggernaut act despite the express-lane push from the chairmen-authors.

Miller and Hinojosa are happy to throw academic values like the free circulation of ideas, not to mention the scarce resources of educational institutions, in the toilet. Even worse, they’re railroading it through. Shame on them.

Linkfest: RIAA Peer-to-Peer Trial

On Thursday, a federal jury in Minnesota found a woman liable for uploading 24 songs via the peer-to-peer network Kazaa, ordering her to pay $220,000.

The volume of online discussion of this case is unsurprisingly large, but I thought it would be worth highlighting some of the coverage, especially from CNet and Ars Technica.

CNet provides its own linkfest, referencing several articles worth a glimpse. The Bush administration crowed about the case as proof positive that copyright law is working, while Rep. Rick Boucher (D-VA) grumbled that the “damages are obviously excessive and are way out of line.” Unsurprisingly, the defendant, Jammie Thomas, maintained her innocence and decried the large penalty.

Three opinion articles stick out here. Charles Cooper has a basic piece on why record labels are their own worst PR enemies. Declan McCullagh, now blogging as The Iconoclast, has two more, one breaking down why the RIAA won the case, and another giving a not-too-shabby institutional rational choice explanation of how copyright has grown so bloated that fines have far outgrown the offense.

Ars Technica provided outstanding coverage during the trial. Jennifer Pariser, the head of litigation for Sony BMG, provided for two particularly newsworthy entries. First, she noted the labels have lost money in their legal offensive against file sharers.

Pariser also argued copying purchased music for one’s own enjoyment is “a nice way of saying ‘steals just one copy.'” This is a very narrow interpretation of fair use starkly at odds with the Audio Home Recording Act, as interpreted by the Diamond Rio case. In short, current case and statutory law says pretty clearly that ripping CDs to your MP3 player is not stealing.

Perhaps the funniest analysis comes from the first comment following William Patry’s comment on the verdict. As self-described “copyright abolitionist” Crosbie Fitch writes, “I compare the jury to the students in Milgram’s shock experiment” (link in original).

The Game Industry’s Anti-Piracy “Education”

Cnet reports on the Entertainment Software Association‘s “copyright education curriculum geared toward the kindergarten through fifth-grade set.” Game Politics, a blog run by the Entertainment Consumers Association, calls the idea “disturbing,” and further notes that “ESA president Michael Gallagher has come out strongly in favor” of the DMCA.

There’s no word yet on how successful the ESA might be in working their plans into curricula, and Cnet notes that the move isn’t unprecedented—the RIAA has a similar program, but for children no younger than third grade. One might think it wise to wait until kids are a little older to teach legal issues unclear to many adults, but the ESA is surprisingly blunt about introducing this as a moral, not legal issue. From Cnet:

“In the 15- to 24-year-old (range), reaching that demographic with morality-based messages is an impossible proposition…which is why we have really focused our efforts on elementary school children,” said Ric Hirsch, the ESA’s senior vice president of intellectual property enforcement. “At those ages, children are open to receiving messages, guidelines, rules of the road, if you will, with respect to intellectual property.”

Personally, I see a lot of value in offering early—though probably not kindergarten-level—media education. A comprehensive curriculum, however, would recognize the complexity of media use and policy, including fair use and policy controversies. Out of curiosity, I searched the ESA’s new Join the © team site to see what it had to say about fair use. It gets into slightly more detail in a PDF meant for instructors, but all it has to say in an actual lesson is brief and misleading:

Conclude this discussion by reminding students that the special rules for respecting intellectual property in school don’t apply outside the class-room. Students are allowed to copy short passages of copyrighted text, individual copyrighted images, and excerpts from other copyrighted material in their school work, as long as they credit their sources. This is called “fair use.” But no one is allowed to copy copyrighted material outside the classroom for any reason without permission.

What the ESA is doing isn’t an education curriculum but straightforward propaganda, pretty much by their own admission. I do recognize that our elementary curriculum is already embedded with various ideologies (e.g., learning about who “discovered” America), but I’m still somewhat shocked that the ESA would state outright that their goal is to change kids’ minds while they’re still most impressionable. Ideally, I believe teaching can be about giving students the tools to think for themselves, and for that reason, I’m pretty pleased that the ESA already has content online for its Join the © team campaign. I hope it doesn’t find its way into kindergarten curricula, but I think it might make useful reference materials in an undergraduate class addressing media policy and criticism.