No, Harvard's Berkman Center Isn't Biased Against Apple

Last Updated Jul 8, 2010 7:00 PM EDT

Writing for the Daily Beast, Emily Brill -- daughter of Court TV and Brill's Content founder Steven Brill -- questions whether the Berkman Center for Internet & Society at Harvard University has acted unethically. However, the approach she and, as a result, the Daily Beast took was questionable itself.

The Berkman Center is influential in its work on the intersection of cyberspace and law, and founder Jonathan Zittrain has a high profile in the area. Brill apparently was surprised that the center received strong corporate sponsorship from leading high tech companies, with Google (GOOG) and Microsoft (MSFT) being major donors. Who isn't a donor? Apple (AAPL). And look! Zittrain has been critical of Apple! So there must be something wrong.

The question's fair game, but when you look at all of Brill's "evidence," her article was a waste of electrons and pixels. On the article's first page, Brill writes the following about auditing a seminar, in which the apparently seamy side of academic research and funding came to light:

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.
Good that she disclosed it, but that fact alone should have disqualified her from involvement with the piece. Unfortunately, the article goes downhill from there. Brill grasps at handfuls of facts, duct tapes them together, and hopes that they continue to stick together and present some conflict to grab readers -- and boost her career. But the thrashing about is clumsy, the intellectual structure awkward, and the result a whole mass of nothing.

As an example, Brill spends significant time on discussing the catering for the seminar. Microsoft happened to sponsor it. There's nothing particularly unusual in a corporate sponsor underwriting some activity by a business or law school, particularly when they are involved in executive education. Either Brill didn't realize that, or wanted badly for some deeper meaning.

To get her gotcha moment, she starts by noting that what "first struck me odd about the course" was its "lavish" catering. After detailing the menu for one day, she adds, "According to invoices supplied by an employee at the caterer, the meal tab for Zittrain's seminar was $4,647.56."

Notice the wording. She has presented the total tab for catered meals over a three-and-a-half week seminar, not a single day, and for some number of people, though she fails to note it. Of course: $4600 by itself sounds a lot worse than $4600 split up over 17 days and, who knows?, maybe 15 people. Do the math, and you're at $18 per person per day, probably for a continental breakfast, coffee break, and lunch. That would hardly seem lavish.

And even if the money per person were a bit higher, what did Brill expect? Co-hosting the seminar were both Harvard Law School and Stanford Law School. Brill noted that they were "were treated to special sessions with some of the most powerful players in Silicon Valley," including Larry Brin, Craig Newmark, Mozilla Foundation chair Mitchell Baker, and either general counsels or deputy general counsels from Twitter, Facebook, and Wikipedia. Did she think that the clientèle would dine on McDonald's take-out?

Brill and the Daily Beast drop the total in an attempt to shock and avoid qualifying information that might put things into perspective. It's a manipulative way to use information and create a reaction. But then, the entire article continues to gob together factoids and blow them out of proportion.

About halfway into the piece, after establishing that Google and Microsoft are big donors and that Apple isn't, Brill gets to her main point:

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.

This is terrible work -- intellectually shoddy at best. Of course no one alleged a quid pro quo. Had Brill done that, she and the Daily Beast would have been on the hook for the claim and had to back it up with something more than a loose amalgam of tidbits.

Instead, she juxtaposed in a way that either she or her editor should have known would create a specific impression of unethical and untoward behavior. Her own admissions blows her case apart. As she notes, the Berkman web site clearly states corporate support. The center does make the disclosure. But then, Zittrain and his colleagues don't cite each other. Other entities -- news media, industry figures, and other academics -- cite them. Those other entities are the ones that don't mention the connection. But does Brill mention them? No. She drops it all on the people who can't enforce citation.

Brill notes that Zittrain and the Berkman Center reacted to her questions about corporate backing -- including Zittrain's " personal corporate backing or speaking engagements" -- "awkwardly." If the questions were anything like her approach to the article, I can see why. They would have been clear attempts to to find ammunition to support a shoddy thesis. Even the example of Zittrain's criticism of Apple is highly truncated and misleading:

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."
Read the entire piece and you see that it focused on Apple's control of apps and how that may play into larger issues of freedom and control of expression:
It is tempting to think that a little outside software is better than none. But what is fine for a single device may be bad for the ecosystem. The iPhone's hybrid model of centrally controlled outside software is already moving beyond the smart phone. This is the significance of the iPad. It could have been built either like a small Apple Macintosh â€"- open to any outside software -â€" or as a big iPhone, controlled by Apple. Apple went with the latter. Attach a keyboard to it and it could replace a PC entirely â€"- boasting plenty of new apps, but only as Apple deems them worthy.

If Apple is the gatekeeper to a device's uses, the governments of the world need knock on the door of only one office in Cupertino, California -â€" Apple's headquarters -â€" to demand changes to code or content. Users no longer own or control the apps they run â€" they merely rent them minute by minute.

Without taking sides, it's clear that Zittrain and Steve Jobs have highly different concepts of what computing and information delivery should look like. Is it any wonder that Apple doesn't fund the Berkman Center or that Zittrain and his colleagues are critical? They're on different teams. And if you want to suggest a conflict of interest -- as in, the Berkman likes Google and Microsoft, not their competitor, Apple, Brill might also have noted that the donor list is filled with competitors and potentially antagonistic business interests ... including Google and Microsoft.

Disagree with Zittrain? Fine. Think he's too cozy with Google and Microsoft? Make the argument. But don't try to indirectly damn someone and try to keep yourself looking lily white when you sling mud. Not only do you undercut your argument, but you slip farther into ethical quicksand than your targets ever have.

Image: Flickr user Lachlan Hardy, CC 2.0.

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    Erik Sherman is a widely published writer and editor who also does select ghosting and corporate work. The views expressed in this column belong to Sherman and do not represent the views of CBS Interactive. Follow him on Twitter at @ErikSherman or on Facebook.