Berkman Center for Internet & Society

[cc]Copyright's Commons
House of Licenses
House of Resources

1. Is [evil chuckle] the Provost's office on board for this?

I don't speak for the provost's office. The Berkman Center's mission is to bring knowledge to the world. We operate under the "Provost's Caution", which amounts to "Do no damage to the Harvard brand." The Provost's office supported our 1998 Internet & Society Conference, at which we sought to articulate the need for an open code commons in cyberspace. The Provost chairs the HACC, our overarching university information technology committee, which unanimously approved our recommendation to hold a Millenium Internet & Society Conference in May, 2000.

We have not asked for express sign-off by the provost on our effort
to support establishment of an independent nonprofit architecture for
further development of the common.



(a) Email from Harvard Provost

[Harvey Fineberg is Provost of Harvard. Robert C. Clark is Dean of
Harvard Law. Marc Goodheart and Beverly Sullivan are assistants to the President of Harvard.

Date: Sat, 10 Apr 1999
Subject: Re: Fwd: May 20 gathering --

Please be aware that the Berkman Center is not authorized to sponsor the
formation of any new entity outside of Harvard. Sponsorship of any new
entity by a constituent part of Harvard can only be authorized by the
President and Fellows.

I urge you to discuss any ideas you may have about such new entities with
Bob Clark, whose approval would be a necessary step to gaining
consideration by the President and Fellows. I would be happy to discuss
this further with you and Dean Clark, if you and he would like.


(b) Reply to Harvard Provost Harvey Fineberg

Okay. Will do.
Are you coming to the Banquet?
Regards from Fern

(c) Email to Harvard Law Dean Robert C. Clark
Pursuant to the Provost's email which I am forwarding to you, the Berkman Center hereby asks your permission and seeks your support to form in conjunction with other philanthropic and educational institutions the nonprofit corporation styled h2o. We are proposing formation of an entity independent of the Berkman Center so that other educational and phinlathropic communities can participate with us as partners.
h2o seeks to promote and support a vibrant opencode community to make a commons in cyberspace a reality.
Our supporting documentation and unfolding process of discussion and resolution is at .
You should, of course, feel free to call or meet.

(d) Reply from Dean Clark

Dear Charlie,

We will certainly need to have a meeting to discuss this proposal. From
the little I know, I couldn't support it.

I have many initial questions, and they will probably take more refined
shape after we talk. (Why, precisely, is a separate corporation wanted?
What exactly would its purposes be? What would be the likely specific
terms of its contracts with other institutions? Who would review, approve,
and monitor them? How would the corporation's purposes, activities,
procedures, and power arrangements fit -- or not fit -- with the purposes
and policies of Harvard University? Etc.)

In addition to questions, I have a very strong starting presumption against
creating a separate corporate entity that is, in effect, a subsidiary of a
nonincorporated subdivision of a nonincorporated faculty of Harvard
University. From a corporate law standpoint, such a development could
seriously complicate and confuse the allocation of decision making
authority within Harvard. The arguably analogous precedents that I know
fairly well (e.g., the HLS Alumni Association and the Harvard Law Review
Association, which are legally separate though unincorporated
"associations") give me no desire whatever to support additional separate

I am now home with a flu or cold, complete with fever, but will make it a
point to give you a call when I return.
- Bob Clark

(e) eon to Dean Robert Clark

Dear Bob,
Your questions are wonderful. Sorry to hear you have the flu. Perhaps engaging somthing fun to think about will lift your spirits. I look forward to talking as soon as you are well.

Here are summary responses to your questions. I will circulate your questions to get help from others as well

1. Why, precisely is a separate corporation wanted?
Independence is the key reason. If H20 is to function as a consortium of university and philanthopic communities contributing to an open digital commons, then an entity independent of Harvard is needed. It may be that a Massachusetts nonprofit corporation is not the best form. We would certainly value your thoughts on this. You are, after all, the guy who wrote the Corporations book.

2. What exactly would its purposes be?
ITs goal will be to generate a global open code digital commons for purposes of promoting freedom of expression, justice, education, security, privacy, and commerce. We want to express the power of openness with respect to each of these purposes, all with open spirit. We regard this as the spirit of Harvard and the Net.

3. What would be the likely specific terms of its contracts with other institutions?
Agreements will be with contributors. The most significant will be agreements to insure interoperability, documentation, support, and dedication to the public domain of the code we contribute. Agreements will also be with workers. We believe a cadre of open-spirited professionally-skilled opencoders and managers will be willing to work for moderate money compensation, knowing their work will be open to all.

4. Who would review, approve, and monitor them?
Review, approval, and monitoring on the H20 side will be done through a governing structure still to be designed. The objective is to represent the interests of the internet community at large, present and future. The challenge is to create an entity firmly bound to ITs open mission, strongly led, and truly grounded in informed consensus. Rough Consensus and Running Code - mantra of the net. We, together with Jorge Contreras, our lawyer at Hale & Dorr, have learned a lot from our work on ICANN.

Review, approval, and monitoring on the contributors side will be done by contributors, whoever and whatever their process may be. In the case of the Berkman Center, for example, we want to contribute and dedicate the teaching platform tools and content we have collectively developed to the public domain. If you feel you need to approve, we would be happy to have your approval. We are anxious to demonstrate for you as soon as you are able. We want to show you what we are doing both from the teacher and the student point of view.

5. How would the corporation's purposes, activities, procedures, and power arrangements fit -- or not fit -- with the purposes and policies of Harvard University?

I see harmonious and mutually productive fit. The basic mode of H20 is to be pull, not push. Contribute to the Commons only if you want to. If there are two sides to a question, we want to know about IT.

Permitting contribution by faculty and students of their collective work to the digital public domain would fit well with Harvard's purposes and policies. Far from damaging Harvard, ITs name will be enhanced. The attraction of Harvard as a place to learn and teach and live and love and work will swell with the Net as we demo how to be and do good in our world. The pride of our graduates and friends expressed in cash and bequests will grow.

Bob, an afterthought. You should know that we are not trying to leave the reservation. We gave Harvey notice of our intention along with invitation to be a guest of honor at our banquet, just as we did you. We welcome your questions and the opportunity this process will provide to focus the attention of the President and Governing Boards and whole Harvard community on them.

Berkman Center for Internet & Society