Arthur Miller:  Is He At Harvard or Concord Law Schools

What happens if you "sell" your course materials to an online university while you are on the faculty in the Harvard Law School?  I suspect that this would not have been an issue in 1970 if Harvard's Professor Miller had made videotapes for a Concord correspondence course.  I think this would not be a big issue in 1999 if the videotapes were merely video supplements for chapters in a textbook authored by Professor Miller, although the line gets fuzzier with respect to what is a textbook with supplements versus what is a "complete course."  If the materials begin to look like a complete course that merely needs another instructor to conduct examinations, assign grades, and answer questions from students, there is a world of difference between 1970 and 1999.  In 1970, Harvard University would not even contemplate starting up a correspondence school  In 1999, however, Harvard University is well underway in developing web-based distance education programs through Pensare Corporation as described at http://www.trinity.edu/rjensen/book99.htm#Prestige.

Virtually all major universities will offer distance education over the web in the 21st Century.  This is going to lead to increasing conflicts between universities and employees regarding "who owns what" and "what is allowed" with respect to selling of intellectual properties.  The issues have many complex dimensions.  Faculty tend to think that they have all rights to intellectual properties that they produce except when terms to the contrary are explicitly written into employment and research funding contracts.  Most certainly there is an established and unwritten tradition that faculty may sell rights to their textbooks and textbook supplements.  But it is also true that prestigious employers make it easier for faculty to make better outside deals than would otherwise be the case.  Professors at the Harvard Law School will become very wealthy even if they teach for free, because merely being a professor at such a prestigious institution is a ticket for lucrative consulting and deals from publishing companies.  Professor Harvard, Professor Princeton, Professor Stanford, etc. have all sorts of opportunities that would not be nearly as lucrative if they were not affiliated with prestigious institutions.  In fact, merely being on the faculty of such institutions for a short period of time adds value to a resume.  

In the past, universities made a hard distinction between an on-campus "course" and the instructor's "course materials."  The web is turning established traditions upside down.  The most prestigious learning institutions on earth are in the process of porting those on-campus courses to the world via the web.  Selling intellectual property rights to web competitors adds new employer/employee conflicts that just did not arise in the simple times before the world wide web was invented by Tim Berners-Lee and his physicist colleagues in 1990.  The issues are relatively easy to resolve with new hires if employment contracts explicitly take intellectual property rights into account.  The transitory problem revolves around us old duffers who were tenured with vague or non-existent contract terms regarding intellectual property rights.  Unfortunately, most faculty in most higher education institutions fall into the latter category even if they are not yet old duffers.  The issues are very complex, and I worry a great deal about institutions that naively bow to early pressures of faculty to sell the farm so to speak.  Rushed out newly written policies that sell the farm for nothing are short-sighted.  Perhaps Harvard University has taken the more prudent course of action for the long run (I may lose a lot of friends over my position on this.)

The excerpts below come from the front page of The Wall Street Journal, November 22, 1999.

Why Harvard Law School Wants To Rein In a Star-Struck Professor 
By AMY DOCKSER MARCUS Staff Reporter of THE WALL STREET JOURNAL

Long before Judge Judy and Judge Joe, there was Arthur Miller and "Miller's Court," a television show that helped explain the law to nonlawyers. Mr. Miller burnished his persona as TV host in an acclaimed public-television series examining the media and society.

In Socratic fashion much imitated by later shows, the Harvard Law professor would posit an issue taken from the daily headlines to a panel of experts, then lead them through questions designed to probe where they stand.

Now Mr. Miller has become embroiled in a case that would be perfect fodder for one of his TV shows. "A Harvard professor wants to give an online course at a smaller school," one can imagine him telling the audience in his Brooklyn-tinged baritone. "Who owns his teaching: the professor or the university? Can two institutions offer his lectures at the same time? You decide."

Last summer, Mr. Miller -- one of Harvard's most recognizable names -- signed on with the Concord University School of Law, an online degree-granter set up by Washington Post Co.'s Kaplan Educational Centers, and videotaped 11 lectures for a course on civil procedure. To him, Mr. Miller says, the Web represents what TV did when he started doing "Miller's Court" in 1979 -- the next frontier for teaching law to the masses.

Harvard doesn't see it that way. In a sign of academia's growing unease at the encroachments of the Internet, the university wants to pull the plug on Mr. Miller's Concord affiliation. Harvard says that despite the surface similarities, Internet lectures aren't like an educational-TV program. Concord is a school, with an enrollment of 170 students, who each pay $4,200 a year to attend. Harvard policies bar faculty from teaching for another educational institution during the academic year without getting the dean's permission.

But Mr. Miller argues that he isn't teaching. He never meets, interacts, or exchanges e-mail with any of the Concord students. They are tested and graded by other faculty at the school. When they have questions about the material in the tapes, it is those teachers, not Mr. Miller, who respond to them.

In a six-page letter to Harvard Law School Dean Robert Clark, the professor argued that he hadn't violated the university's conflict-of-interest rules. "I simply do not see any distinction between preparing a few hours of thoughts about civil procedure on videotape for use at another educational institution via frontier technology and the publication, in whatever form, of casebooks, textbooks, hornbooks, student aids, audio tapes, data collections, or other educational material," Mr. Miller wrote.

Beyond the Gates

Mr. Miller says he feels "vilified" and had even questioned whether he wanted to continue teaching at Harvard. And he argues that the implications of his battle over his Concord involvement go far beyond the gates of Harvard Yard.

The university never objected to his high-profile forays into TV, including a stint as legal editor of ABC's "Good Morning America." Indeed, freelancing is a way of life at Harvard, and the university officially permits faculty members to do outside consulting as long as it accounts for no more than 20% of a professor's "total professional effort." Mr. Miller's colleague Alan Dershowitz helped defend O.J. Simpson, and is a regular on "Rivera Live." The head of the Department of Afro-American Studies, Henry Louis Gates Jr., writes for the New Yorker and stars in a PBS series based on an African-American encyclopedia he co-edited.

The 20% rule has sometimes been controversial, in part because deans and faculty often interpret the limitations differently -- and the general conflict rules now are under review by Harvard's provost. The rush to the Internet has complicated matters even more. It can involve a potential audience of millions and at least the promise of a lot of money, all without violating Harvard's policy. A professor's existing course can be downloaded from the Internet and then viewed anytime.

In the case of Mr. Miller, he made all of his videotapes during the summer academic break from Harvard, when he had no teaching responsibilities. Concord students can watch his lectures on the Internet and then participate in online discussion groups with actual Concord teachers. In his letter to the dean, Mr. Miller argued that Internet ventures cannot be considered teaching for another school because "the very fact that these lectures will be videotaped means that I -- in the corporeal sense -- will not be giving them 'at' another educational institution."

'Not a Gray Area'

In Miller vs. Harvard, the experts are divided as to whether he has crossed the line. "This is not a gray area," says Harvard Business School Dean Kim Clark, who gets many requests by faculty eager to cash in on the Internet boom. "If you want to get the content and the impact of Harvard faculty members, you have to do it at Harvard."

"Arthur got jumped on," counters Charles Nesson, a Harvard Law professor who is involved in some Internet ventures but nonetheless says he is ambivalent about the subject. "Arthur loves a show. Harvard's problem is it hasn't offered to produce him. Why are they letting Concord take this gem? If Harvard does nothing, then those with the drive and experience to experiment with new technology will go off and do it somewhere else."

"I see both sides," says Mr. Gates. "The university makes the course possible, but the professor does the course. I've been teaching the same course, with modifications, for 23 years. I've taught at Yale, Cornell and Duke, too, and when I moved to a new university nobody said to me I couldn't take my course with me because the university owned it."

Why is Harvard so irked? "It's the money," says Mr. Dershowitz, who says he turned down an offer by students in his class who claimed they could earn $100 million setting up a Dersh.com site to give legal advice online. "What distinguishes the Internet from everything else is the number of zeroes. The money is so overwhelming that it can skew people's judgment."

"Arthur does this for Concord, and then the Michael Milkens and the Microsofts will come along offering huge amounts of money to Harvard professors," echoes Mr. Nesson. Suddenly, "the cream of Harvard is available online, and it's on sale from Microsoft."