Derek Khanna Answers Your Questions

Last week you had a chance to ask former Republican staffer Derek Khanna about his well publicized firing, copyright law, and the state of the government. Read below to see his answers to your questions.

Do You Still Identify Yourself as Republican?
by eldavojohn

I believe your paper would have been unpopular on both sides of the isle but did the Republican knee jerk reaction to it negatively affect your affinity with the Republican party and your efforts to further their cause? Setting aside your differences on Copyright Law with that party, are you still Republican?

Khanna: Absolutely still a Republican. In fact I actually quibble a bit with your premise. The conservative position is that our current system of copyright is not consistent with the Constitution and inhibits innovation by choosing winners and losers– and pretty much all conservative organizations have come out with that opinion. There is a difference between Republican and Conservative that I won’t get into here, but my opinions are conservative and the Republican Party reflects more of the conservative ideology.



Re:Do You Still Identify Yourself as Republican?
by alexander_686

Follow up question: If you had been a Democratic staffer, do you think you would have been fired or would have been treated differently?

That is, what is the interaction between the Republican party verses the general entrenched interests that influences both parties. I have seen many Democrats also advocate for strict IP laws.

Khanna: I’m not sure, I’m not really qualified to assess what happens on the other side of the aisle. But I would think that the memo would never have gotten written at all. The content industry traditionally supports Democrats. And the memo was written for a conservative audience based upon traditional conservative principles.



Law to guide vs. forbid
by Maximum Prophet

One complaint conservatives about liberals is that they tend to try to outlaw stuff reactively. The EPA comes to mind, forbidding property owners certain uses of their land. How can government encourage people to do the right thing without outlawing the wrong thing? How can the government "Speak Softly" but keep the "Big Stick" only when absolutely necessary? With respect to copyrights, could the government tell people it's wrong to let artists starve, while making it easy to justly compensate them for their work?

Khanna: I’m not going to go too off base here, but there are many solutions available other than regulation and forbidding conduct. Often times the market can sort it out, but if, and only if, you ensure that externalities are built in, and you ensure that the government hasn’t already messed with the incentive structures. I’m not really qualified to jump in on EPA issues. And I’m not entirely sure on the rest of your question, as a believer of the free market I don’t think that our copyright system should be built upon ensuring that ALL artists make lots of money and I think that generally the market will facilitate even easier methods of payments with newer technologies.



Re:Great minds think alike
by Tokolosh

My posting from nearly four years ago:

To quote the Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." What does "limited Times" mean? We can agree that one day is insufficient to be an incentive. We can also agree that infinity is too long to promote progress. Therefore, it stands to reason that there is some optimal duration, which both maximizes the rewards for both the inventors, and society at large. Has any research been done to determine this optimum? Is current legislation based on anything other than what lobbyists can buy for their clients?

Khanna: Terrific question. First, limited times is a term left purposefully vague allowing for Congress to change how long copyright should be. This is a reason why I never said that copyright has to be 28 years – set in stone – as the Founders had (kind of it’s a bit more complicated). And my suggested terms are just suggestions – they were designed to be a starting point for hearings to bring in data.

But I think we have to make arguments for why longer than the Founder term is sound. Arguments like, “Our Founder system of 28 years was premised upon a market of x, and today the market is y, which requires a longer recoupment period for the content producer etc.” But of course that wouldn’t justify our current system of life + 70. In my Cato Unbound piece I go through some of the studies on this topic that pretty conclusively find that there is no incentive to content producers for such a long copyright period.

From the piece:

“Research further shows that our system of copyright is suboptimal at best and significantly counterproductive at worst. For much of our history, copyright required registration to receive the full benefit of the extension. If a longer copyright term were critical to provide sufficient incentive to content producers then we would expect, particularly when copyright terms were much shorter, that content producers would choose to extend their copyright. But during the era of registration, Congress found that only “a very small percentage of copyrights are ever renewed.”[2] They found that the rate of renewal in the 1880s was 15%, and less than half of all works were originally registered at all. If a much longer copyright term of life plus 70 years is so necessary, then why did all these content producers choose to only have 28 years of protection rather than the optional 42 years available at the time?

As William Patry argues in his book How to Fix Copyright,

Was there a single author in the world who said, ‘A term of copyright that only lasts for my life plus fifty years after I die is too short. I will not create a new work unless copyright is extent to last for my life plus seventy years’? There is no such person. (p 57)

Several studies have confirmed this as well. In 2009, a study on the production of movies in twenty-three countries that had extended the term of copyright(pdf) found no evidence that longer terms of copyright caused the creation of more works rather than the prior, shorter term. Another study from the University of Cambridge found that the optimal copyright term is 15 years(pdf), with a 99% confidence interval extending up to 38 years. Even the Congressional Research Service concluded that there was at most a small change in incentive in the extension of copyright term.

If there are no or only minimal benefits to this change, what are the costs?”

So in answer to your question there has been a lot of research. We have cross-country research so we know generally what works. And while the data may show slightly different things, it all shows that life + 70 offers us nothing and actually depresses available content. Current legislation is not based upon this discussion, I don’t recall that being the topic of discussion for the last extension, but it should be particularly when the industry comes knocking in 2019 to ask for life + 90 to keep Steamboat Willy from entering the public domain.

I got into some relevant detail in another more recent essay for Cato-Unbound:

“There are certainly legitimate arguments that copyright should be longer than that of our Founders because of certain market conditions that are different from their day – but there are not legitimate argument to say that a system of indefinite copyright abides by the Constitution or our the express intentions of our Founders.

Despite the American history on Copyright, some still argue that copyright should be or could be a perpetual right that exists forever. Many of them have lobbied successfully on a regular basis to ensure that certain highly-lucrative works never enter the public domain. Some against copyright reform hide behind the shadows of claiming that they are not for an indefinite copyright – but every twenty/thirty years they lobby to extend copyright from 56 years, to life + 50, to life +70. It’s very clear what their intentions are. They intend and have largely succeeded in destroying anything of value entering the public domain. Success in perverting the law should not be misinterpreted for constitutional fidelity despite their property law arguments using 18th century vernacular. These proponents are arguing for something very different from what the Founders believed.

Frankly they lost the argument 226 years ago. The Founders explicitly rejected this position.”



Down the Pipe
by CanHasDIY

Is there any future legislation that you know of / heard about during your time as a staffer that we, the People, should get a heads-up on? Specifically, anything nefarious regarding things like copyright, patents, digital property and/or privacy, et. al?

Khanna: Patents need to be fixed and we obviously need major privacy legislation such as ECPA reform etc. I talked about some of the upcoming privacy issues in my interview with Techdirt. I was always particularly concerned with drone strikes against US citizens so I’m happy that is finally receiving some real attention by MSM and the American people.

As I wrote in my piece in the National Review, I think we can do a much better job in allocating visas to high-skilled workers – and I think there is an actual way to accomplish that goal as outlined in the article or other ideas along a similar thought process (perhaps by providing greater help for small businesses acquiring H-1Bs).

But more on topic, we should keep an eye on the Transpacific Partnership Treaty (TPP) because it will be codifying provisions of the DMCA that are very problematic. The DMCA has been used to make some technology “contraband” and to stifle political speech. While we need to protect intellectual property, the DMCA has proved to be a terrible law. It should not be entirely surprising that the DMCA may need revisions and oversight. The DMCA was passed three years before the iPod, six years before Google Books and nine years before the Kindle. But now that it's clear that the DMCA is being interpreted in a way clearly contrary for which it was passed, it’s incumbent upon Congress to act.The idea of putting the DMCA into an international agreement is a very bad idea. If in the United States it has been used to justify censorship of political speech, imagine what other countries will do that don’t have the First Amendment and are looking for legal structure to justify censorship.

This is a big fight and as a Congressional staffer we weren’t allowed to read it – so very scary stuff and I think an unprecedented level of secrecy on this. I also touched upon this in the Cato Unbound piece:

“This treaty includes provisions on intellectual property that are above and beyond those in the Berne Convention. Setting controversial and contested copyright terms in stone through treaty was wrong then, and it’s wrong now. It’s an affront to the legislative process to try to “re-codify” legislative wins into treaty agreements. That would make it significantly more difficult to ever change course.

The length of copyright terms has always received significant debate and disagreement. This was likely the intention of the Founders in not specifying what a "limited time" meant within the Constitution itself. But current drafts of the TPP allegedly establish the law at life plus 70 years. Additionally, it would include or even expand portions of the Digital Millennium Copyright Act (DMCA) relating to anti-circumvention technologies. To be clear, I am strongly against unauthorized copyright infringement, but the DMCA outlawing of anti-circumvention technologies is extremely controversial—and rightfully so.

The DMCA created rules that until recently made it illegal to jailbreak your own iPhone or to develop a program to read a Kindle book aloud to someone who is blind. The DMCA still bars developing, selling, providing, or even linking to technologies that play legal DVDs purchased in a different region, or to convert a DVD you own to a playable file on your computer. Because no licensed DVD playing software is currently available for the Linux operating system, if a Linux user wishes to play a DVD that they have legally bought, they cannot legally play it on their own computer. The DMCA’s rules have also made legitimate fair uses of copyrighted material much harder. Using snippets of video for classrooms is legal fair use, but to do so, teachers have to use illegal technology to “rip” the DVD to a playable and editable file, or they must illegally download the file online.

Within the leaked details of the TPP Treaty there are many troubling features, but perhaps most troubling is the secrecy surrounding the negotiations. Members have been allowed to view documents, but most of their staff and the general public have been denied access. Outside of the national security realm, this type of secrecy in regard to a treaty is particularly troubling and perhaps unprecedented. Another troubling aspect is that despite this secrecy, there have been “stakeholder” presentations representing one particular side and vested interest, rather than the perspective of the general public or the requirements of our Constitution. One of the stakeholder presentations at the latest TPP negotiations was titled "The Walt-Disney Company: Creativity, Brought to you by Copyright.” At the same time, representatives from the Electronic Freedom Foundation (EFF) were denied access and not allowed in the building for recent negotiations.”

But the recent decision by the Librarian of Congress really takes the cake, which made it illegal to unlock your own cellphone. In a recent article I stated that:

“Congress's inaction in the face of the decision by the Librarian of Congress represents a dereliction of duty. It should pass a new law codifying that adaptive technology for the blind, backing up DVD's to your computer, and unlocking and jail breaking your phone are lawful activities regardless of the decisions of the Librarian of Congress.” (article)

Our White House petition on this issue is currently at 75,000 but we have to get to 100,000 by February 23, 2013. This will be a big opportunity for advocates of sounds technology policy.



Hope?
by Hatta

How do we Americans manage to retain any hope for any sort of positive change when people who are paid to identify beneficial reforms get fired for upsetting special interests? Doesn't your case prove that it's impossible to effect reform through the system? Do you belive that Democracy in America still exists, and if so, why?

Khanna: Democracy is more than just people voting and it’s more than just activism for your candidate of choice. The people have immense power when they are united and coordinated. Unfortunately, most organizing up till now has required major organizations to set-up – but not anymore.

Members of Congress are particularly sensitive to interests from their constituents as expressed through letters, e-mail and phone calls to their office. This is why a united and coordinated movement can be so successful in stopping legislation. But activist movements, like the SOPA protest, cannot rest after stopping one bad piece of legislation. Instead, we must take the next step which is actually passing good legislation.

I imagine that ad-hoc groups of people who agree on some policy idea will form to both stop bad legislation but also to push good legislation. It will take a while to transition to that, but once that is done, then we will have much more of an effect and a substantive democracy. But that will require activism and involvement.

The cellphone unlocking issue is a perfect example of where the people could actually fix policy. The traditional players in DC are unlikely to do so on their own, the wireless industry likes the ruling, and many of the other technology companies may see this as an issue where they have little to gain– so it’s up to the people themselves to step up and say this ruling is crazy. The idea that average people can be arrested for unlocking their phones is insane. I hope that the people step up for their own property rights.



Lawmakers becoming Obsolete
by SinisterRainbow

The United States was founded as Republic, primarily (so it is said) because having individual voices was impossible with the technology of the time. However, we live in an age where the Internet has given us instant communication and access to vast information, where we can relatively securely pass information around, and where especially, we can have every voice heard to write our own bills and laws. Iceland may be small, but they have proven it's more than just a theory. We have open source books, open source software, open encyclopedia, with more 'open' type projects all the time - which have proved immensely successful and very efficient when it comes to money. However, the trend is in the opposite direction, with more power given to lawmakers and large corporations (in the de facto sense at least as contributions are now unlimited, it raises the bar of entry), and congress with it's two main parties, are in a huge poker match. What do you see as the pros and cons against an open-Bill type of system, where the power of the people get a more realistic voice, where the history can be saved for eternity, where the slightest changes can all be remembered using repositories, where anyone can contribute, where it would save multi-millions of dollars in taxes, where multiple types of Bills can be presented and the one the people wish for most receives the most votes? You have represented a party that claims they stand for smaller government, yet it's one that has increased government size as much and many times, more than democrats. Shouldn't such a system be at the forefront of Republican agenda? Or has big business lined the pockets so fat of every member in congress that this is not possible without some type of revolution..?

Khanna: You are correct that the Republican Party claims they are the party of smaller government, yet they have failed to deliver while they were in power – and conservatives are frustrated with the party for that reason. I think that Democrats have been worse in that regard, but clearly the Bush years were very bad ones for fiscal conservatism.

Your idea for a more open government and transparency is interesting, but while I want the people to be more involved in our process I do like the idea – in concept – of representative democracy (I’m not sure exactly what you are saying in that regard).



Would you do it the exact same way again?
by rmdingler

Hindsight being on the order of 20/15 or so, would you make the same bold statement, or, knowing the consequences and repercussions, would you be a bit more tactful and attempt to reform the system from within?

Khanna: I tried to reform the system from within – by doing my job. In this situation, discretion and tact was used as much as possible.



Now What?
by eldavojohn

You told other staffers when you left: Don't be discouraged by the potential consequences. You work for the American people. It's your job, your obligation to be challenging existing paradigms and put forward novel solutions to existing problems.

So now what? What's your plan? I mean, you can tell them not to be discouraged but that's a pretty hefty weight to put on your own shoulders. Anyone who gets a check from the content industry (and I think that's everyone in DC) is going to blacklist you. Do you see yourself taking a Ralph Nader-like approach to politics? How do you even get your foot back in the door? You do realize that if you don't return or rise to another kind of constituent-focused power that your above encouragement will fall upon deaf ears as you will become the example of what happens to an outspoken staffer?

Khanna: Yes, I stand by that statement. We need creative destruction of failed ideas and we need a thriving competition for promising new ideas. Not solving problems but “getting along” is not enough to fix our system at this point.

In normal times, the system can function by each of us playing a minimal role in its proper functioning – but when the system is like it is today, it requires those of us who are paying attention to be more active participants. Democracy is tough, it requires active engagement and participation.

As for me, I have a bunch of plans in the works. Right now I’m working on the cellphone unlocking issue that I mentioned because it’s outrageous and unacceptable. But it’s also a misstep by the other side and therefore it’s a strategic opportunity to restore property rights. Doing so will start to change the overall discussion on technology policy and it’s a winnable battle. I hope you will consider signing and promoting our White House petition and getting us over 100,000 by the end of the week.

I plan on continuing to write and research on sensible technology policies for our country through my fellowship with Yale Law and hopefully being a part in successful advocacy movements going forward.

Follow me on twitter to find out about my next steps. Or shoot me on twitter @Dkhanna11 and e-mail if you have ideas ([e-mail]).