Derek Khanna on the Politics of Copyright Reform

Derek Khanna is a rising start in the Republican party and has become the face of copyright reform advocates on the right. While a staff member of the Republican Study Committee, a group that researches policy issues for House Republicans, Khanna authored a a widely read report titled “Three Myths about Copyright Law”. The report outlined a conservative, free market, approach to copyright reform and received a front page endorsement from the American Conservative Union (organizers of CPAC) before the report was taken down due to industry lobbying. The details and ideas in the report deserve their own conversation and won’t be something I’ll discuss in this post. Instead I’d like to outline some of Derek Khanna’s suggestions about fighting for copyright reform that he discussed during an April 9th presentation at Harvard’s Berkman Center for Internet and Society.

Full video of Derek Khanna’s presentation available here (or here on YouTube).

Rules for Political Activism in Tech

Khanna opens his presentation by arguing that copyright reform is not a partisan issue. Instead it is a battle between “those that get it, and those that don’t”, often times a generational battle between older politicians and younger tech savvy officials. Khanna goes on to point out that most members of congress simply aren’t aware of the problems surrounding the current copyright regime and generally do not take an inquisitive approach to understanding them. On this point Khanna lays out three rules in regards to lobbying members of Congress on any issue.

  1. Being right isn’t enough.
  2. It’s not what you say but how you say it, and most important it is who says it.
  3. Framing the issue is the most important.

Looking at the successful battle to defeat SOPA through this lens, Khanna   draws some examples.

First, he recalls how despite the fact that SOPA was always an awful piece of legislation it was “inevitable before it was unthinkable”. The fact that it was a poorly conceived law did not, by itself, cause its demise.

Second, Khanna lauds the broad coalition of individuals and organizations that spoke out against SOPA. It wasn’t just Google that articulated opposition to SOPA, but it was millions of Americans, on the left and right, allied with advocacy groups, small businesses, and trusted internet personalities. It was this broad unified cross-partisan group that gave the arguements against SOPA credibility.

Finally, Khanna talks about how SOPA was framed as an innivation killing bill instead of one dealing with piracy, as it’s proponets had framed it. He argues that framing the argument in this way helped Congressmembers from both parties get behind the idea that the bill was in fact bad for the American economy.

Framing the Issues

Khanna argues throughout his presentation that the way an issue is framed is the most crucial component of winning a political debate, specifically that copyright reform supporters need to develop arguements and narratives that appeal to liberals and to conservatives.

The current narrative laid out by Hollywood and the content industry is that piracy is bad, that it kills jobs, and that it costs the American econmoy billions of dollars each year. Conversely copyright is good, and copyright+, which describes the the current maximalist state of copyright law where the length of copyright exceeds 100 years and and infringement can lead to billions of dollars of damages, is even better. This narrative has been told and retold through decades of lobbying and has become the default framework that guides the copyright conversation.

However, Khanna views the issue of piracy as a third rail and one that should be avoided at all costs when discussing copyright. Instead Khanna encourages the development of counter narratives that focus on the varying concerns  of different audiences.

On the left this means discussing how current copyright law places a burden on the blind who need alternative access to copyrighted works, how the law favors large corporations over the public interest (e.g. car dealerships vs. local mechanics),  and how not being allowed to rip your own DVDs to you computer is fundamentally unfair. These arguments  reframe the conversation and addresses liberals’ concerns over equality, fairness, and  corporate control.

On the right, where Khanna does most of his evangelizing, Khanna puts forth a different set of arguments including how the erosion of the first sale doctrine violates personal property rights, how copyright+ is not at all what the founding fathers intended when drafting the the copyright clause in the constitution, and how the very nature of government backed copyright protections are an intrusion into the free market. Reframing the issue of copyright around property rights, constitutional originalism, and free market  principles, allows copyright reformers to broaden their coalition and bring in conservative voices that may have their own objections to the current copyright regime.

A More Sophisticated Approach

Later in his presentation Mr. Khanna urges digital rights advocates to look beyond the SOPA fight and to understand that defeating legislation in Congress is only a small piece of what needs to be done. Khanna points out that the goals of copyright+ proponents can be achieved through other avenues  outside of traditional legislation, including using executive  branch departments like Immigration and Customs Enforcement (ICE), or through international trade agreements like the Trans Pacific Partnership (TPP). Maintaining vigilance and shedding light on these alternative channels is crucial in preventing the goals of copyright maximalists from being implemented. Mr. Khanna states that “there won’t be a next SOPA” because the industry has other mechanisms it can use to get what it wants.

Video about avoiding Congress via ‘Policy Laundering’

No example makes this more clear than the DOJ shutdown the file storage service Megaupload just one week after the SOPA failed to pass, which seemed to indicate that taking down websites without due process would be illegal. A corollary example in the online privacy space also recently came to light when it was revealed that Obama gave immunity to ISPs for a new ‘cybersecurity’ surveillance program despite the failure of CISPA to pass the Senate.

Mr. Khanna also notes that the aim of copyright reformers shouldn’t only be to thwart attempts to make the system worse, but also to introduce and pass positive reforms. Khanna, talks about how this is a different game entirely and requires a savviness that the current movement doesn’t yet have, citing an example of how the RIAA published an op-ed in the capitol hill publication Roll Call the day before the copyright office was schedule to give congressional testimony.

Asymteic Warfar

Toward the end of his presentation Mr. Khanna discusses his own fight for copyright reform and the individual lessons he’s learned along the way. One point Mr. Khanna stresses is choosing small winnable battles over the “big kahuna” reforms that most activists are interested in. All political movements start small and the goal in the beginning is simply to start the conversation, then to build a portfolio of small but tangible victories. It is important to strategically pick these early fights to be ones that exploit the biggest weaknesses of your opponent’s argument. In Mr. Khanna’s case this has meant fighting for the re-legalization of cell phone unlocking.

Other Tidbits

Below are a collection of some of the other lessons and examples Khanna gives in regards to his fight thus.

  • Make your argument simple. Banning cellphone unlocking is #anticommonsense
  • Use more video content to get your message out
  • Know you ‘third rails’. Don’t talk about piracy.
  • Demonstrate your support with something tangible. Khanna got 114,000 signatures on a We The People petition.
  • Practice activism not reactionism
  • Recognize that a ‘win’ at this stage means simply starting a discussion that questions the role of copyright.
  • Talk about competition, innovation, and individual property rights when talking about copyright.
  • Find allies among from your perceived opponents and make them spokespeople Example: Indie artists against the RIAA, upstart cell phone carriers against Verizon and AT&T)
  • Find good analogies that enforce your narrative, and use them often.
  • Use conservative arguments when talking to conservatives. Example: The librarian of congress who outlawed  cell phone unlocking is an unelected government bureaucrat

Conclusion

Derek Khanna has become widely known for his ability to reframe the conversation around copyright reform using conservative arguments, but this partisan distinction is not what Khanna is all about. Instead Khanna works to create independent narratives that get at the heart of copyright reform issues without relying on the framework, and without falling into the traps, that groups like the RIAA have worked for decades to construct.

Dereck Khanna had many useful insights into the political inner workings of these kinds of policy battles and I would encourage anyone interested to watch his full presentation (Khanna also covers issues including the TPP, CFAA, and DMCA in the Q&A session afterward).

Update: Here’s a blow by blow of Khanna’s presentation from David Weinberger, Senior Researcher at the Berkman center.