Techdirt Interview With Derek Khanna, Author Of The RSC 'Fix Copyright' Policy Briefing

from the now-that-he-can-talk... dept

“In contrast to traditional property, copyright was created by the Constitution; it did not exist in the common law. Without the Constitution's copyright clause, there would be no preexisting right in creative works. What's more, the copyright clause does not recognize an inalienable right to copyright, but instead merely grants to Congress the power to establish copyrights. Copyright therefore stands in contrast to traditional property in that the legislature has complete discretion whether to grant the right or not. . . [Further the] copyright clause allows Congress to establish copyrights for 'limited times' only. This means that unlike traditional property, copyrights must cease to belong to their owners at a certain point.”

“The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings . . . but upon the ground that the welfare of the public will be served. . . . Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given. . . .” (H.R. Rep. No. 60- 2222, at 7 (1909))

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I have always believed that being a public servant means that I have an obligation to the citizens to be an agent of change within the system by reforming it on a daily basis. Simply being part of a dysfunctional system without advocating for new, innovative, common-sense solutions makes you part of the problem. And as a professional staff member with the House Republican Study Committee (RSC), I was told to push the envelope developing new conservative policy solutions. Specifically we were told to look to ideas that may have been discussed or written about by conservative organizations – copyright reform was one such idea.I've always been interested in technology issues, having built my own computers and dabbled in web programming. So I was particularly interested in how the internet and technology in general has changed the way that we view copyright law. Technology has enabled a large amount of piracy, but also a large amount of new technologies that have forced us to revise how we interpret copyright. Buffering or temporary copies of works could technically be copyright violations but courts have interpreted them not to be. A good example of this is with Google's image search function where it provides small version of images across the web – some of which are copyrighted – precedent has had to adjust to largely allow that as fair use (Perfect 10 v. Google). As conservatives, we are generally disposed against court intervention which is commonly critiqued as judicial activism, but to avoid that sometimes the best solution is for the law to keep up with the technology.So being familiar with technology I found this a fascinating area of law where our current regulatory structure was ineffective and counter-productive. I've always been interested in fighting for disruptive innovation which I believe is critical for economic growth, and I think in copyright in particular we have codified a system that makes a lot of innovative market models impossible or prohibitively difficult. To me this was a clear example of favoring free markets over a government imposed regulatory structure designed to support one particular industry.I believe that we need creative destruction of failed ideas and a thriving competition of promising new ideas. So I believe that copyright is a perfect place to start this creative destructive by reforming a defunct and counter-productive legal structure with a sensible policy that fosters innovation.Yes I think SOPA was a watershed moment. Now, whether reaching them will manifest itself in substantive action is a different question. Also I worry that some may think that SOPA meant merely that that law was bad, rather than this law is really bad and there are technology issues/regulatory schemes such as copyright law or patent law that should be fixed.The brief was written for a conservative audience. I'm familiar with other arguments on the left, but that wasn't the focus of the memo, and I think the arguments are stronger on the right.Conservatives are big believers in Constitutional fidelity, support a limited federal government in size and scope, and are generally skeptical of regulatory structures, particularly when they are written by a particular industry or interest group.So I think the issue is well suited for conservatives to take on – and many conservative organizations and conservative legal scholars have come out in favor of copyright reform as a result. The support that the brief on copyright reform generated within the conservative movement indicates that copyright reform is an issue waiting to be brought to the surface.There is a conservative consensus that our copyright law is ineffective. We can quibble on how to fix it, and that's important, but some of the parameters of the problem are very apparent to almost all conservatives with familiarity on the subject.I think you can argue that other technology issues are even more important, such as patent reform. But copyright issues have a significant impact upon our economy. We may never know the innovation that our current system is stifling, but in the example given on the DJ/Remix industry, that presents one, albeit relatively small, industry where significant commerce opportunities exists as well as export opportunities.Copyright law is a very blunt instrument, it's effectively granting a government-imposed and subsidized monopoly over creation of content and most derivative works for over 100 years, so we have to be very careful in how these laws are crafted. Because it is currently crafted so poorly, it can create large negative consequences to the economy and for free speech.From President Obama to the Tea Party, we have seen that an energized and engaged citizenry can elect candidates in grassroots movements. And we have seen that they can stop legislation in its tracks. As the one year anniversary of the SOPA legislation approaches, I have optimism that there is potential for major change on copyright. Members' sudden, vocal opposition of legislation that they were co-sponsoring was nothing short of a watershed moment.That show of force during SOPA was impressive. But actually getting legislation on the table for consideration requires another level of activism.A similar coalition can develop and mobilize in favor of a sound copyright structure that provides large incentives to content producers while allowing new and innovative industries to thrive and allowing all content to eventually enter the public domain (upon the expiration of the copyright term) – thereby allowing anyone to learn from great works of literature or build upon scientific inquiry while still preserving large incentives to content producers.A digital generation is ready to change politics and policies, and they will succeed. It may take some time, but they will do this by rallying behind new ideas, coalescing around legislation, and leading a campaign for passage. Alternatively, there are several battles where this coalition can stop bad intellectual property bills already in the pipeline.It is up to us, the public, to be engaged. If we are not satisfied with our policy makers and the policies that they enact . . . we can actually change the policies by challenging our policy-makers.Good question. SOPA is a perfect example of an answer. A concerted movement by a large number of people can have a significant effect. But also the conventional processes of Washington should have more players in the room and at the table arguing in favor of sensible policies on technology issues.I was surprised to see how many conservative organization supported copyright reform, and I was gladdened to see a substantive discussion on some of the issues. The memo was not meant to be the final answer, but rather to put a series of ideas on the table.At the RSC we weren't allowed to peer review our work, so I was hoping to receive substantive feedback from outside groups after the report went out before we could try to get it into legislation. And then once written in legislative text, we would then work with a Member of Congress to introduce it – which may involve further refinement to the text. Then there is the committee and hearing process. So it was really intended to be the opening legislative salvo on this topic for internal discussion within Congress rather than a final professional report for the general public. But that being said, I'm very happy that average people have been able to read, debate and discuss these issues nonetheless.Inside Congress, I received comments from a number of staffers whose bosses were interested in this idea, and a few who even reached out asking for ideas on patent reform.No comment.I was obviously very aware of the Berne Convention aspects. This doesn't bother me one bit. The paper was supposed to be short, simple and accessible (no footnotes). There were many technical details and sourcing that were purposefully not put in because the point was to discuss the issues within Congress – and of course in conversations after the report (as to discussing actual legislation) we would discuss the Berne Convention aspect. I fully planned upon a long term process involving Berne including an entire hearing dedicated to the Berne Convention elements.The Constitution says that Congress can establish copyright terms for a limited period of time. Codifying the definition of "limited" within an international treaty was extremely controversial at the time. If we agree that the best system for incentivizing content creation is different than the Berne Convention, then we have three choices: 1) we can reform the Berne Convention, 2) stay within the minimal requirements of the Berne Convention, or 3) leave the Berne Convention. Under the Constitution, copyright law is a domestic policy that should be decided in this manner.The paper specifically said that intellectual property's purpose, under the Constitution, is different from that of other property rights. I've closely followed the debate on this issue, but the evidence is quite convincing that copyright is different from traditional property, and that's the dominant conservative position – but even if it's not – the Constitution provides one specific purpose for this right.There are different types of property and property rights. They are not all the same. Tom W. Bell, Professor at Chapman University School of Law, would remove the entire word "intellectual property" and use the term "intellectual privilege." It's an interesting idea, not that I am fully endorsing it, and you can read about it in Jerry Brito's compilationBut traditional understandings of property were very different from that of including copyright. Copyright may have some or even many of the same features of conventional property – but that doesn't mean that the purpose is the same.Copyright is different from property in the traditional sense. John Locke is sometimes sourced and used to justify copyright being property. But in his Second Treatise Locke declines to give anything of that nature among his illustrations. And he described the copyright of his time (the Licensing Act maintained by the Stationers' Company) as a "manifest . . . invasion of the trade, liberty, and property of the subject."As Tom W. Bell explains, "Copyright has property-like features, granted; copyrighted works can be registered, bought and sold, licensed, donated, mortgaged or abandoned." But unlike other property it exists through statute which can change with lawmakers' decisions, and unlike other forms of property it must expire after a specified time.Jerry Brito, Senior Research Fellow at the Mercatus Center at George Mason University, also takes a crack at this:This is a position that Congress has even weighed in on previously:There are a lot of weeds to get through on this, but the important point under the paper is that copyright is constitutionally limited and constitutionally for a specific purpose.Patent law is absolutely critical. Today's patent law is an invasive regulatory scheme that appears almost designed to stop many forms of innovation. American growth has been fueled by innovation, and until we get this right, we are going to be at a major disadvantage. To be clear, I completely support patents and they are absolutely critical to many industries, but we have a large number of patents on non-novel ideas such as a patent on rounded rectangle devices. Patent law may need to be adjusted differently for different industries. The point is to create sufficient incentive to create new content, rather than to patent non-innovative discoveries to limit your potential market rivals. The recent New York Times article The Patent. Used as a Sword , though it has its critics, provides an interesting perspective of some of the vast problems.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).Spectrum is discussed and obviously important. We are witnessing an explosion in use of our mobile devices which will be a major market opportunity for app developers but also a major challenge to fulfill the spectrum needs.Cybersecurity will continue to be a massive issue taking up a lot of political oxygen on technology issues. Since I've been on Capitol Hill there has been an attempt at solid cybersecurity legislation and last year the House passed Chairman Roger's CISPA legislation (which I provided a lengthy analysis on for the RSC -- it is mainly information sharing) and also a few other cyber-related bills, but the Senate didn't pass that legislation and had its own approaches. So that will be one of the first issues up for discussion in the 113th Congress – particularly with the expected Executive Order from the administration. I have done a lot of work in the cyber arena, and have a paper on how cyber-war affects the War Powers Resolution, which I'm trying to publish now, so this is an area that I'm closely following.I think there are many privacy issues as well. A large portion of people's lives are shifting to the cloud, yet our laws don't seem to reflect that yet – Sen. Paul's amendment to FISA was one such attempt to try to deal with the problem of third party records.In the recent US v. Jones case, where a warrantless GPS device was used for a number of weeks, it presented a stunning example of the privacy implications of current technology (as was discussed primarily in the concurring opinion). Luckily, the prospect of the FBI tracking all of our cars by GPS devices under our car is highly improbable – if nothing else from a resources perspective – but it's not difficult to imagine a near future world where traffic cameras, aerial vehicles, or even satellites with sophisticated software could analyze and database where our cars have been every single day at every minute – all without a warrant. This may or may not be a Fourth Amendment search/seizure, but it certainly can be addressed through legislative action as was done with ECPA in an earlier time.Another case, Florida v. Jardines, presents a situation where an officer used a sniffing dog outside their door without a warrant and whether or not that is a search. The court has previously held that you have no privacy expectation to contraband, and held that the dog sniff is not a search for this reason (as it only reveals contraband, even though the evidence is more murky). If a dog sniff is not a search when performed at the house because it only reveals contraband, why would not a device that takes air samples and only reveals the existence of contraband (eg., drugs)? Kyllo deals with some of the issues of new technology, but doesn't seem to come to a good explanation of why one would be prohibited and in that case part of the holding appeared to hinge on the fact that other non-contraband information was revealed that we have a privacy interest in. Under the government's argument in Jardines, police could use dogs to sniff each and every person's house to look for contraband, and by implication they may be able to use a technological device to do the same thing, assuming it doesn't run afoul of Kyllo.So new technology will create a large number of new privacy issues and it's incumbent upon Congress to stay on top of these trends and ensure that our laws are up to date and protect our privacy interests while not creating onerous requirements upon the private sector.But there are many other technology issues that people don't normally think of as technology issues. I'm interested in government transparency because the internet should make government information accessible to everyone. As a simple example, all FOIA'd documents should be available online. Eventually all government documents (with perhaps a few narrow exceptions) should automatically go online without requiring the FOIA process. Cato did an analysis on government transparency and the federal government basically failed across the board – Congress in particular. Congressional Committees generally do a poor job of providing accessible information on their hearings, navigating the world of law-making is often difficult for people outside of Capitol Hill because it's still not fully accessible online. Jim Harper of Cato has done good work on trying to make legislation "machine-readable" so that it can be searched and cross-referenced – these are positive developments. But most government websites can do a better job as well.In addition, technology has created new market models and disruptive innovation that sometimes rubs against current regulatory structures designed to protect current market players. Uber is a particularly stunning example of this situation, and I think it's critically important that new market models like theirs are allowed to thrive. James Allworth wrote an interesting article on some of these types of issues for the Harvard Business Review. So I think that even these examples are "technology issues" in some sense.I am doing a lot of writing for January. My piece for Cato Unbound should be out by now on copyright issues that will have a number of interesting voices on the topic. I have a chapter in an upcoming book, and will be a regular online contributor in several major outlets such as the National Review, Forbes and Bloomberg View.I have also formed a 501c4 organization to continue to work on many issues of reform, particularly in the technology arena, that I'm interested in.And I hope to help with Fixcopyright.com and some of the activism on the #fixcopyright movement. I hope others will join us and continue to debate and discuss these major issues.My goal is to work within the system and outside the system to help reform the system – and I have every intention of working even harder towards accomplishing this goal.If people want to get involved or have other ideas feel free to reach out to me at @Dkhanna11

Filed Under: copyright, copyright reform, derek khanna