Erich Fromm once said “Man always dies before he is fully born.” Derek Khanna is not dead.
Well, not literally.
Act 1: Delight
For the glory of Summer we are punished with Fall. So it was that on November 16th, 2012 the Republican Study Committee offered a bold proposal to reform America’s ridiculous copyright system titled Three Myths About Copyright Law and Where To Fix It. The contact and alleged driving force behind the document was Derek Khanna a staffer at the RSC.
The policy brief was nothing short of a full frontal double barreled blast at Copyright Trolls (also known as the entertainment industry). Three myths were listed in report:
1. The purpose of copyright is to compensate the creator of the content:
It’s a common misperception that the Constitution enables our current legal regime of copyright protection – in fact, it does not.
2. Copyright is free market capitalism at work:
Copyright violates nearly every tenet of laissez faire capitalism. Under the current system of copyright, producers of content are entitled to a guaranteed, government instituted, government subsidized content-monopoly.
3. The current copyright legal regime leads to the greatest innovation and productivity… excessive copyright protection leads to what economists call “rent seeking” which is effectively non-productive behavior that sucks economic productivity and potential from the overall economy.
I am sure every Hollywood operative channeled their inner Les Grossman when they read those statements – but just wait for the conclusion:
Conclusion: To be clear, there is a legitimate purpose to copyright (and for that matter patents). Copyright ensures that there is sufficient incentive for content producers to develop content, but there is a steep cost to our unusually long copyright period that Congress has now created. Our Founding Fathers wrote the Constitution with explicit instructions on this matter for a limited copyright – not an indefinite monopoly. We must strike this careful Goldilocks-like balance for the consumer and other businesses versus the content producers.
It is difficult to argue that the life of the author plus 70 years is an appropriate copyright term for this purpose – what possible new incentive was given to the content producer for content protection for a term of life plus 70 years vs. a term of life plus 50 years?
Where we have reached a point of such diminishing returns we must be especially aware of the known and predictable impact upon the greater market that these policies have held, and we are left to wonder on the impact that we will never know until we restore a constitutional copyright system.
Current copyright law does not merely distort some markets – rather it destroys entire markets.
It was a brave stand. Not brave in the way most people use that term – for firefighters and children with cancer – but “brave” in the political context aka a serious miscalculation you can only hope people will never mention again if you somehow survive the fallout.
So it was considered a brave policy brief to publish in Washington.
Act 2: Comfort
However the Republican Study Committee policy brief was a hit, with all the wrong people.
While there had always been a vaguely defined community of people that supported “internet freedom” it was not until the introduction of the Stop Online Piracy Act (SOPA) that a politically coherent and surprisingly robust coalition arose that was strong enough to shutdown congressional legislation. The coalition was both too large to ignore (Google) and too small to target for destruction (social media users). In other words a waking nightmare for Hollywood’s lobbyists in Washington whose standard playbook of fear and greed was useless – too many to bribe or terrorize into compliance.
SOPA crashed and burned sending a smoke signal to all the Copyright Trolls skulking around Washington – back off. So back into the darkness they went to lick their wounds and bide their time.
The Anti-SOPA coalition, or at least what remained of it, jumped on the RSC policy brief. It was heralded as a sane reform agenda by the tech press. Believing it was a genuine party line shift some even moved on to question the political motives of the brief.
But within a mere 24 hours later… Poof! The Republican Study Committee’s Policy Brief was gone, citing inadequate review before publication despite the briefing being released and promoted through normal channels.
The tech press was skeptical:
The idea that this was published “without adequate review” is silly. Stuff doesn’t just randomly appear on the RSC website. Anything being posted there has gone through the same full review process. What happened, instead, was that the entertainment industry’s lobbyists went crazy, and some in the GOP folded.
Ars Technica spoke with some insiders who provided more background:
“The RSC issues a lot of memos,” a source with knowledge of the RSC’s operations told Ars. “They’re a small shop” with a lot of issues on their plate. Our source didn’t think the memo reflected a sea change in the views of Republican members of Congress. But he said the fact Khanna was able to get his memo through the RSC’s vetting process suggested there was sympathy for his views at least within the RSC staff.
The source told us content industry lobbyists exerted pressure on RSC leadership to repudiate the memo.
But unlike most of recorded history, farce would precede tragedy.
Act 3: Joy
We are a merry crowd which is, by chance, on a desert island:
The Republican Study Committee, a caucus of Republicans in the House of Representatives, has told staffer Derek Khanna that he will be out of a job when Congress re-convenes in January. The incoming chairman of the RSC, Steve Scalise (R-LA) was approached by several Republican members of Congress who were upset about a memo Khanna wrote advocating reform of copyright law. They asked that Khanna not be retained, and Scalise agreed to their request.
Contrary to some of the initial political analysis about Republicans wanting to screw the entertainment industry because they are not a donor group, certain Republican Congressional members do imbibe:
This paper upset some powerful interests. By Saturday afternoon, the RSC had pulled the memo from its website and officially retracted it. The reason, according to two Republicans within the RSC: angry objections from Rep. Marsha Blackburn, whose district abuts Nashville, Tenn. In winning a fifth term earlier in the month, Blackburn received more money from the music industry than any other Republican congressional candidate, according to the Center for Responsive Politics. Blackburn’s office did not return calls seeking comment.
Lobbyists for the music and movie industries also called the RSC to express disapproval, according to Republicans involved.
The staffer who wrote the memo, an ambitious 24-year-old named Derek Khanna, was fired — even before the RSC had decided on other staffing changes for the upcoming Congress. The copyright memo was a main reason.
Ah, a sad refrain. Another idealistic young man becomes beltway roadkill. Ideas alone are poor armor from special interest bazookas. And yet, does not a sound doth come forth from the chorus? Reverberations of defiance stir the air. Hearken to Twitter!
And you will notice the time stamp December 7th, this is after Mr. Khanna and the rest of the world knew he would be getting the boot.
Ironically it is through the very medium that assisted the defeat of SOPA, social media, that Derek Khanna has maintained his resistance to excessive copyright laws. A platform the entertainment industry can not, at the moment, pressure into submission like the Republican Study Committee.
As this part of the story ends – the initial frustration of reform within the Republican Party – let us not forget that the saga of copyright reform is far from over. The trolls surely overreached with SOPA and are still reeling from the backlash. But as Mr. Khanna learned the hard way, wounded doesn’t mean dead. They still have considerable power in Washington and considerable expertise at destroying their enemies – real or perceived.
The larger opera is unfinished…
(Mozart has been dead longer than 70 years)