FALLOUT FROM THE COPYFICHT
DEREK KHANNA
Derek Khanna (@derekkhanna) was a professional staff member for the House Republican Study Committee (RSC), a caucus of over 165 conservative Members of Congress, until January 3, 2013. He was the author of the RSC’s report advocating copyright reform—a memo which was widely endorsed by conservative organizations and technology blogs but which was removed from the RSC’s website within 24 hours. Previously, Derek worked for Senator Scott Brown and was involved in Governor Romney’s 2008 and 2012 campaign. Additionally, he has served as a consultant for the DoD’s Defense Science Board on Cloud Security.
Working on Capitol Hill during SOPA was humbling. For weeks, many of the more technology-savvy staffers had seen the storm clouds of opposition to SOPA building, but we had no idea how massive or sudden the surge would be. As the opposition organized, eventually going viral, voters crashed Congressional circuit boards and websites, tweeting and Facebooking at representatives and senators in record numbers. For many this was an abrupt reminder of what democracy really is.
Many of us were strongly against this Internet censorship from the beginning, working behind the scenes to try to get our bosses on what we saw as the right side of the issue. Many were brushed aside. But on January 18th, the effect of the movement was deafening. Most of us had never seen anything like this before—such a significant change in momentum in only 24 hours.
Members’ sudden, vocal opposition of legislation that they were co-sponsoring was nothing short of a watershed moment—but I would argue that it was proof of concept of something even bigger.
SOPA proved that a united movement can stop legislation that is expected to pass despite overwhelming odds, special interests cronies, and the support of powerful politicians.
Before SOPA it seemed like few staffers or Members had much interest in technology-related legislation. After SOPA, staffers and Members have asked me several times in regard to technology legislation: “Is this SOPA?”
Members of Congress are particularly sensitive to interests from their constituents as expressed through letters, emails, and phone calls to their office. This is why a united and coordinated movement can be so successful in stopping legislation. But this activist movement cannot rest after stopping one bad piece of legislation. Instead, we must take the next step—which is actually passing good legislation.
I am confident that we are on the cusp of such online activism. The digital generation is ready to change politics and policies, and we will succeed. We will do this by rallying behind new ideas, coalescing around legislation, and championing a campaign for passage.
As a Professional Staff Member with the House Republican Study Committee, I was told to push the envelope by developing new policy solutions. 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.
On this quest, it had become clear to me that our current copyright regime was written by special interests, to serve and protect their agendas, and does not reflect sensible policy. This perspective is shared by a number of Democrats and Republicans alike.
The current body of copyright law is a regulatory scheme that benefits one industry above the broader economy, particularly over disruptive industries and new market models. In October we reached out, as we did every month, to Members and staff with potential bill ideas. I included copyright reform—lowering the time period for protected works—as a legislative idea looking for a home.
The idea received no response. I decided to fully flesh out what copyright reform would look like, starting with specific problems with the current copyright system and how we could start to “fix” it.
In order to develop sound policy, you must first agree to certain principles that undergird what you are looking to do, and I did that by debunking the three foremost myths that I believe have justified our current system of indefinite copyright and the destruction of any future public domain:
The purpose of copyright is primarily to compensate the creator of the content.
Copyright is free market capitalism at work.
The current copyright legal regime leads to the greatest innovation and productivity.
These points require critical examination because they address how we approach the issue of copyright. I wanted to take on this issue in a manner that would appeal to a transpartisan audience of libertarians, conservatives, and liberals alike.
In speaking to the first myth, the Constitution provides a clear justification for good copyright law, which I believe is a perfect place to start. We don’t take the extraordinary step of granting these effective monopolies to just to be nice. Rather, we endeavor “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.”
Belief in the second myth is widely held and actively promoted by copyright holders. But it is of course the case that our copyright system is actually government imposed—rather than something organic to the free market. Once it’s established that it’s a form of regulation, it provides us with the question of whether this regulation is most effective.
To dispel the third myth is to challenge the notion that our system of copyright strikes the optimal balance of providing sufficient incentive to content producers without discouraging or eliminating new markets—what I call the Goldilocks test. This last point is critical because most people don’t know that our current copyright term is so long compared to that of our Founders:
Original Copyright Law: 14 years, plus 14 year renewal if author is alive.
Current Copyright Law: Life of author plus 70 years, and for corporate authors 120 years after creation or 95 years after publication.
I demonstrated that our system is suboptimal at best, and significantly counterproductive at worst. Most complicated, I was essentially trying to prove a negative by explaining that if our current copyright system were different, then we would have new industries that do not currently exist. I argued:
“Today’s legal regime of copyright law is seen by many as a form of corporate welfare that hurts innovation and hurts the consumer. It is a system that picks winners and losers, and the losers are new industries that could generate new wealth and added value. We frankly may have no idea how it actually hurts innovation, because we don’t know what isn’t able to be produced as a result of our current system.”
Our copyright paradigm has:
Retarded the creation of a robust DJ/Remix industry.
Hampered scientific inquiry.
Stifled the creation of a public library.
Discouraged added-value industries.
Penalized legitimate journalism and oversight.
Some of these examples, such as the DJ/Remix industry, have been ridiculed as being silly or irrelevant. But they are no laughing matter to an aspiring DJ who would like to make mix-tapes without being sued, or to their throngs of fans, or the employees of the venues in every major city in America in which they play.
I then identified four potential solutions to address these problems. I am not arguing that the paper presented an exhaustive list of the problems with copyright or a thorough list of potential solutions—rather, I wanted to start a conversation among Members and staffs on this important issue. Scholarly work on the subject goes into greater detail (Jerry Brito’s new book is a good place to start) and there is always a give-and-take process behind the development of seaworthy legislation—but overall I thought these ideas were a good place to start the conversation in a package that was understandable for Congressional staffers.
I felt it was appropriate for the Republican Study Committee to put out the paper because a number of conservative/libertarian groups were in favor of copyright reform and a
few of our Members were as well—I believed that more of our Members would be supportive once they knew more about the issue.
This policy brief was fully vetted and approved through the normal process within our office and was revised accordingly. All edits were incorporated, and at 3:30 p.m. on Friday I was given the green light to submit this to our staff and Members. At that time I took my phone off the hook, grabbed my gym bag and said, “I hope I see you guys on Monday” and I pushed send and headed to the gym.
Controversy in itself should not be a reason to avoid doing the right thing—but it should be the type of thing that you walk into with eyes wide open. I was not ignorant as to what this would mean—in fact I was hoping for it to start a major debate between all concerned parties. A big mistake in politics is to avoid controversial topics until it’s too late and then try to get Washington to turn on a dime—but in my experience that simply doesn’t work. It takes time to develop the underlying impetus for major changes in policy, and I hope that this memo started or furthered a longer term conversation and put copyright reform on the table with a host of other issues.
After the memo went out, the strangest thing happened—tech blogs spoke in favor of copyright reform but also various conservative groups chimed in to support it as well. Essentially every major conservative or libertarian group on record has come out in favor of copyright reform—and there are several others that have told me privately that they too support these types of reforms.
When our office received push-back, the decision was made, against my protests, to pull the memo online but not to officially retract or disavow it. In the process, via the so-called Streisand Effect—the singer tried to have photos of her mansion pulled from the web, her request angered free speech activists, which led to the photos spreading far more virally than if she’d kept her mouth shut—the memo only became a bigger sensation. During this time I was approached by a number of staffers who told me that their bosses supported copyright reform and a few even talked about patent reform. That inclination is bubbling under the surface of the Republican Party, and it has allies on the left that could form a coalition to have substantive reform in this area.
I wasn’t surprised when some of the Members who were displeased with the copyright memo approached our incoming chairman and asked that I not be retained. But the unfortunate message that sends to other Congressional staffers, young people or anyone with an earnest desire to initiate productive policy changes is not to rock the boat.
It’s a message that effectively communicates that we don’t need and don’t want new ideas. Unfortunately, if the system is allowed to continue to function the way it currently does and has in this case, processes that discourage policy innovation will kill many of these promising new ideas.
To all incoming Hill staffers: I ask that you never lose this passion to try to fix the system and that you never lose the courage to put new ideas forward. Despite losing my job, and despite going through quite a lot personally in the couple of months since publication, I do not regret writing this memo. If this marks the end of my career in public service, it will be an incident that I can look back on and remember—I was part of the solution. I had an idea and I put it on the table. I was part of opening a much-needed dialogue on this issue.
In the end, actually passing common-sense, pro-innovation legislation on technology issues will take a movement that re-engages and even expands the SOPA coalition. In my two months since leaving Capitol Hill, I have started by spearheading activism on cellphone unlocking, which I believe is a critical first post-SOPA battle for technology reform. We have succeeded with a White House petition reaching one hundred fourteen thousand signatures, resulting in the White House endorsing an FCC investigation and four bills in Congress. These small victories demonstrate that the anti-SOPA coalition can result in positive victories going forward. If the digital generation enacts its own legislation going forward, the effect will be even more profound than was the victory against SOPA.
THE SEIZURE OF DAJAZ1
JOSHUA BAUCHNER
A notable black mark on the Obama administration’s record on Internet matters is the series of several hundred domain name seizures it has undertaken. With very limited due process, law enforcement agencies have seized United States-registered domain names of sites that are accused of facilitating substantial intellectual property infringement.
Targeted sites have included ones that engage in what had previously been understood to be protected activities, such as the indexing of links to other sites, or the embedding of video streams that are hosted elsewhere on the Internet. In some cases, proprietors thereof have even been confronted with prosecution for criminal copyright infringement. Law enforcement claims that it was granted these powers by the 2008 PRO-IP Act.
Operation In Our Sites … is the first coordinated effort by the U.S. government to go after Web sites that are engaged in substantial amounts of criminally infringing activity. In the United States our legal system incorporates fundamental principles of due process and free speech, and those policy principles are extremely important to this administration. So Operation In Our Sites, and the manner in which it’s being carried out, has safeguards to protect to those policy principles. And I think that having increased law enforcement that is consistent with those values is what the United States should be doing, and I think that can and will be a good example to other countries as they are assessing how to fight online infringement.
—Victoria A. Espinel, U.S. copyright czar, Media Decoder blog,
New York Times, June 8, 2011
At the time of the New York Times’ June 2011 interview with Victoria A. Espinel, the U.S. attorneys André Birotte, Robert E. Dugdale, and Steven R. Welk were readying an application to extend the deadline for filing a civil forfeiture complaint against Dajaz1.com. Prosecutors had already received on extension in May and would receive two more; the domain was returned with no complaint ever filed and no explanation for the delays in December 2011. Until April 2012, all interactions between the government and the court regarding Dajaz1, including the applications for extensions, remained sealed—even from Dajaz1’s owner and lawyer.
When the documents were released—only after the court was petitioned by Wired, the Electronic Frontier Foundation, and the First Amendment Coalition—it was revealed that the prosecutors had been waiting for “rights holders” and the RIAA to respond to questions and requests from the investigating agencies for more information.
Moreover, the prosecution alleged that criminal copyright infringement had occurred. In pursuing the investigation of this supposed infringement—which seemed to hinge on information from third parties—the government refused Dajaz1 due process and censored the site. Only to hear nothing from rights holders and the RIAA—except an admission that in fact all of the supposedly infringing material had been provided by artists or labels themselves!
The domain Dajaz1.com had been seized, along with eighty-one others, over a period of days around November 29, 2010, as part of “phase two” of Operation in Our Sites. The operation, an ongoing effort helmed by the National Intellectual Property Rights Coordination Center (IPR Center) and Homeland Security Investigations (HSI), both parts of the Immigrations and Customs Enforcement (ICE) division of Homeland Security, began in June 2010. Then, the agencies seized the domains of ten sites purportedly related to the piracy of movies, including TVShack.net and NinjaVideo.net. Lauded by representatives of the MPAA, the Directors’ Guild of America, and the International Alliance of Theatrical Stage Employees, the seizure took place after agents “observed links to more than two hundred movies and more than three hundred television programs” and “downloaded various newly released movies from the Web sites and their affiliates,” according to the IPR Center press release.
Phase two of Operation in Our Sites—alternately called Operation in Our Sites v. 2.0—was billed by the IPR Center as a “Cyber Monday crackdown” on “online retailers of a diverse array of co
unterfeit goods, including sports equipment, shoes, handbags, athletic apparel and sunglasses as well as illegal copies of copyrighted DVD boxed sets, music and software.” The press release made no mention of Dajaz1.com or the four other music-related sites whose domains were also seized: OnSmash.com, RapGodfathers.com, Rmx4u.com, and Torrent-Finder.com. Anyone seeking any of these sites the day after the Thanksgiving holiday found a stock splash page, peppered with the logos of various involved federal agencies, reading, “This domain name has been seized by ICE-Homeland Security Investigations, pursuant to a seizure warrant issued by a United States District Court under the authority of 18 U.S.C. §§ 981 and 2323.” Each logo featured a fearsome screaming (or at least soaring) eagle—with outstretched talons, poised to perhaps seize the site’s domain. The word Seized, in a garish orange, repeated diagonally across the clashing red backdrop.
No warning was made to site operators in advance of the seizure. Beyond the IPR Center press release, the government offered very little public comment on the seizures. The application and affidavit for a seizure warrant and the seizure warrant itself, with the specific charges levied against the sites, were not released for several more weeks. Notably, the five music-related sites were the first with domains seized by ICE that were more than just link and ad dumps. This was especially true of Dajaz1, Rap Godfathers, and On Smash, all of which were prominent and vital parts of the online rap community. Serving as a sort of amalgamation of radio station, MTV, fanzine, label liaison, PR, record shop, and local bar frequented by rap fans, each site hosted video and song premieres, broke news related to both niche and popular acts, and provided open message boards and chat rooms for fans and artists.
Hacking Politics: How Geeks, Progressives, the Tea Party, Gamers, Anarchists, and Suits Teamed Up to Defeat SOPA and Save the Internet Page 35