But so far, no Republican members of Congress have endorsed Khanna’s memo or the policy ideas he put forward. Khanna said he’s optimistic that will happen in the coming months. “Creating policy is sometimes a slow process,” Khanna told us. (And Congress certainly had a lot on its plate over the last two months.) Khanna argued that with a new Congress beginning it was “time for an enterprising member to take up [copyright reform] in a fashion that he feels is appropriate and run with it.”
Khanna believes there’s a broad constituency for copyright reform. He has fond memories of the January 2012 Internet protests against the Stop Online Piracy Act and the Protect IP Act. At the time, he was on the staff of Sen. Scott Brown (R-MA). Brown was one of sixteen Republican Senators who announced their opposition to PIPA on the day of the historic protests against the legislation.
“The feedback was absolutely deafening,” Khanna said of e-mails and phone calls from constituents opposing the legislation. “It was unlike anything I had ever seen, and most congressional staffers I worked with had seen.” He said that to this day, members of Congress ask “is this the next SOPA?” when considering Internet-related legislation.
Both Khanna and Lee have essays in the latest edition of Cato Unbound. Khanna’s concerns prospects for free-market copyright reforms going forward. It’s a good essay, though he makes a couple shaky claims, among them this one:
People are beginning to question why our copyright system is so dysfunctional and counterproductive. In 2018, Steamboat Willie is finally supposed to enter the public domain. There will be a major legislative push to re-extend copyright to life plus 90 years to protect it (making copyright, in effect, perpetual). There is already mounting criticism of our current copyright terms of life plus 70 years, which, with the prospect of effectively indefinite extensions, seems to be in direct violation of the Constitution’s requirement of a limited time for securing copyright. 2018 should be the year that copyright is no longer perpetually extended.
The first statement is undoubtedly true, but I have a hard time believing another term limit extension is coming down the pike. For one thing, the days of copyright legislation like the CTEA being shoehorned through Congress without the general public’s knowledge are over. For another, there doesn’t seem to be the legislative will; lawmakers are still “shell-shocked” after SOPA. Also, none of the copyright advocates I’ve spoken with are at all interested in the idea. Sandra Aistars, executive director of the Copyright Alliance, called the whole term limits debate a “red herring” in a digital environment in which “the length of your copyright exclusivity is measured in hours or days after you publish on line.” For them, the bugaboo remains piracy.
Under the flimsy legal fiction that the property, rather than its owner, is on trial, civil asset forfeiture allows the government to take property without convicting, or even necessarily accusing, its owner of any crime. The practice raises many of the same due process issues in copyright cases as it does in drug cases—and some unique ones as well. Consider the case of dajaz1.com, a hip hop blog seized by the federal government in December 2010. The federal government claimed that the site hosted pirated music. But the site’s proprietor, Andrew Nasib, told the New York Times that “artists and record companies had sent him the songs for promotional purposes.”
After negotiations with the government proved fruitless, Nasib retained a lawyer and sued for the return of his domain name. The government dragged its feet for months as it sought more information from the recording industry. Eventually, the government returned the domains without explanation or apology in December 2011. Nasib himself was never charged with copyright infringement.
I also spoke with Khanna for a story that will appear in TAC’s next issue on the growing fissures within the GOP and the conservative movement over copyright. But you’ll just have to stay tuned for that.