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Crony Copyright

Will Republicans embrace intellectual property reform?
Crony Copyright

On Nov. 16, the Republican Study Committee sent out an internal brief to its more than 170 members and their staff. The memo was a blistering indictment of copyright law.

“Copyright violates nearly every tenet of laissez-faire capitalism,” the paper declared, and its irresponsible expansion “destroys entire markets.” Polemical arguments, to be sure, but not altogether new ones: a substantial body of literature, mostly from academics on the left—but increasingly on the right as well—argues that the lengthening terms and harsher enforcement of copyright over the last 30 years has taken us from a system that incentivizes innovation to one that stifles it. What was unprecedented here was less what the memo said than where it came from: the conservative caucus of the House of Representatives.

Though taking up copyright reform could be a savvy move for the GOP—it’s popular with young people and the issue divides Democratic money in Silicon Valley and Hollywood—the memo ultimately didn’t portend any such thing. Indeed, within 24 hours of being released, the document had been retracted, and less than a month later its author, 24-year-old RSC staffer Derek Khanna, had been fired.

Yet the paper was praised by National Review’s Reihan Salam and influential Republican strategist and tech guru Patrick Ruffini, among many others. Khanna earned himself a New York Times mention by David Brooks as a “rising star” who bucked his party’s typical “lobbyist-driven position” on copyright.

So the memo’s public reception wasn’t what caused the RSC to balk. Rather individual members of the RSC took the unusual step of putting pressure on the organization to get rid of Khanna. In particular, Rep. Marsha Blackburn of Tennessee, a Republican representing the outskirts of Nashville, home of the country-music industry, was said to be upset by Khanna’s continued employment. Blackburn’s chief of staff is a former RIAA lobbyist.

The behind-the-curtain machinations aimed at stifling conservative debate over copyright mimic copyright policymaking more generally. Major intellectual property legislation over the past 30 years has aimed to shore up industries challenged by new digital modes of distribution—and piracy—rather than trying to balance consumers’ interests with the needs of innovators.

Khanna sat down with TAC for his first on-the-record interview since being fired to give his take on the situation and discuss where conservative IP-reform efforts might be headed. Though he’s out of a job, Khanna has given reformers on the right a martyr and has rallied support from legal scholars, journalists, and blogs on the tech left as well. And now that he can speak freely, he doesn’t intend to back down: about a week after our meeting he was headed to the Consumer Electronics Show in Las Vegas to proclaim the gospel of IP reform.

Like other pro-reform conservatives, Khanna sees the surprise mutiny against the Stop Online Piracy Act (SOPA) in early 2012 as a pivotal moment when elements in the GOP turned against copyright regulation. But killing bills is a far cry from advancing a step-by-step legislative agenda to roll back decades of copyright inflation.

“Opposition is relatively easy. Obviously it’s difficult to take on the interests that were taken on during SOPA, but it’s relatively easy,” says Khanna. “The big question is whether that movement can be rejiggered to push something positive forward. That’s a much more complicated lift, but I think the answer is yes, because there’s a lot of consensus—on the left and on the right—for what positive reforms could look like, and even on some specifics.”

On the circumstances of his firing, Khanna has been careful not to alienate his former employers and declined to comment on the RSC’s claim that his memo was published “without adequate review.” He did say, however, that “it was vetted and approved. It was actually approved by additional channels. It was edited, revised, all of that. The RSC’s characterization does not dispute that.”

Khanna says he was “astounded” by the level of support he received for the paper, “particularly on the right. From conservative and libertarian think tanks, organizations, fellows, across the board, really, the support was well beyond what I was expecting.”

Several congressmen also expressed sympathy for the ideas articulated in the paper. One RSC member is even interested in introducing some of the proposals into legislation, though Khanna declined to name whom.

The paper certainly has its critics, however. Sandra Astairs, executive director of the Copyright Alliance, a trade group, is concerned that it advocates “reform for reform’s sake” and “just doing away with aspects of copyright protection for the sake of reducing copyright protection.”

On the other side are legal minds including Randy Barnett, the libertarian lawyer who constructed the case against Obamacare, and Stewart Baker, assistant secretary for policy in the first Bush-era incarnation of the Department of Homeland Security. Baker called Khanna’s memo “the most head-turning change of direction in decades for either party on intellectual property issues,” and he has been one of the stronger voices calling for the Republican Party to embrace the issue.

“I do think we’re going to see opportunities for the GOP to take up IP reform,” says Baker. “I think that fight is unavoidable for conservatives,” though the timeframe and shape of future controversies is hard to predict. He admits that copyright is a subject that brings some conservative values into conflict with one another, which could be an obstacle to building effective coalitions.

“Conservatives are skeptical of anything that smacks of ‘He’s got property that belongs to all of us, so the state should take it away,’” says Baker. To many on the right, intellectual property is a subset of property in general and is therefore worthy of protection by even the most draconian laws. “The problem with doing that is the social and economic losses that come from stifling creativity and economic and technological changes, plus the transactional costs of using litigation as part of a business model.”

“To my mind, the reason for conservatives to be skeptical of the remarkable rise of copyright enforcement in the last 40 years has to do with the risk of what could be called regulatory capture or crony capitalism.”

Today’s copyright law exhibits a pattern typical of crony capitalism—regulations restrict new entrants and creators (DJs and other remix artists in the music field, for instance) to shore up the market position of current players (record labels). But there are now powerful business interests in favor of weakening copyright as well. Opposition to the Chamber of Commerce’s traditional support for strong IP protection was one reason that companies such as Amazon, eBay, Facebook, and Google broke away to start the Internet Association, a trade group for online companies.

“The real lesson of SOPA is that the tech industry is a well-funded and active special interest just like any other,” cautions Todd Dupler, director of government relations for the Recording Academy, the organization that awards the Grammys. “Critics of copyright love to vilify the RIAA, MPAA, and related media companies, but they conveniently ignore the fact that tech giants like Google are spreading money around to trade associations, think tanks, public interest groups, and academic institutions to help advance their policy goals (such as undermining property rights, reducing individual privacy online, and protecting their own anti-competitive practices),” he said in an email.

“One could take the cynical view that many of these ‘reform proposals’ are just disguised attempts to weaken the rights of individual copyright owners or creative upstarts and to make it more likely that their works will fall into the public domain so that their interests do not have to be dealt with as frequently,” warns Astairs.

IP-reformers on the left, such as Harvard law professor Lawrence Lessig, claim that the new realities of digital content portend an era of “free culture” unfettered by the demands of commerce. Whether or not that’s true, it’s clear that propping up the market position of the content industry through regulation isn’t going to work. Thus the Democratic Party is split between a techie left that’s opposed to the institution of copyright and the massive institutional interests of Hollywood, rife with campaign contributors.

Though copyright has remained mostly off the radar of Tea Party groups and right-wing think tanks—the opposition to SOPA excepted—that could be changing. The Heritage Foundation’s political advocacy spin-off, Heritage Action, has already made two IP votes part of its legislative scorecard, and James Gattuso, a senior fellow at the Heritage Foundation, says he would be “surprised if there are not more this year. Since IP is an increasingly important segment of our economy, and looms larger in policy debates, it’s only natural for these issues to receive more attention.” Heritage appears to be interested in making IP battles a conservative priority.

“These are issues in which there is a conflict between two fundamental principles—protection of property rights and minimal regulation of the marketplace,” says Gattuso, indicating the philosophical disagreements on the right over intellectual property. “Sometimes the rights holders are correct, sometimes the users are, and we try to articulate principles that will help distinguish which is which. I’m also not surprised that conservatives are split. The Left is too. This simply does not break down along clean lines.”

The fact that the copyright debate has taken root within two of the conservative movement’s bastions, Heritage and the RSC—both founded in the 1970s by Paul Weyrich—is evidence of a fundamental shift in the IP conversation. But where the next copyright fight will take place is an open question. Perhaps the IP provisions of the Trans-Pacific Partnership, a free-trade agreement, will ignite controversy—though that seems unlikely because it doesn’t extend copyright in this country beyond its current scope. Perhaps the occasion for the next showdown will be a relatively uncontroversial effort to deal with orphan works—works whose authors have died or otherwise cannot be found—or a bill to require the registration of copyrights, a move the content industry dislikes because of the administrative burden it would impose.

Whatever the next battleground may be, conservatives have an opportunity to put the GOP on the side of positive copyright reform. The Democratic Party certainly won’t take it up, no matter how popular reform may be. And the Burkean principle of adaptation for the sake of preservation is what’s needed in this case. Between the radicalism of free-culture advocates and the authoritarians behind SOPA there is a middle path to be found that would preserve copyright as an institution conducive to innovation while also recognizing that the Internet has fundamentally changed the ways copyright can be administered, and in some respects has limited its effectiveness. If IP proponents continue to push counterproductive legislation like SOPA, the public will become increasingly hostile to copyright. To do nothing is to accept the continued decline of our copyright system and its eventual irrelevance. The only prudent course is some positive program for reform.

Jordan Bloom is associate editor of The American Conservative.



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