Derek Khanna is giving a Berkman talk on trying to connect the dots so that policy-makers “get it.” “How do we even frame discussions about the economy and innovation?” Copyright law hasn’t been re-assessed in at least 15 yrs, he says. He begins with his bakcstory: He’s from Mass. Worked for Romney and Scott Brown. (Derek wrote the copyright reform report for the Republican Study Group.)

Rule 1: “Being right is just part of the battle.” Rule 2: “It’s less important what you say…It’s most important who says it.” Rule 3: “Control the framing of the issue.” E.g., we [copyright reformers] frame copyright very differently than does Capitol Hill.

Take SOPA. He quotes Adam Green saying it’s not a matter of right vs. wrong but old vs. new. Staffers had been warning about SOPA, but suddenly the public engaged. The result was astounding: Co-sponsors became opponents of the bill. Derek says it wasn’t Google that killed SOPA. It was the 3 million people reaching out to Congress that killed it. “People like Elizabeth Stark, Alexis Ohanian [reddit] and Aaron Swartz.” The RIAA and MPAA like to frame it as having lost to Google rather than having lost to the American people. (He points to a Mario Savio speech that begins “There’s a time when the operation of the machine becomes so odious…”) SOPA remains very much on Congress’ mind, he says.

The framing was “perfect”: SOPA will censor the Internet and inhibit innovation.

Most conversations about copyright are framed as: Piracy is rampant, costing American jobs. Content is a crucial export, “the only thing produced in US any more.” Copyright is thus good, but more copyright is better.

Derek set out to reframe it in his “Three Myths of Copyright.” At a panel he asked “Who thinks terrorism is bad? Who thinks the TSA is only the way to protect us?” Likewise, is copyright the only way to protect content when it makes 23M Americans into felons? He points to the difference between the original copyright law and the current one. To conservatives, it can be framed as looking like a wild divergence from the original intent.

The “Three Myths” memo went out and was supported by conservatives until 24 hours later when it was pulled. A few weeks later, Derek was fired. He’s continuing but he thinks that when you’re on the outside, you have to fight small, strategic battles.

Idea + Movement + Effort = Legislation

A few weeks ago the head of the copyright office endorsed many of the reforms in “Three Myths,” updating copyright for the digital generation. The day before the content industry made the old argument in Roll Call. The other side isn’t countering. The content lobby knows that Roll Call is read by Congress. We need similar expertise.

How do we start?

1. Don’t wait for the next SOPA. They’re going to be much subtler in how they do it next time. Sites are still being taken down, e.g., Megaupload. Also funding mechanisms were cut off for ThePiratesBay. Also, Google was forced to take down links to torrents, etc. So, why would they come up with another SOPA? Instead they’re using international treaties to codify the DMCA forever, using stock language that gets replicated in treaties. These treaties only require Senate approval, or through executive actions. Therefore, we have to be more activist.

2. We have to analyze existing law.

3. We need support from both the left and the right

4. We need to focus on areas of common interest where we can form a collective whole

5. Asymmetrical warfare: Where are we strong and they’re weak? Where have they overplayed their hand? E.g., if you want to take on copyright law, that’s not asymmetric because there’s a strong argument on the other side.

“We lack the institutional capacity to quickly intervene in the political process in the way the content industry has. We therefore need to be smarter and more tactical.” We should start with smaller battles. We should avoid the narrative of “fighting the Man,” that companies are evil, etc. That won’t win over a party that sees itself as a party of business. “Instead, foster a David v. Goliath narrative.” That media like that narrative.

We should not talk about piracy. And even if the DMCA needs to be replaced, that’s a non-starter on Capital Hill.

Derek’s first campaign was on cellphone unlocking, after the Librarian of Copyright said it was now illegal (i.e., ending the DMCA exemption) to enable your phone to be used on a different carrier. Unlocking would increase competition among carriers. Derek wrote an article for The Atlantic that pointed out that the technology for the blind also has to be exempted every three years, a clear example of how the system is broken. Derek expected this issue to be hard. It didn’t get any mainstream media attention. It has a $32M lobbying effort on the other side. “That’s a problem on Capitol Hill: We don’t have a lobby for the future.” IT requires making hypothetical arguments.

But as the argument went on, examples emerged. E.g., Republic Wireless offers very cheap connectivity, but it depends on users bringing in unlocked phones.

Derek started a White House petition that got 114,000 signatures, the largest at the time. In part this worked because of people’s prior experience with SOPA. There were positive arguments on Left and Right. Left: It’s a matter of fairness. Right: Property rights. Derek added to this the value of innovation as a cross-party value.

After the petition, the FCC announced an investigation, and the White House came out in favor of unlocking. Before that, Derek had urged Congressfolks to come out in favor of it, if only because he was worried that after Obama came out in favor of repeal, the right would take the other side. But shortly after Obama endorsed, some conservatives came out in favor. Bills were introduced in both chambers.

Unfortunately, we have no way of mobilizing the 114,000 people who signed the petition; the names couldn’t be captured.

Why was it successful?

1. They made it simple. (Also with SOPA: SOPA = censorship)

2. Leveraged social media

3. Utilized video

4. Created a diverse coalition

5. Gained mainstream credibility

6. Channeled energies into a measurable demonstration of support

7. Kept Congress in the loop

8. Solid media narrative

9. Avoided talking about piracy. Instead: competition, innovation, and property rights.

10. It was unfair

11. Everyone has a phone…

Derek presented this at a conservative org and got called a Marxist. Fox Business also: “You’re just against contracts.” “When you take up an issue, you have to know where your third rails are.” Response: The contract is between you and your carrier; the feds shouldn’t be arresting people for violating a contract.

Why is it important? It’s the first time Congress has questioned the DMCA. We might get a hearing on it. Congress is unaware of the implications of the DMCA. It also helped Congress realize that international treaties are being used as a backdoor for these restrictions. It may affect the Trans-Pacific Partnership treaty. And it helped identify allies.

Bottom line: “A free society shouldn’t have to petition its govt every 3 years to allow access to tech.” It’s akin to free speech, he says.

On the CFAA: “The statute is terrible.” There’s consensus about this. “But no one has written about in Weekly Standard or Politico.” It hasn’t reached Congress’ attention. Most members of Congress think that the sky is falling when it comes to cybersecurity. Every time a cybersec bill comes up, Congress has experts telling them that we are in deep peril. “Essentially the arguments for CFAA are that we need to reduce the DoJ’s discretion.” You have to defeat that training. Meet with Rogers or McCain or the other cyber-hawks and convince them that the CFAA needs to be reformed, that we can target hacking with a more narrowly focused bill.

Q&A

Q: Can we try to drive a wedge in the opposition?

A: Yes. The RIAA’s and MPAA’s policies don’t foster innovation in their own industry. Over a 100 wireless carriers supported us on unlocking.

Q: You said that people who “get” tech are on the side of openness, etc. That optimistically suggests that if we educate people, they’ll take more common sense positions on tech.

A: Not entirely. Congress listens to people they trust, who are the RIAA, MPAA…

Q: …But even if Congressfolks fully understood tech, would the funds they get from the content industry still sway them?

A: Yes, some understand and still oppose us. But the ones who understand generally agree with us. The story is more complex: The MPAA/RIAA are very liberal, but the right still tend toward copyright protection.

Q: Why is the content industry so powerful, given the size of Google, etc.

A: AT&T and Verizon are both in the top ten of lobbying companies: $32M. Google spends about $6M on lobbying. “No tech company had a DC presence until Microsoft” when it was about to be broken up. Also, as the tech companies invest heavily to survive, say, patent law, why would you favor wholesale patent law change? Also, when the RIAA/MPAA sue kids, the money goes back into lobbying, not to the artists. They’re self-funding. But the tech industry has to justify why they’re spending money on lobbying.

Q: In Pakistan, piracy is rampant. Doesn’t that hurt innovation?

A: Piracy is real. But, those generally weren’t loss sales. The obsession with piracy is the problem.

Q: How about the role of public interest groups?

A: I’m a big fan of Public Knowledge and EFF, etc. But they need supplementing with more activist movements.

Q: If we focus on small victories, will people think we’re not doing enough? Will you have to keep winning bigger and bigger?

A: You can exist at a level for a while, if you’re strategic about it. Eventually you have to move on to bigger battles.

Q: How about the importance of multistake partnerships?

A: You need as many allies as you can. E.g., I’m interested in orphan works: in copyright but you can’t find the copyright holders. Our interests are in line with the RIAA.

A: Are we in a moment like the environmental movement before it formed under a single banner?

Q: I’m not an expert on the environmental movement. There are lots of lessons to be learned from them.

Q: Is there a schism in the conservatism over copyright reform?

A: I haven’t seen much of a schism. The best argument I’ve heard is the natural rights one: copyright ought to exist forever. But that’s not the system we’ve adopted. Our founding fathers rejected it. I’d like to build a cross-party coalition, but that’s a longtime goal.

Q: Did you get pushback on using the WH petition mechanism?

A: I got some from privacy folks.

Q: When we win a battle, the other side comes up with something more drastic. E.g., we won a first sale argument, but the right may be preparing something much more drastic. How can we avoid that?

A: I’m not sure they’re going to try to reverse the first sale doctrine, but we need to have our eyes open.

Q: What should we do right now?

A: We’d like to start to bring together the CISPA coalition.

Categories: berkman, liveblog, policy, politics dw