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Meet the muzzled copyright crusader who believes laws are paralyzing progress

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If Hollywood had its way, most of us would have never heard of Derek Khanna. Last November, the 24-year-old Yale Law Fellow penned an explosive policy report entitled “Three Myths about Copyright Law and Where to Start to Fix It” for his employer, the House Republican Study Committee. Less than 24 hours after the memo’s publication, RSC Executive Director Paul S. Teller yanked it from the Committee’s website, claiming that it had been “published without adequate review.” Nobody believed the excuse, believing instead that Hollywood’s lobbyist muscle had tried to scrub the record. Like anyone skilled in politics, Khanna has no comment.

Of course, once on the Internet, always on the Internet. Khanna’s report quickly circulated the Web. It was heralded by the copyright reform crowd as one of the best policy recommendations to squeeze out of Washington D.C. A few months later, Khanna was unemployed.

Since then, Khanna has become one of the most vocal and tireless advocates for copyright reform in the U.S., rising to new prominence with his efforts to legalize cell phone unlocking, which in January was re-established as a federal offense. He’s been called a “rising star” in conservative politics by The New York Times’ David Brooks, and is furthering his causes as a columnist for The Atlantic and other publications. We got in touch with Khanna to get the lowdown on why the rest of us should be as passionate about copyright reform as he is.

Digital Trends: To start, give us a bit of background about your career so far.

Derek Khanna: I worked on two presidential campaigns. I worked on the Senate and in the House. I worked for Senator Scott Brown, and for the Republican Study Committee. And when I was with the House Republican Study Committee, I was managing technology, government oversight, and homeland security. And when I was there, I authored the controversial copyright memo.

A lot of people don’t realize that the legal structures we’ve created with copyright law are much broader than traditional understandings of what copyright is. I support copyright. I’m against piracy.

So that was part of my job over there – push the box, come up with new ideas that were solid conservative ideas but were technology-related ideas, tech reforms. So, copyright issues, patent issues – those were issues that I worked on, and were of a lot of interest to me. You know, kind of innovation in general was my main interest area. Trying to foster policies that would lead to the most innovation and competition.

Are there many people trying push the box in Washington?

It’s very uncommon. It’s one of the reasons I was brought over to the RSC, because they knew I had new ideas, I was a reformer. I was an opponent of SOPA, for example. So no, it’s not the common zeitgeist of D.C. But that was kind of my style. And you can see it’s not the common style of D.C. because I don’t work on the Hill anymore, so…

So that’s testament to the attitude about “out of the box” ideas in Washington?

That’s what you said. I didn’t say that. [Laughs]

What are the pros and cons to being inside and outside of the government when it comes to making changes in policy?

When you’re outside the Hill, you don’t have very many limits about what you can do. You can really think outside the box in a really unprecedented way. When you work on the Hill, it’s often difficult to bring new ideas to the floor. But if you work in the processes on the Hill, ultimately those are the processes that are going to lead to legislation.

But when you’re off the Hill, you can really engage in a movement, in advocacy. That’s what happened [with cell phone unlocking], a whole group of actors got involved and really made it happen. This movement would not have facilitated itself through work on the Hill itself.

For a lot of people, when someone mentions issues like copyright law, their eyes glaze over. How do you make people care about a subject many might consider boring?

I think a lot of people don’t realize that the legal structures we’ve created with copyright law are much broader than traditional understandings of what copyright is. And so I support copyright. I’m against piracy. But what we’ve created is a legal regime under copyright law that have de facto banned entire classes of technology. And that should be really troubling in an innovation economy that grows dependent upon new technologies and new market models.

For many of these technologies, [the creators] have to ask for permission every three years from the Librarian of Congress. That’s not how you incentivize investment. That’s not how you incentivize entrepreneurship. But, unfortunately, that’s what copyright law has become. Copyright today has allowed entire classes of technology to be banned.

What are some examples of tech that has been banned because of copyright policy?

The content industry has a history of pushing for laws that are so badly written and onerous that it effectively makes technologies illegal.

So, jailbreaking or rooting your phone are illegal. You have Cydia. You have 23 million jailbroken iPhones in the world. But you can imagine a thriving legal market, where individuals are developing new technologies for the iPhone in a way that Apple does not allow them to do so.

You can imagine a whole bunch of new technologies. Perhaps the best example of this is accessibility technologies for people who are deaf or blind, to help them to read or listen or watch media. We’re talking about closed captioning technologies. We’re talking about read-aloud technology for the Kindle. Those technologies are banned — all of them. So we don’t even know what accessibility technologies could exist. We don’t know what 22-year-old, 24-year-old tinkerers could come up with as potential solutions. But we do know that there are technologies out there that would help these people, and these technologies are against the law.

How did copyright policy get to the state it’s in today?

We’re in this state because the content industry asked Congress to write the Digital Millennium Copyright Act in this way back in 1998, before modern media. And the content industry has a history of pushing for laws that are so badly written and onerous that it effectively makes technologies illegal.

The best example of this is the digital cassette tape. There’s this new technology in the early 90s called the digital cassette tape. And everyone believes it’s going to take over the analog cassette tape. And the RIAA came in and made the provision so onerous that it was impossible for it to be imported to the United States. And they ensured that that whole technology wasn’t available to American citizens. So we skipped a whole generation of technology. We went from analog cassette tapes to CDs around 1997, when there was this whole other technology available that would have offered a superior experience for Americans.

How would you like to see copyright policy changed?

derek khanna washington monumentWell, there are lots of ways that copyright law has to be updated for modern technology. In the Republican Study Committee study, I wrote about some of the long-term issues, such as copyright terms being vastly longer than that envisioned by our Constitution, by our Founding Fathers; issues about fair use needing to be expanded; issues about DMCA takedown requests needing to be [revised]. But in the short-run, we have a lot of momentum on Capitol Hill. And the real short-term objective is to legalize a number of these technologies that there’s no governmental incentive to keep illegal – and that includes accessibility technologies, jailbreaking technologies, and unlocking technologies.

What are the chances that unlocking will become legal again?

I think we’re going to get a bill that legalizes unlocking. It’s up to, particularly, to the online community, to the redditors, to the tech audience – as I call it, the post-SOPA coalition – it’s up to those guys to get involved, to reach out to members of Congress, and say, ‘We want unlocking in a substantive way. And we also want some other things; we want jailbreaking, we want accessibility technology.’ It’s up to them to determine if the law should be legalizing these classes of technology, as opposed to just an unlocking bill. But we’re going to get a bill one way or another.

How do you use technology in your own life?

Well, I have an iPhone 5. And I have an Ultrabook that I use. My computer, I built myself, and have modded myself quite a few times. The hard drives are running in RAID. It has dual-boot with Windows 8 and Ubuntu. I’ve been running Windows 8 for about two years, well before it was released in it’s consumer form. I always beta test operating systems, and other programs, like Microsoft Office. So, I’m a little disappointed that I don’t have a new operating system to test out. I’m still waiting on Windows 9.