It was November 2012 and Derek Khanna was working as a staffer in the Republican Study Committee, which acts as a kind of think tank for the conservative wing of the House Republican Conference. Khanna, whose job was to follow issues pertaining to technology, homeland security and government oversight, was asked to draw up a short brief on copyright law — something the group could hand out to House Republicans in the hopes of getting some legislation moving. “The memo wasn’t my idea,” he says.
Read today, Khanna’s paper isn’t particularly explosive. If you’re even glancingly familiar with the tech world’s (richly deserved) hostility toward copyright law, it reads more as a summary of Silicon Valley conventional wisdom than a revolutionary document.
“This paper will analyze current U.S. copyright law by examining three myths,” it begins. They are, in order, that “the purpose of copyright is to compensate the creator of the content,” that “copyright is the free market at work,” and that “the current copyright legal regime leads to the greatest innovation and productivity.”
The paper elegantly argues against each false premise, and ends with a modest call for reform. “To be clear, there is a legitimate purpose to copyright,” Khanna writes, but “it is difficult to argue that the life of the author plus 70 years is an appropriate copyright term.” Indeed it is.
The memo was approved through the normal channels and put online, where the reaction was enthusiastic. “The American Conservative Union put the memo on their front page,” Khanna says. “They’re the ones who put on CPAC. So the support was pretty overwhelming from the right. And I worked late into the night with several congressional staffers whose bosses were interested in moving forward. But the next day, I got a phone call from my boss saying they’d have to walk back the memo because of pushback. Within 24 hours the memo was taken offline.”
Two weeks later, Khanna was told he would be let go at the start of the next Congress.
Khanna had unwittingly stumbled into a deep fissure in today’s Republican Party. The party sees itself as the champion of private enterprise. But which private enterprises? The ones that exist today? Or the ones that might exist tomorrow?
There’s a difference between being the party of free markets and the party of existing businesses. Excessively tough copyright law is good for big businesses with large legal departments but bad for new businesses that can’t afford a lawyer. And while Khanna, like many young conservative thinkers, believes in free markets, the Republican Party is heavily funded by big businesses.
To see how this play outs, consider the debate taking place in conservative circles over financial regulation. A growing cadre of thinkers are coming to the conclusion that the big banks have become a kind of oligopoly protected by the inescapable taxpayer subsidy for financial institutions that are too big to fail. The pro-market solution to this, some Republicans argue, is to get rid of too-big-to-fail banks altogether — that’s the only way to foster a competitive market.
“Capping bank size, limiting bank activities, higher equity capital requirements,” writes Jim Pethokoukis at the conservative American Enterprise Institute, “all tools in the toolbox for eliminating the crony capitalist subsidy of the US financial system by government.” This thinking is leading to some unexpected alliances. Sen. David Vitter (R-La.), a hard-core conservative, is co-sponsoring legislation with Sen. Sherrod Brown (D-Ohio), a leading liberal, that would break up the big banks.
But the rebellion hasn’t spread far, and it probably can’t spread very far. As Ramesh Ponnuru, an influential conservative writer, told Politico, “if [breaking up the banks] even got to the stage where politicians were talking about it, then there would be a discussion of, ‘Well, how are we ever going to fund our campaigns?’”
Freed from the confines of the Republican Party, though, Khanna no longer has to worry about such questions. In recent months, Khanna has focused on an obscure provision of the 1998 Digital Millenium Act, which due to a recent ruling by the Librarian of Congress makes it illegal to unlock your cellphone.
He wrote an article for the Atlantic calling the ruling “the most ridiculous law of 2013 (so far).” The piece received more than 58,000 Facebook shares and 5,000 tweets. He joined with Silicon Valley entrepreneur Sina Khanifar, who used to sell software to unlock smartphones before Motorola used the Digital Millennium Copyright Act to shut down his business, to promote a petition on the White House’s Web site hit the 100,000 mark necessary to trigger a response from the executive branch.
It turned out the Obama administration was, in this case, on the young Republican’s side. “The White House agrees with the 114,000+ of you who believe that consumers should be able to unlock their cellphones without risking criminal or other penalties,” began its response.
“In fact, we believe the same principle should also apply to tablets, which are increasingly similar to smart phones. And if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network. It’s common sense.”
Conservatives responded, too. Khanna got the support of the College Republicans and Tea Party Nation, and Rep. Jason Chaffetz (R-Utah) is sponsoring a bill on the subject.
But he’s not done. “Cellphone unlocking is just the start,” Khanna says. “For conservatives who are naturally skeptical of government being involved in the private sector, they need to realize that intellectual property law is a way government is naturally involved in the private sector, and entrepreneurs will say these laws, at this point, are killing them.”
Khanna may not have meant to pick this fight. But now he’d like to finish it.