Cellphone unlocking is the first step toward post-SOPA copyright reform

Derek Khanna was a Professional Staffer for the Republican Study Committee in the House of Representatives. Khanna, 24, previously worked on Mitt Romney’s 2008 presidential campaign and in the office of Senator Scott Brown (R-MA).

By Derek Khanna at 11:30 am Fri, Feb 22, 2013

Yale Law Fellow with the Information Society Project, columnist and policy expert Derek Khanna authored the controversial House Republican Study Committee memo “Three Myths about Copyright Law.” The memo on copyright reform was praised throughout the tech community as being "brilliant" and a "breath of fresh air." He has spoken at the Consumer Electronics Show as a technology expert and will be speaking at Freedom to Connect and the Conservative Political Action Conference. Derek was referred to as a “rising star” in the party by David Brooks in the New York Times. Mr. Khanna continues to be a major thought leader on technology issues and disruptive innovation

With SOPA, the industry had the money, the lobbyists, and the organization. But we, the digital generation, are the trump card—and we won. Now it’s up to us to make sure that the historic protest was not merely a historical aberration.

When I wrote the copyright report for the House Republican Study Committee, I had no idea the outpouring of support I would receive from the digital generation that I belong to. I wrote it solely to start a conversation amongst our Congressional Members, but instead I have seen it engage thousands of average people. The report was published on November 16, 2012. Two weeks later, on December 7, 2012, I was informed that I would not be retained as a staffer.

Despite the personal consequences, I am not giving up. I'm just getting started, and I'm not scared by a temporary setback. I'm emboldened by it. And I don't think I'm the only one, or that I'm one of a few.

The conversation that the copyright report started is inspirational, in the face of a political establishment (on both sides of the aisle) which often refuses to acknowledge that we are paying attention. It is up to us, the public, to be engaged. If we are not satisfied with our policy-makers and the policies that they enact, we can change the policies by challenging them.

We have the ideas, we have the tools, and we have the organization.

President Obama and the Tea Party show that an energized and engaged citizenry can elect candidates in grassroots movements. And we have seen them stop legislation in its tracks. SOPA’s opposition proved that a united digital movement can stop legislation that is expected to pass despite overwhelming odds, special interest’ cronies, and powerful politicians.

Working on Capitol Hill during SOPA was humbling.

For weeks many of the technology-savvy staffers saw the storm clouds of opposition against SOPA building, but we had no idea how massive or sudden the storm surge would be. Many of us were strongly against what we saw as internet censorship from the beginning, working behind the scenes to try and get our bosses on the right side of the issue. Many of us were brushed aside.

But, on January 18, the effect of the movement was deafening. Voters crashed congressional circuit boards and websites, tweeting and facebooking at Representatives and Senators in record numbers. Most of us had never seen anything like this before, and for many it was an abrupt, sobering reminder of what democracy really is. Members’ sudden, vocal opposition of legislation that they were co-sponsoring was a watershed moment; though I would argue that it was also proof of concept for something even bigger.

SOPA awoke the sleeping giant.

A digital generation is ready to change politics and policies, and they will succeed. They will do this by rallying behind new ideas, coalescing around legislation, and by leading campaigns for passage. The show of force during SOPA was impressive. But getting legislation on the table for consideration requires another level of activism. It's a challenge that we will soon rise to.

Politics is not exclusive to the intellectual, elected, or rich. Politics starts at kitchen tables, water coolers, gyms, bars, and churches. But how does it manifest itself as real change? Put simply: Idea + Movement + Effort = Legislation

I am confident that we can do this, even the special interests expect us to give up. To them, politics is about vested interests, donations and who has the biggest hired guns. Their cronies are counting on us being overwhelmed. They are banking on us fearing failure, on our failing to try in the first place.

I invite you to join us and continue this fight for future battles.

How do we start?

This fight is going to take a generation. It's going to take a movement. But let me suggest, for what it’s worth, a few pointers.

• We cannot continue to stay on the defensive, watching and waiting for the next SOPA. If we slumber, they will sneak provisions into law that do effectively the same or similar things as SOPA. The best defense is a solid offense.

• We should recognize that the next SOPA may not be like the old one. The content industry will likely be smart enough to try to accomplish the same ends through other legal avenues.

• We must analyze existing law. Our current laws are already, in some ways, nearly as bad as SOPA would have been.

• We must recognize that progress will require support from Republicans and Democrats alike, and therefore we need to be strategic in our battle choices.

• While we may have different perspectives and different priorities, we need to focus on areas of common interest where we form a collective whole.

• We should focus upon asymmetrical warfare. We shouldn’t be focused upon the big, fix-everything bill. We are the insurgents—and in the words of the famous Apple commercial, we need to think different.

We need a series of small, and highly strategic, affirmative victories. Such victories are hard to find, but they form the logical progression for a movement. Doing so will fulfill critical goals, each of which are strategic for overall success.

1. This will create an operating and ongoing coalition of post-SOPA actors.
2. It will change the dialogue and framing of the issues.
3. It will highlight the David v. Goliath nature of the fight, and thereby gain mainstream media attention.

Where do we start?

I believe that the first battle is on cellphone unlocking. Making the personal use of this technology illegal was a clear misstep and a major opportunity.

On January 26, 2013, it became illegal to unlock new phones. Unlocking is a technique to alter the settings on your phone to let you use it with compatible cellular networks operated by other carriers. Doing so now could place you in legal liability: up to 5 years in jail and a $500,000 fine. This is a violation of our property rights. It makes you wonder: if you can’t alter the settings on your phone, do you even own it?

This is just one clear example of intellectual property laws run amok: the underlying law was created to protect copyright, but it’s being applied in a situation that no legislator expected when they voted for the bill in 1998. It’s a clear example of crony capitalism, where a few companies asked for the law to be changed to their pecuniary benefit—despite the invasion of our property rights, its impact upon consumers, and its impact upon the overall market. The decision created even higher thresholds to entry for new market participants, which hinders competition and leads to less innovation.

When the Librarian of Congress (who had previously provided exceptions allowing this activity) issued a ruling on this issue on October 28, 2012, Congress refused to act. When that ruling went into effect, months later on January 26, 2013, Congress refused to act. On January 27, 2013, I published an article in the Atlantic, The Most ridiculous law of 2013 (So Far): It is Now a Crime to Unlock Your Smartphone, which brought more attention to this issue and was read by more than a million people. Despite this attention, Congress refused to act. At the time, I called their failure to address this issue a 'dereliction of duty.'

The SOPA generation sparked a White House petition to allow cellphone unlocking and Sina Khanifar and I advocated heavily on this issue over the past three weeks (Sina created the petition). During that time, Public Knowledge’s question on this issue was submitted for President Obama in the Google Plus Hangout. It was one of the most popular questions submitted. Rep. Defazo, Vint Cerf, and the National College Republicans all tweeted in favor of the petition. And yesterday, on February 21, 2013, at around 7:37 AM EST, the 100,000 signature threshold was crossed on the petition, thereby meeting the threshold required for the White House to provide a formal response. (We are currently over 110,000 signatures).

I propose that the post-SOPA protest coalition take this issue on forcefully, and encourage Congress to pass a bill that codifies permanent exemptions to the DMCA.

Dear Congress,

Please remove these items from your DMCA contraband list (both for developing the technology, selling and using the technology):

• Technology for unlocking and jail-breaking (currently allowed for iPhone, not allowed for iPad).

• Adaptability technology for the blind to have e-books aloud (currently subject to triennial review by the Librarian of Congress – it’s legal to use the technology but illegal to develop or sell).

• Technology to back-up our own DVD’s and Blu-Ray discs for personal use (current law makes this illegal and injunctions have even been used to shut down websites discussing this technology).

Signed,
The people

That we should have to petition our own government to remove these items from a “technological blacklist” is a clear example of how bad the problem has gotten—and why we can’t be satisfied with merely waiting for the next SOPA. If we win this battle, it will lay the groundwork for rethinking other parts of how our legal system affect technology, and how it allows crony capitalism to stifle innovation.

If you agree with me that this is the first of many strategic and winnable battles, the window to sign continues until Saturday. This is a milestone that will help start this process.

A Call to Arms

It’s up to us: was the historic protest against SOPA merely a historical aberration, or was it the beginning of a new historical norm? They had all the chips in SOPA: they had the money, they had the lobbyists, and they had the organization. But we are the trump card—the digital generation—and we won.

We're putting those special interests on notice. We are here, and we aren’t backing down. There are millions of Americans who believe that we deserve better from our politicians. For those willing to commence the next key battle on copyright reform, this is our call to arms.

You can follow Derek on Twitter at @Dkhanna11

Photo:REUTERS/Morteza Nikoubazl

Published 11:30 am Fri, Feb 22, 2013

About the Author

Derek Khanna is a Yale Law Fellow, columnist and policy expert focussing upon technology, defense and homeland security issues. He authored the controversial House Republican Study Committee memo “Three Myths about Copyright Law.” The memo was widely lauded through the tech community. He has spoken at the Consumer Electronics Show as a technology expert and will be speaking at Freedom to Connect and the Conservative Political Action Conference. Derek was referred to as a “rising star” in the party by David Brooks in the New York Times. Mr. Khanna continues to be a major thought leader on technology issues and disruptive innovation

25 Responses to “Cellphone unlocking is the first step toward post-SOPA copyright reform”

  1. beforewepost says:

    Look forward to your running  for Congress Derek. 

  2. May I recommend taking another insurgent approach and strike from both ends. Don’t just push to end jailbreaking, let’s also move to make it not in a company’s interest to jail devices to begin with. Answer the question, “if you can’t alter the settings on your phone, do you even own it?” with a solid *NO* and that therefor your cellphone company must consider the value of the phones on their taxes at the full unsubsidized price. If the phone companies suddenly have a tax liability due to locking phones, they’ll likely be more willing to unlock them whether or not required to do so by law.

  3. Derek has a live AMA at Reddit here: http://www.reddit.com/r/IAmA/comments/191ffd/hi_im_derek_khanna_the_house_republican_committee/

  4. Ultra Fem says:

    Don’t make a hero out of this guy. HE’S A REPUBLICAN.

    • Radon_22 says:

      Of course. Because only DEMOCRATS can take a principled stand for what they percieve to be the truth, never lie to us, are free from greed and corruption, and never side with corporatists. 

      I’ll take principle over party any day.

      • Randy Meier says:

        The Republican Party is like a a fried Twinkie: I’m sure there’s a few things in there that the body can use as nutrition, but the majority is harmful junk. The Republican Party is a party of hate, and even if he’s ‘right’ on this issue, the guy associates with hate. As an alumnus of Yale, I’m ashamed the institution gave the unemployed ass a position.

    • And? Seriously. This is not a partisan issue. Because both parties have the same approach: be bribed for it. GWB didn’t reform copyright. Neither did Obama.

      Also remember, he was kicked out of the GOP staff.

    • novium says:

       Which makes him more of a hero, in my book. The republican party has degenerated into insanity, which is bad for us as a country in the long run. This is the kind of thing that would have once been a classically conservative argument- tearing down the government interference in business (in this case, laws, policies, and etc that are geared to fill the pockets of entrenched industry, to the detriment of ordinary people, business as a whole, and to the taxpayer)- and I for one would be thrilled if the Republicans were to pick that banner back up (and step away from the authoritarian and socially conservative causes).

  5. Interesting that a guy like this would spend this time drawing attention to the smart phone unlocking issue, which is a done deal right now, and not even mention CISPA

    https://www.eff.org/deeplinks/2013/02/join-namecheap-and-eff-stopping-cispa

    … and he didn’t mention the Obama already seized SOPA-like authority through his executive order a couple of weeks ago.
    http://www.whitehouse.gov/blog/2013/02/05/working-counter-online-radicalization-violence-united-states

    The president is cracking down on free speech and you guys are worried about unlocking cell phones?  Really?  Don’t get me wrong, the cell phone issue is a problem that needs to be dealt with, but first things first.  Lets get CISPA blocked in the legislature first.  That is the most present threat right now.  After that we need to figure out a way to get Obama to back down on his ‘online radicalization’ bullshit pretense for censoring people and deal with the cell phone issue.
    Fighting the cell phone issue right now only drains resources from the CISPA fight.

    • Antinous / Moderator says:

      Fighting the cell phone issue right now only drains resources from the CISPA fight.

      Fighting the CISPA issue right now only drains resources from the fight over drones/ TSA/ VAWA/ DOMA/ ……. do I need to continue?

      • Ok, good point.  There are a lot of issues out there, I guess I just don’t see the cell phone unlocking issue as the main issue I want to take up right now.

        • It is more important than you think. It open the door to more corporate invasion into private property rights. This has to stop now. What next? You are not allowed to repair your car (or choose whoever you want to do it)? Not allowed to install software on your PC ? That’s all where it is going.

          The fact that they made this in the DMCA is just mindboggling.

          PS: I’m in Canada. But that does not mean I don’t care. Canada tend to copy all the bad sh*t from the south.

        • Derek Khanna says:

          There are a lot of issues out there. But I can tell you, as someone who is meeting with groups and talking to people on the Hill, this is a winnable battle.  And winning, will re-frame how many Members of Congress look at some of these issues – that framing is critical. We need to start small but win. I chose this issue for a large number of reasons.

  6. BadIdeaSociety says:

    Why don’t we organize around some very specific, easy-to-get-behind petitions for “We the People” crowdsource the best wording of the petitions and just spread them around the internet.

    Some basic ideas:
    1) The 2013 Electronic Owners Rights Act – To permit the unrestricted use or alteration of an owned product regardless of the products physical or digital form.  This would not require companies to provide warranty support for altered products, but would not result in penalties for people who want to unlock their phones, install Linux on their PS3s, or region unlock their DVD players.

    2) The Non-Release Exemption – In the current internet age, it is unreasonable and foolish for the marketers of content to delay the release of any audio or video medium due to geographic agreement issues. If a TV show, music track, or motion picture is not made available for reasonable distribution in a reasonable time, the content is automatically provided a “defacto public domain declaration” until the time the regional release is made available. If the end user has the money and the reasonable means to submit payment and receive the product within the established system, then the content owner has the expectation to deny the sale of said product as a revocation of their rights to sue for the illegal download of or “illegal” ripping of said content.  In other words, if you refuse to make your content available in a region on a regionally blocked medium like I.Player, Hulu, NetFlix, or region-locked media like a DVD or BluRay, the end-user has the right to obtain the medium through alternative means until your company finds a way to properly market to that region.  This doesn’t forgive the ripping of screeners or the hand-camera recording of movies for sale on the grey market, but it compels media companies to make their content available in as many regions as possible at a fair-market price.

    3) The Broken Player / Emulation Exception – If you purchased a product on a discontinued media format and replacements are not available for reasonable purchase, you may obtain a reasonable replacement without penalty.  This is to permit a person who owns 8-Tracks, Laserdiscs, or even old video game consoles to download digital copies of their music, movies, or video games without expectation of additional cost. Also, in the cases of aged software, like Sirius Video CDs or old digital magazines for out-dated OSes, it is acceptable to rip, unlock, re-copy, alter or otherwise reuse the product on modern systems without fear of penalty.

    4) The Forfeit Clause – There is no reason that publishers cannot offer digital copies of old media in the current era.  If your publishing company has released anything in the past 100 years that is not legally considered public domain, but your company has made no attempts to republish, your company has officially forfeited the copyright of your work. Example: If you released a movie on VHS in the UK in 1985 but never republished since then, you are legally required to offer the work as a digital download or you are essentially approving the encoding of the VHS and upload to archive.org or youtube. 

    Anyone else have any thoughts?

    • Derek Khanna says:

      These are well thought out, interesting, and persuasive ideas. Please e-mail me .

      • Gerald Mander says:

         I disagree. There is a sense of entitlement underneath proposals 2, 3, and 4. A content creator is not obligated to provide content, for sale or for free, as a result of the original medium becoming outdated, the public’s demand that it be available at any particular time or location, or its failure to be re-released within the scope of legally defined public domain.

        • Except, it’s not really as entitled as you think. Copyright was not created for the benefit of authors. Copyright was created for the public. It was thought that if authors had absolutely no control over what they create then they wouldn’t create those works. So to promote the creation of new works the governments gave authors some level of control over the things they created. And originally copyright was territorial, you didn’t get rights in other countries.

          If copyright is now being abused to prevent release in specific countries (who’s people are supposed to be the ones to benefit from their own country’s laws, not the people of other countries) or format/release restricted to the point that it nearly disappears before it reaches the public domain then it makes perfect sense to revoke that permission of copyright.

          • Gerald Mander says:

             I’m aware of the purpose of copyright in regard to public domain. And even if I think a creator is being silly to refuse to release a work in a particular country, that doesn’t mean he should be compelled to. Again, the underlying assumption is that people everywhere are entitled to the work. I do think it’s naive to release something digitally and think that it will somehow stay within some suddenly arbitrary border, but that’s a different issue.

  7. Derek Khanna says:

    Thanks for everyone’s help who made this happen – I think you can still sign the petition if you have not here: https://petitions.whitehouse.gov/petition/make-unlocking-cell-phones-legal/1g9KhZG7

  8. Gerald Mander says:

    Patent and Trademark law are having a more direct impact on consumer choice and market innovation than any of these. Amazon was just awarded a patent for selling used e-books. This sort of thing is simply absurd. Intellectual Property inequity, archaicism, and irrelevance are shaping our culture in large and mundane ways, and the personal, professional, and market impacts are almost entirely negative.

  9. Introduction to the MeshNet De-Centralized Internet: http://vimeo.com/45819231

  10. Ubuntu for tablets: http://youtu.be/h384z7Ph0gU What’s going on with Whonix OS and Firefox OS?

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