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.
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).
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.