Uncrumpling Policy Papers – The Khanna Memo

Photo by Erickson Photography

Are conservatives fixing to adopt a position that copyright is a “government handout?”   Maybe.  Here’s what happened over the weekend:

The Republican Study Committee, which for now is still chaired by Tea Party conservative Rep. Jim Jordan (R-OH), issued and then retracted a policy brief proposing an approach to amending copyright law.  Officially, a spokesman for the committee stated that the memo was pulled because it “lacked balance,” but that’s putting it mildly for a document that is so bizarre it actually contradicts conservative fundamentals. Written by a young staffer and law student named Derek Khanna, the memo asserts that the current copyright paradigm stifles innovation (something we’re used to hearing from corporate interests who stand to gain from weaker copyright laws); but the content and tone of this particular memo is bipolar in its attempts to recast individual property and civil rights as a government subsidy. Some assertions in the brief seem to want to make copyright reform part of the “small government” agenda, while other assertions are downright collectivist in ways that would normally set conservatives’ hair on fire.  Of course the strangeness of the brief didn’t stop the folks at TechDirt, Daily Kos, and Boing Boing from high-fiving one another over it, all seeming more than ready to cozy up to the strangest of bedfellows in pursuit of corporate agendas masquerading as populism.  In short, it’s all just weird.

Titled “Three Mythys about Copyright Law and Where to Start to Fix It,” the brief begins with false premises about the origins of copyright itself, proceeds to describe non-existent or purely hypothetical problems, and then proposes reform to copyright laws without the slightest reference to how these laws have evolved since ratification of the Constitution.  I’ll leave it to legal scholars like Terry Hart, and Professor Mark Schultz to address premises and conclusions, but the middle part of the memo — the supposed problems — don’t require legal experience to dismantle on face value.  The brief identifies five ways in which innovation, which the author defines as “productivity,” is being stifled by the current copyright system.  The five headings are quoted verbatim from the brief.

1) Retarded the creation of a robust DJ/Remix industry.  After we’re done having a good chuckle over the whitest of white people championing the “DJ/Remix industry,” we’ll settle down and ask whether this is meant to be taken seriously at all.  Are we really meant to infer that there is an untapped wealth of employment to be had in the presently “retarded” DJ/Remix industry?  I’m not sure, but I do know that I would love to see some hardline, Tea Party conservatives out there stumping for the tens of thousands of DJ/Remix related jobs they want to create. In all seriousness, though, my colleague David Lowery is quick to point out that there is something of a racial divide here — that the mostly  black DJ/Remix artists are paying for the samples and works they use and doing just fine while this “problem” identified by the author is one of perception among a bunch of white academics in ivory towers.

2)  Hampering scientific inquiry. We hear this claim about science from quite a number of vested interests but not all that often from scientists themselves.  Again, while acknowledging the RSC retracted the brief, they also let it out of the bag in the first place; and I feel compelled to point out that current Chairman Jordan of that committee is a strong proponent of teaching Intelligent Design in schools and an opponent of stem cell research.  If there are ways in which scientific inquiry is tangibly stymied by the current copyright system, I suggest we should hear about this from people who are not hostile to science in the first place.  What people like the author of this brief usually mean when they say this is that the general public needs “more access,” but as I addressed in an older post, the general public has more access than ever before without necessarily showing any more interest.  Darwin v. Intelligent Design makes a pretty simple example.  Nothing in copyright law stands between the public and all the data on evolution one might want to consume, and yet, we’re still suffering with politicians who would rewrite that particular science into religion.

3) Stifling the creation of a public library. By stifling the creation of a public library, the author is mostly referring to Project Gutenberg, which has a noble component to its primary agenda.  Still, an argument for the mass digitization of all media to the diminishment of the value of authorship is both strange and a little frightening coming from this crowd.  It’s strange because the argument being made is for a kind of “redistribution of wealth,” in this case that intellectual property ultimately belongs to society more than to an individual or corporate entity.  That sounds about as anti-conservative as anything I’ve heard in some time.  Never mind that in the process of too eagerly making IP the “property of society,” we would also be making the owners of the cyber highway even wealthier and more powerful, but the cultural implications of what the author is saying is potentially staggering.  To quote Jaron Lanier from You Are Not a Gadget:

“Google and other companies are scanning library books into the cloud in a massive Manhattan Project of cutlural digitization.  What happens next is what’s important.  If the books in the cloud are accessed via user interfaces that encourage mashups of fragments that obscure the context of authorship of each fragment, there will be only one book. . . . A continuation of the present trend will make us like various medieval religious empires or like North Korea, a society with a single book.”

4) Discouraging added-value industries. When the author writes about discouraging added-value industries, he’s just plain winging it, suggesting that there is an as yet unkown wealth of legitimate industry to be made from more extensive reuse of media, if it were simply in the public domain sooner.  Absent any actual research, though, the author refers to VH1 style pop-ups (remember those?) as an opportunity to redistribute old films with “fan generated content,” like some massive, live Mystery Science Theater 2000 (remember that?) expereience. I can see why any number of UG experiences will always be good for Google, Facebook, and Twitter, but there’s nothing in this memo that indicates how real jobs might be created, which seems to me a requirement if one is to use the word industry.  In fact the overarching statement in the preface, “we don’t know what isn’t able to be produced as a result of our current system,” may be the most accurate sentence in the entire memo.  I’d also point out that as a practitioner in the entertainment industry, there is literally no end of material and ideas in the public sphere from which one can draw to keep producing new works that have measurable economic value.

5) Penalizes legitimate journalism oversight. Considering the sheer magnitude of professional and amateur journalism out there, as well as the number of groups who identify themselves as  journalism watchdogs of one kind or another, it’s odd that the author conjures a purely hypothetical scenario in order to support his assertion that copyright stymies the oversight of journalism.  “Imagine if there were a memo pulished by a well-known DC think-tank during World War 2,” he begins (inexplicably averse to Roman numerals) and then proceeds to describe how that memo could be found by an enterprising journalist and then squelched by the think tank through the use of copyright law.  For decades, I’ve been searching for an adverb to describe a degree of dumbness that literally reverberates inside its own logic, and this is one of those times I’d use the word if I had it.  Aside from the example being a figment of the author’s imagination, it also happens to be untrue.  There are several circumstances in which information like the kind he describes could not be protected by copyright, but that isn’t even the point.  The point is that a brief released by a group with the word study in its name ought to have some research in it and not the whimsical, TV plot ideas of a junior staffer.

This policy statement may well have been quickly buried by the very people who first published it, but that doesn’t mean there are not conservative and libertarian views looking to redefine copyright as a government handout.  In fact, on December 6th, the libertarian Cato Institute is hosting a forum entitled Copyright Unbalanced:  From Incentive to Excess.  I know plenty of pro-copyright people, including artists, willing to talk about whether or not elements of copyright need rebalancing, but that conversation cannot be had in an ideological context like the one this memo implies.

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