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Interviews: Ask Derek Khanna About Government Regulations and Technology 72

Posted by samzenpus
from the freedom-from-freedom dept.
Republican staffer Derek Khanna was thrust into the spotlight in December for being fired after submitting a controversial brief titled: Three Myths about Copyright Law and Where to Start to Fix it. In the brief Khanna said: "Current copyright law does not merely distort some markets – rather it destroys entire markets," a view not very popular with Republicans in the House of Representatives. Since the firing, Khanna has continued to speak out on the need for copyright reform and most recently on the law against unlocking cellphones. Derek has graciously agreed to take some time to answer your questions about copyright reform and IP law. As usual, ask as many questions as you'd like, but please, one question per post.
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Interviews: Ask Derek Khanna About Government Regulations and Technology

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  • I believe your paper would have been unpopular on both sides of the isle but did the Republican knee jerk reaction to it negatively affect your affinity with the Republican party and your efforts to further their cause? Setting aside your differences on Copyright Law with that party, are you still Republican?
    • Follow up question: If you had been a Democratic staffer, do you think you would have been fired or would have been treated differently?

      That is, what is the interaction between the Republican party verses the general entrenched interests that influences both parties. I have seen many Democrats also advocate for strict IP laws.

    • Sorry, but the recent Corporate Real Estate diagrams for my department's new data center had areas labeled "hot isle" and "cold isle", and somebody ought to get flamed for it.

  • by eldavojohn (898314) * <eldavojohn@gmFREEBSDail.com minus bsd> on Thursday February 14, 2013 @12:46PM (#42896623) Journal
    Something that's always puzzled me is that the Republican party (more so than the Democrats) appears to value a corporation's rights over the rights of one of their very own constituents. With something like copyright law, it has long been clear that there is a lot of money in lobbying for the corporations and crickets chirping when it comes to defending things like fair use and public domain. In this particular arena, why don't votes outweigh campaign donations? Why hasn't a Republican (or Democrat even) built a platform on these things that benefit society as a whole in order to gain more votes? Is the money that good? Are the effects too concealed?
    • I can answer that one: Copyright is a niche issue. The vast majority just don't care. In the public agenda, it's right at the bottom. The number of votes which might be won by taking a stace for less restrictive copyrights is just outweighed by the number of votes that might be gained from improved advertising and campaigning funded by donations from copyright industry representatives.

      • +1 for this, IP issues are completely off the radar for most people. Copyright, patents, DRM, all probably less important than how carefully a candidate put his tie on in the grand scheme of an election.

    • I think I can point to as many – if not more - Democrats who support strict IP laws.

      As for the Republicans specifically, read up on the tragedy of the common’s and Milton Friedman ‘s work on property rights and freedom. They (and I) believe that strong property rights encourage economic advancement and personal freedom.

      As a side note, this is something that I struggle with. I want to see movies like the Hobbit, which only make economic sense if you factor in the DVD sales, licenses product

      • by Hatta (162192)

        I enjoyed seeing the Hobbit, but I'm quite sure I would gain more than I would lose if copyright were abolished. The massive influx of entertainment and educational materials into the public domain would more than offset any loss of blockbuster movies or other unsustainable business models.

        • by tlhIngan (30335)

          I enjoyed seeing the Hobbit, but I'm quite sure I would gain more than I would lose if copyright were abolished. The massive influx of entertainment and educational materials into the public domain would more than offset any loss of blockbuster movies or other unsustainable business models.

          And the loss of every open-source software project in the world, as well, because copyright oddly protects them as well.

          Without copyright, anyone can take Linux, ignore the GPL (the GPL grants rights you don't have with "

          • by Hatta (162192)

            And the loss of every open-source software project in the world, as well, because copyright oddly protects them as well.

            Copyright only protects open source because our software freedoms aren't enshrined in law as they should be. Make the four software freedoms the law of the land and copyright will be completely useless.

          • Except that the GPL doesn't cover all Open Source or Free software. Without copyright, we don't have Stallman's copyleft. There's a whole lot of software out there with BSD-type licenses, and the only copyright-related restriction on those is attribution. This is still important, since it's useful to know if this is J. Random Hacker's version of FooWrite or something somebody else hacked on, but that can be covered with trademarks.

    • The votes are likely just not there in quantities great enough to matter.

      If you had $100 to spend on an issue, and $100 spent on issue A would net you 50 votes, while $100 spent on issue B would net you 150 votes, until diminishing returns on investment bring dollars invested in Issue B to Issue A rates of return, why would you ever spend money on Issue A if your needs were being satisfied?

      Copyright is a complex topic, it doesn't lend itself to polarizing positions (nor should it, if we are to actually get

      • by Hatta (162192)

        Copyright is a complex topic, it doesn't lend itself to polarizing positions

        Copyright is a very simple topic. Any first semester economics student should be able to figure it out. Price is set by the intersection of supply and demand curves. Decreasing marginal costs increases supply which lowers price. When marginal cost is zero, price is zero. Attempting to subvert basic economic principles with brute force is unproductive. The only sensible policy in the digital age is copyright abolition. Observi

        • It’s not “When marginal cost is zero, price is zero” – you have to factor in fixed costs. And when you say the price of something is nothing, you are saying it has no value. Then take a look at the supply curve - when price is zero supply is zero.

          I think a lot of stuff out there has value. Am I 100% happy with current laws? No – I think they are too strict. Have I seen a better proposal then the current general construct of IP laws? Not really. (I have to give credit to KickSt

          • by Hatta (162192)

            Itâ(TM)s not âoeWhen marginal cost is zero, price is zeroâ â" you have to factor in fixed costs

            Fixed costs only matter for that first copy. Charge enough for that first copy to meet your fixed costs.

            And when you say the price of something is nothing, you are saying it has no value.

            Air is free, and yet it has value. Price is not value. Getting something valueable for free is a good deal.

            Then take a look at the supply curve - when price is zero supply is zero.

            That's OK. If supply of

            • Fixed costs only matter for that first copy. Charge enough for that first copy to meet your fixed costs.

              Well, technically, marginal costs are based on total costs which included fixed costs. Even assuming you could find somebody to pay the upfront costs (which is a very generous assumption) you would have to deal with the free rider problem. So, as a whole society would undervalue these types of projects and thus underfund. (See below)

              Air is free, and yet it has value. Price is not value. Getting something valueable for free is a good deal.

              You are right that there is a difference between price and value. But by saying it should have a price for zero you are EXPLICATING stating it is worthless. In your example, wh

  • by eldavojohn (898314) * <eldavojohn@gmFREEBSDail.com minus bsd> on Thursday February 14, 2013 @12:48PM (#42896653) Journal
    From your interview with Tim Lee:

    But the "level of backlash it received from the content industry" took him by surprise.

    Really? This took you by surprise? If not exactly what occurred, what exactly did you expect to happen? The content industry was just supposed to take it in stride and think that maybe copyright law has moved too far in their favor? I'm not in politics (thank god) and I'm not in the copyright business (praise xenu) but it was as lucid to me as an unmuddied pond that your job was forfeit upon publishing this. I mean, what exactly do you think Hollywood and the RIAA are paying you for if not to keep these kinds of discussions off the table and pass some Mickey Mouse Act 2.0 through the next Sonny Bono puppet?

    • by Jiro (131519)

      I'm not him, but Hollywood is notoriously left-wing and on the side of the Democrats, so maybe he assumed that Republicans wouldn't be on Hollywood's side as much.

    • The Republican base is notoriously hostile to the groups represented by the **AA. Most Republicans come from districts where Hollywood and co mean jack to them in terms of jobs and may even be an impediment. They're more likely to hear "what are you doing to rein in the filth from Hollywood" than a MPAA or RIAA-friendly comment from their base.

      So really, for someone who was a bit naive it would be a no-brainer to think that a policy proposal along these lines aimed at galvanizing anti-big content voters and

  • Now What? (Score:4, Insightful)

    by eldavojohn (898314) * <eldavojohn@gmFREEBSDail.com minus bsd> on Thursday February 14, 2013 @12:49PM (#42896689) Journal
    You told other staffers when you left:

    Don't be discouraged by the potential consequences. You work for the American people. It's your job, your obligation to be challenging existing paradigms and put forward novel solutions to existing problems.

    So now what? What's your plan? I mean, you can tell them not to be discouraged but that's a pretty hefty weight to put on your own shoulders. Anyone who gets a check from the content industry (and I think that's everyone in DC) is going to blacklist you. Do you see yourself taking a Ralph Nader-like approach to politics? How do you even get your foot back in the door? You do realize that if you don't return or rise to another kind of constituent-focused power that your above encouragement will fall upon deaf ears as you will become the example of what happens to an outspoken staffer?

  • Hope? (Score:5, Insightful)

    by Hatta (162192) on Thursday February 14, 2013 @12:58PM (#42896809) Journal

    How do we Americans manage to retain any hope for any sort of positive change when people who are paid to identify beneficial reforms get fired for upsetting special interests? Doesn't your case prove that it's impossible to effect reform through the system? Do you belive that Democracy in America still exists, and if so, why?

    • Re: (Score:1, Offtopic)

      by fustakrakich (1673220)

      Democracy in America is healthy and functioning as designed. The question should be, whether democracy is beneficial for America.

      • Re: (Score:2, Offtopic)

        by Hatta (162192)

        I agree that the system is working as designed. I disagree that it resembles anything even slighly related to Democracy. We can't even honestly claim to be a Constitutional Republic anymore.

        • Regardless of the money involved, we still have the option to vote different people into office. That we don't use that option is no fault of the system. The weakness is in the voter.

          • by Hatta (162192)

            Sorry, the US electoral system is a system. And systems have mathematical properties. Properties like Duverger's law and the median voter theorem. These unavoidable complications bias our electoral system towards entrenched power though no personal fault of the voters.

            The purpose of elections is to gauge the will of the people. Elections are tools we use to measure the will of the people. But any tool can malfunction, and any measurement can be biased if it is not calibrated properly. Our system is ma

  • The "law against unlocking cellphones" isn't a law - it is a regulation, a rule set by the Librarian of Congress. This is good, because it is probably easier to change than a law, which requires an act of (a very hostile and deadlocked) congress.
    • by Quila (201335)

      Actually, it is a law, the DMCA prohibits the circumvention necessary to unlock a phone. The law lets the Librarian of Congress make exceptions to this prohibition.

  • by CanHasDIY (1672858) on Thursday February 14, 2013 @01:20PM (#42897075) Homepage Journal

    So, your story is, essentially, that you stood up for the American People, did the right thing, and got yourself fired as a result.

    Exactly how bad is the situation in D.C., really? Is there any useful purpose to our attempts at participating in democracy, or do lobbyists and special interests completely run the show at this point?

    • by mark-t (151149)

      Rosa Parks was just one person too.... and she ended up being arrested and jailed for what she did. But the action still was very much a catalyst for positive change.

      Just because the outcomes for trying to stand up for what is right are bad right now, doesn't mean that it's going to be that way forever.

      Hopefully, more people will have the courage to do what this man did. It's not an easy road to travel, but there's hope that future generations can still reap the rewards as long as people are willing

      • by femtobyte (710429)

        Rosa Parks' civil disobedience action turned out to be effective because there was a lot more than one lone person involved. Ms. Parks was secretary for an NAACP chapter, which mobilized the work of a *lot* of activists to make sure Ms. Parks' arrest wasn't just another "negro arrested, so what?" case. "Just one person" would have been forgotten by history --- the only reason we remember this is because of the large, dedicated, grass-roots activism organization backing her up, turning out tens of thousands

  • by CanHasDIY (1672858) on Thursday February 14, 2013 @01:23PM (#42897109) Homepage Journal

    Is there any future legislation that you know of / heard about during your time as a staffer that we, the People, should get a heads-up on? Specifically, anything nefarious regarding things like copyright, patents, digital property and/or privacy, et. al?

  • I too would like to see a major overhaul in our patent system, but I wonder what, if any, aspects of the current system do you think are beneficial and worth preserving, or modifying slightly?

  • by Antipater (2053064) on Thursday February 14, 2013 @01:25PM (#42897137)
    You deal with issues that must really piss you off. I mean, the reason you're famous is that you got fired - not exactly a happy event, and you have to relive it in every interview. How do you deal with that? Have you developed a zen about the situation yet, or are you still angry? How do you deal with the stress and anger? Do you meditate, go running, hit a punching bag, or what?
    • by Type44Q (1233630)

      Do you meditate, go running, hit a punching bag, or what?

      He'd hit the gay strip clubs but he's no longer a Republican... :p

  • The United States was founded as Republic, primarily (so it is said) because having individual voices was impossible with the technology of the time. However, we live in an age where the Internet has given us instant communication and access to vast information, where we can relatively securely pass information around, and where especially, we can have every voice heard to write our own bills and laws. Iceland may be small, but they have proven it's more than just a theory. We have open source books, open s
    • No – the founders were very afraid of Democracy, because Democracy was equated to mob rule – where the rabble would pass laws that would benefit them in the short term. They were highly influenced by Plato’s Republic.

      I would point to California as an example – where the ballot initiative has gotten out of hand. Ask voters individual questions – limit the raising of taxes, direct increase on spending (education), or indirect increases (3 Strikes vastly increased spending on pris

      • They were also inspired by John Stuart Mill and other great political thinkers/philosophers. I don't think afraid of democracy applies as much today (try getting enough people to give a crap to get worried). What is far more worrisome is corruption and ignoring issues that politicians indefinitely throw on the backburner (patent system, science), or things that are good for the nation, are not good for either political party. While many of these philosophies still hold, new ones have emerged along with scie
    • by ArsonSmith (13997)

      Actually it was more so that the rules of the majority couldn't railroad the minority. It was thought that a professional 3rd party could weigh the needs of both sides and come to a fairer decision. With the caveat that it centralizes the corruption point.

  • by Maximum Prophet (716608) on Thursday February 14, 2013 @01:50PM (#42897513)
    One complaint conservatives about liberals is that they tend to try to outlaw stuff reactively. The EPA comes to mind, forbidding property owners certain uses of their land.

    How can government encourage people to do the right thing without outlawing the wrong thing? How can the government "Speak Softly" but keep the "Big Stick" only when absolutely necessary?

    With respect to copyrights, could the government tell people it's wrong to let artists starve, while making it easy to justly compensate them for their work?
  • by JestersGrind (2549938) on Thursday February 14, 2013 @02:11PM (#42897929)
    This question is a little broader than just copyright reform, but I'll ask it anyway. Do you have ideas, short of a revolution, on how do the American people can fix the system when the people capable of making change possible are corrupted by corporate lobbyists against any changes? Voting them out isn't even an option because another of the same ilk will just replace the ousted politician.
  • It just depends WHICH regulations depending on WHICH of their friends they want to benefit.

  • Derek, I am curious whether the RSC gave any reasons for your dismissal? I guess not, as I imagine your employment was "at will".
  • Your example copyright term reform (under "Heavily limit the terms for copyright, and create disincentives for renewal") seems only to consider copyright held by corporations. What do you think of separate term limits for copyrights held by individual creators (maybe aligned better with human life expectancy which has greatly increased since 1790) versus those sold by their creator or created as "works for hire"?
  • Which Rep fired you or had you fired? (Because I am pretty sure she is my Rep).

  • by Tokolosh (1256448) on Thursday February 14, 2013 @04:09PM (#42900125)

    I had not previously read Derek's policy brief, but I googled for it (RSC link did not load) and was gratified to see that it corresponds to my thinking, per my /. post last week:

    Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress:

    "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

    The fact that the Constitution explicitly carves out this Congressional power, implies that there is no inherent right to intellectual "property", equivalent to ownership of tangible property. The aim is to "promote progress..." for the nation as a whole. Any legislation should be calibrated to maximize this benefit to society. This is not the same as maximizing the benefits to the authors and inventors. So the definition of "limited times" should be optimized to this objective of maximum benefit to the nation. Too short, and there is insufficient incentive. Too long, and the benefit to society is lost. I believe current patent and copyright durations are much too long and some objective rigor is needed to find the optimum times. Note that one-size-fits-all is not appropriate, and that different durations may be appropriate for different technologies and industries.

    Also, the definition of "writings and discoveries" should be much more narrowly defined. Round or square corners on a phone is no benefit to anyone. Reprinting Shakespeare does not entitle you to copyright.

    • by Tokolosh (1256448)

      And here is another, from December:

      We are in the middle of a huge, global experiment. One the one side we have the American model of almost infinite copyright, fiercely defended by the RIAA and MPAA middlemen, who load on extra costs while a pittance goes to the artists – see http://articles.baltimoresun.com/2012-08-27/entertainment/bs-ae-sugarman-film-20120824_1_strydom-royalty-checks-music-industry [baltimoresun.com] for an example.

      On the other side, we have the rest of the world, where copyright does not exist or can

    • by Tokolosh (1256448)

      And more than a year ago:

      Assuming (big assumption) that Congress seeks to maximize "the Progress of Science and useful Arts", then the optimal "limited Times" must be determined, to seek a balance between rewards for authors and inventors, and benefit to society.

      One week of copyright is not much incentive to an author. 100 years is not much benefit to society. I think 14 years is about the optimum, but have no data to prove this. However, it cannot be too difficult to determine the optimum, at least to with

    • by Tokolosh (1256448)

      My posting from nearly four years ago:

      To quote the Constitution: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

      What does "limited Times" mean? We can agree that one day is insufficient to be an incentive. We can also agree that infinity is too long to promote progress.

      Therefore, it stands to reason that there is some optimal duration, which both maximizes the rewards for both the i

  • Hindsight being on the order of 20/15 or so, would you make the same bold statement, or, knowing the consequences and repercussions, would you be a bit more tactful and attempt to reform the system from within?
  • Why are IP-rights so out of whack? Because all y'all in the US have allowed a political system in which rich, and even richer, folks can buy legislation. In other parts of the world such a thing would be called outright corruption. Not in America, though. You people have legalized corruption.

    And i was downright appalled when I first heard the Department of Homeland Security had seized 77 domain names, because of alleged copyright infringment. Yes, that's right, The Department of Homeland Security, created

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