The Copyright Education of Mr. Khanna -- Part 2 Defending First Principles Series

Mr. Derek Khanna, a new Republican Study Committee (RSC) staffer, distributed a policy brief on copyright "myths" last Friday that the Committee very quickly disavowed and pulled down because it had not been vetted to ensure that it fairly represented the Republican Study Committee's views. Don't expect this policy brief to ever get the official support of RSC because Mr. Khanna has obviously and grossly mischaracterized Constitutional first principles, property rights, and free markets beyond recognition.

There are at least five fundamental flaws in Mr. Khanna's characterizations.

1. Congresses and Supreme Courts have not totally misread the Constitution for over 200 years.

Mr. Khanna's effective assertion that two centuries of Congressional and Supreme Court interpretation of the U.S. Constitution's treatment of property rights, and copyrights in particular, are really "myths" that misinterpret what he posits the Founding Fathers really meant to do in promoting "progress of science and the useful arts," puts his opinion squarely at odds with America's two centuries of experience with Constitutional rule of law.

While there is a perfectly legitimate copyright debate that can be had on the appropriate definition of how long "limited times" for exclusive right to "writings and discoveries" should be, Mr. Khanna's "myths" brief is fundamentally not about that, but about a frontal assault on two centuries of Congressional and Supreme Court interpretation of Article I, Section 8, Clause 8.

2. Mr. Khanna's copyright views are not conservative.

Mr. Khanna's hostile views towards copyright are at war with those of the Founding Fathers because property is strongly protected in the Constitution and the Bill of Rights. James Madison understood protection of private property rights was a first principle in stating in Federalist #10 that the protection of property rights "is the first object of Government." That comports with John Locke, whose social contract philosophy undergirds the American Constitution; he said: "The reason why men enter into society is the preservation of their property."

Mr. Khanna's copyright views actually closely parrot the collectivist views of the famous Professor Larry Lessig who founded Free Culture and Creative Commons, championed Free Software and CopyLeft, and called for convening a new Constitutional Convention because "Democracy in America is stalled" by the "corruption" of money in politics.

It is also important to note that Marx and Engels said their theory could be summed up in one sentence: "Abolition of property."

3. Copyright is property not monopoly.

Mr. Khanna's gross mischaracterization of the "exclusive rights" of copyright as a monopoly is classic Lessig-ian buzzword blackmail to demonize ownership of private property by mischaracterizing property exclusive rights with a word he knows people don't like -- monopoly. A copyright is not a business or market that can be monopolized, copyright is a Constitutional property right for a product that can be bought and sold, or protected from use by others.

To show how silly this mischaracterization is, do we believe we have a monopoly over use of our car or home? No it is our property and because it is our property we have the right to decide who can use our car or enter our house. The only purpose in mischaracterizing property as a monopoly is to promote hostility to property and individual ownership of property separate from the state.

4. Mr. Khanna is flat wrong asserting "Copyright violates every tenet of laissez faire capitalism."

No genuine conservative or free market proponent would imagine positing that property, or a whole category of Constitutionally-protected property like copyrights, patents or one's home property, violate the entire concept of capitalism. At its most basic level, capitalism is about capital which is private property. Capitalism is property and property is capitalism. Capitalism simply cannot exist without common law enforcement of property rights and contracts.

Even capitalism's biggest opponents, Marx and Engels, knew the opposite of capitalism was "Abolition of property."

5. Copyright is law not regulation.

Once again, Mr. Khanna uses deceptive language to mischaracterize and de-legitmize copyright in buzzword blackmailing it as government regulation and subsidies. Property is a Constitutional right. Copyright is enforced via the courts as law enforcement not regulation. It's absurd for Mr. Khanna to characterize Government law enforcement to protect all citizens' life, liberty and property as a "subsidy" rather than a purpose and core function of the Government.

In sum, Mr. Khanna is promoting Lessigian anti-property thinking (that more American innovation and progress will emanate from the utopian altruism of a property-less system, where taking what others produce without permission is called "sharing)," as superior to America's Constitutional political and economic system of property and economic incentives.

What do Mr. Khanna and Professor Lessig think the Founding Fathers meant when they said in the preamble of the Constitution "… secure the blessings of Liberty to ourselves and to our Posterity…"?

Our Founding Fathers understood two centuries ago, as most Americans still understand today, that "free," meaning no property, will not "promote the progress of Science and the useful Arts," (innovation) and that "free," as in no-cost, is not best for the people or for America because it is not economically sustainable for today or for "our posterity."


Defending First Principles Series

Part 1: Debasing Free Speech as No-Cost Speech