The Tech Industry is a “Special Interest” too!

Vox Indie’s Ellen Seidler points out that the Tech Industry is a special interest too in response to Derek Khanna’s assertion that “Hollywood” or rather the musicians, artists, filmmakers, photographers and other creators are a “special interest” who should not have a voice in how the fruits of their own labor are monetized and exploited, and by whom.

Let us not forget that these are rights not just granted by the United States Constitution but also in Article 27 of the Universal Declaration of Human rights proclaimed by the United Nations General Assembly in Paris on 10 December 1948.

Derek Khanna argues that the special interest that is the elite Silicon Valley internet and tech businesses who profit from exploiting artists should be making the rules. Fancy that, self serving, self interests for profit hungry corporations the size of a nation states wanting to make their own rules over the proceeds from individual labor.

Mr. Khanna gives readers a list of examples that, to him, demonstrate why copyright law is bad for creators and industry innovators alike. Why’s that a problem? Well, it’s a problem because, as is often the case with the copy-left, he doesn’t see fit to talk to tell the full story as to how crucial copyright protection is for those whose livelihoods depend on content creation. Khanna lists Hank Shocklee of Public Enemy, as an example of an artist constrained by current copyright law, but fails to mention that while Shocklee is a musician, he’s known for work often derived from sampling the work of others. His situation is not exactly representative of all artists, musical or otherwise, who have a stake in this debate.

Why not talk to some 45% of professional musicians who are no longer working in large part because our current copyright law is flouted by today’s digital pirate profiteers? Why not make mention of the independent filmmakers whose innovations are routinely stolen and monetized by bootleggers and online thieves?


Derek Khanna is Wrong: Copyleft Mystery Man’s Misleading Memo Creates its Own Myths…

Time For Silicon Valley To Grow Up And Take Responsibility For Their Online Advertising Business Model.

Derek Khanna & Co. Continue Attack on Artists Rights at SXSWi Panel

The recent SXSW Interactive panel titled “Copyright & Disruptive Technologies” was merely another single point of view attack on artists, musicians and creators as artists rights are copyrights. It’s interesting that this panel offered no differing perspective from the view point of the artists and creators whose work is actually being exploited, without permission (or compensation).

On the panel were those who are advocating for “Permissionless Innovation” including Andrew Bridges, partner at Fenwick & West LLP, Ben Huh, CEO of the Cheezburger Network as well as a trio from Yale Law School’s Information Society Project including Wendy Seltzer, Margot Kaminski and Derek Khanna.

Glen Peoples at Billboard reported on the ongoing unilog of the copyleft attack on artists rights. The panel presented the usual anti-artist, anti-creator maximalist talking points which don’t believe in the artists right to grant consent for the exploitation of their work (and in many cases don’t believe in granting the creator compensation as well).

We’ve previously pointed out in some detail that Derek Khanna is wrong while highlighting all of the obvious fallacies and self created myths in his disavowed RSC “memo” on copyright. Now it appears that Derek himself is confused over the who may have even requested the memo. As our reader Jonathan Bailey (@plagiarismtoday) noted,

“Right now, we know who wrote the paper, but not who requested it, what supervision it was under and who, if anyone, approved its publication. This is not an acceptable way to interject a work into the public discourse.”

The persistent use of the meme “permissionless innovation” might just as well be called what they want it to really be, “permission to steal, and profit with immunity.” There is nothing innovative about stealing from or exploiting artists. In fact it’s a very, very old narrative sadly.

Panelist, Ben Huh complained that it might actually cost him money to track down rights holders whose work he is profiting from, how unfair right? Ben says…

“The cost of tracking down the rights owner is a minimum of $300 to $500 [per image]– if you’re successful.

Of course Mr. Huh went on to illustrate his problem in not paying creators in greater detail stating,

I have 23 million images, and I’m one of the smaller [online businesses] out there.

Yeah, what a drag to actually compensate the creators! So in simple math 23 Million multiplied by $500 equals $11.5 trillion dollars. One might determine that perhaps this is not a well thought out business model that requires such vast capital to support it’s inventory, if the cost of that inventory actually requires payment to the creators. Here again we see another internet business supported by advertising that earns revenue on marginal costs, but refuses to pay the creators fair compensation for their labor.

Of course, the site does provide a DMCA link, but we have to wonder how many rights holders are actually using it.


What is clear is that the war on artists and creators which is now over a decade old continues to rage on by those who are profiting. Let’s once again be clear that this discussion is about money. It is about mass scale, enterprise level, commercial businesses profiting from the illegal exploitation of works by artists, photographers, musicians, filmmakers, authors and other creators.

Just for fun, we went over to Mr.Huh’s website Cheezeburger dot com to see why he would be so invested in the battle against artists rights. Well, as it turns out the first two items we saw were the products of well known and beloved mainstream creators (you know, the companies the copyleft hates but can’t seem to live without).

In this first screenshot below we see images from Fox Tv’s “King Of The Hill” show. What we also see is that Toyota, one of the already identified 50 Brands Supporting Music Piracy paying the bills to Mr.Huh. Good work if you can get it, being able to monetize content of a major TV network without the pesky need to ask permission or to share in that advertising revenue.


And, the second post we noticed were images from the Disney Pictures film “Up.” This time with advertising courtesy of Google and AT&T, also previously identified as two more of the 50 Brands Supporting Music Piracy.


And here’s the kicker from the man who doesn’t want to ask permission to monetize creators content for profit… hmmm… hypocrisy much?

(d) Pre-Approval Required. The license described in 1.1(a) above is contingent on you submitting all application-related materials that are requested by the Company and the Company subsequently approving your application. The Company may approve or reject your application in its sole discretion. The approval of your application by the Company shall not constitute an endorsement or legal review of your application.

But wait there’s more…

3. General Use of the Websites — Permissions and Restrictions
Cheezburger hereby grants you a revocable, non-transferable, and non-exclusive permission to access and use the Websites as set forth in these Terms of Service, provided that:
A. You agree not to distribute in any medium any part of the Websites, including but not limited to Content and User Submissions (each as defined below), without Cheezburger’s prior written authorization.
B. You agree not to alter or modify any part of the Websites, including but not limited to Cheezburger’s technologies.
C. You agree not to access User Submissions (defined below) or Content through any technology or means other than any as authorized by this Terms of Service or a written agreement between you and Cheezburger.
D. You agree not to use the Websites for any commercial use without the prior written authorization of Cheezburger. Prohibited commercial uses include, but are not limited to, any of the following actions taken without Cheezburger’s express approval:
1. Sale of access to the Websites, Content or services via another website or medium (such as a mobile application);
2. Use of the Websites, Content or services for the purpose of gaining advertising or subscription revenue;
3. The sale of advertising, on the Websites or any third-party website, targeted to the content of specific User Submissions or the Content;
4. Any use of the Websites, Content, User Submissions or services that Cheezburger finds, in its sole discretion, has the effect of competing with or displacing the market for the Websites, Content or User Submissions.

And it continues to go on from there into another set of rights, and restrictions. Wow. Ok then… well, so much for permissionless innovation afterall…

Derek Khanna is Wrong: Copyleft Mystery Man’s Misleading Memo Creates its Own Myths…

There has been a lot of ink spilled on the retracted and disowned “memo” titled Three Myths of Copyright that was posted on the Republican Study Committee (RSC) website. Notwithstanding the fictional revisionist history of the op-ed the usual suspects are insisting on grand conspiracy theories worthy of a tin foil hat.

For those who are unaware the RSC “memo” was authored by one Hill staffer working at RSC named Derek Khanna.  Shortly after the memo was posted on the RSC website, it appeared nearly simultaneously on several locations in the anti-copyright echo chamber (e.g., Ars Technica’s Tim Lee, Techdirt, etc.).  Within hours of its posting, the “memo” was not only removed by the RSC, but also disavowed by the organization itself.

It’s important to note that Mr. Khanna acknowledged (on Reddit) that he was freelancing–no one asked Mr. Khanna to write the memo.  How he was able to post the memo on the RSC’s website–which would tend to give the memo the imprimatur of the RSC to the casual reader–is anyone’s guess (although someone surely must know).


So if the RSC didn’t request it, we wonder where the inspiration came from as the memo appears to repeat many of the same old tired talking points we see repeatedly in the anti-copyright and tech blogosphere echo chamber. Some may suspect that Khanna could be hoping to earn favor in the corporate sector who have the same goals in seeing artists rights in copyright diminished, but who knows. Perhaps a staffer at the end of his run with the committee tried to shoot a three pointer as the clock was running out?

What is clear however, is that Derek (who is what the lobbyists call a “Covered Legislative Branch Official“) is publicly engaged in communication with several executives at Google–who have one lobbyist for every six members of Congress and is a government contractor.  Mr. Khanna’s public LinkedIn profile says he is currently employed as:

  • Professional Staff: Homeland Security, Defense and Technology at Republican Study Committee

  • Cyber-Security Policy Adviser at DoD Defense Science Board on Cyber-Security

These are clearly areas that Google is interested in–particularly as it is widely rumored that Google is the outside contractor for the National Security Agency’s massive data collection facility at Bluffside, Utah (in Rep. Jason Chaffetz’ district).

William Patry currently serves as senior copyright counsel to Google Inc. Vint Cerf has worked for Google as a Vice President and Chief Internet Evangelist since September 2005.



Not withstanding where the inspiration may have come from for the erroneous memo, perhaps the events are best stated by the fantastic analysis written by Thomas Sydnor II & Debbie Rose titled, “Capitalist Copyrights: A Republican Reply to “Three Myths about Copyright.

“Three Myths claimed that US copyright laws violate “nearly every tenet of laissez fair capitalism” and constitute “corporate welfare” that thwart capitalism, hamper science, stifle libraries, penalize journalism, hurt innovation and consumers, and even conceal Nazis.

The next day, the RSC Executive Director firmly disowned Three Myths. He explained that it had been “published without adequate review within the RSC” and that it violated RSC publication standards because it failed “to provide informative analysis of major policy issues… that accounts for the range of perspectives held by RSC Members and among conservatives….” The stated reasons for the RSC disavowal seemed valid, especially since many Republicans consider copyrights to be one of the many private property rights that encourage private production of valuable goods, services, and books.

But Khanna then undermined the RSC by publicly embracing the just-disowned paper and associating himself with the “tech community” at TechDirt: “I am the author of this memo, and I hope the tech community continues to add to these ideas….” Khanna then appended a link to… TechDirt.

Predictably, “copyright skeptics” erupted in outrage. Skeptics then accused the RSC of disowning the typo-ridden Three Myths—not because it actually was uninformative and biased—but because bad copyright-industry lobbyists must have strong-armed the stronger-armed RSC into suppressing Three Myths because it had spoken truth to power. To assess the validity of such accusations, the quality of the analyses in Three Myths can be tested against the RSC’s standards for publication and external realities—a test that Three Myths fails miserably.

But that’s not the end of it. Slate reported later on that Derek Khanna was separated from the RSC. Of course this wouldn’t be the least bit surprising given the information above (but this also doesn’t appear to be verified either). Don’t shed a tear for Derek, we’re sure he’ll land with some good opportunities, perhaps even at Google?

The fairy tales spun by the young Republican are easily debunked as the facts about Copyright haven’t changed so much as he would like to think otherwise. Scott Cleland makes quick work of refuting the so called myths in his post, “The Copyright Education of Mr. Khanna.” Cleland states,

“Mr. Khanna has obviously and grossly mischaracterized Constitutional first principles, property rights, and free markets beyond recognition.”

The so called myths are completely deconstructed by the amazing and always insightful work of Terry Hart at CopyHype. The two part analysis are titled Republican Study Committee Policy Brief on Copyright: Part 1 and Republican Study Committee Policy Brief on Copyright: Part 2 respectively.

“…any debate or dialogue should begin with sound premises. This policy brief doesn’t. Instead, like an unfortunate strand of copyright skepticism, it runs from reality, rewrites history, and hides from logic.”

What the irrational anti-copyright movement had hoped would give them legitimacy in the form of an endorsement from a major political party has instead had the opposite effect of highlighting the desperate attempts to rewrite history in such a shallow and over reaching way as to invalidate an honest debate or dialog based in facts. No doubt, somewhere out there is basis of Khanna’s “memo” and it’s unlikely that he did little more than parrot the existing talking points of those who rallied around him in the wake of the memo’s demise.

One other quick note about “Who is Derek Khanna anyway?” reveals that this is the same guy who jumped in the fray to start a campaign to get “Joe The Plumber” elected to congress, as the Toledo Free Press reports,

Derek Khanna, a junior and executive political director of the Massachusetts Alliance of College Republicans, and his friend Trevor Lair, the organization’s chairman, have launched a Web site to gather signatures to petition Samuel J. Werzulbacher to challenge Rep. Marcy Kaptur, D-Ohio, in 2010.

Not to mention “Derek Khanna Removed from Student Government Association Senate Meeting” in his school daze.

Final Recap, News and Last Links of 2012…

Grab the coffee!

Recent Posts:
* What Can Songwriters Do: Copyright Office Comment Period Ends Today for Mechanical Royalty Statements of Account
* The Return of Orphan Works: A Review of the 2008 Shawn Bentley Orphan Works Act Part 1
* Ending Decade Old Arguments : How the Promise of the Internet has Failed Artists and Musicians…
* Billy Corgan Exploited By… Citi Bank, AT&T, Target, Virgin Atlantic, Mazda, Neiman Marcus, Musicians Friend, Hertz, BMW, Audi, Boston Market, Urban Outfitters, Williams Sonoma
* Songwriter comments on Section 115 Rulemaking
* FTC Treats Google With Kid Gloves and No Transparency
* Fair Pay for Air Play, Terrestrial Radio Performance Royalties for Musicians
* The Piracy-Pandora Connection: Can the Super Bowl, Oscars and Grammys Move the Needle on Brand Supported Piracy?
* The Return of Orphan Works: Trojan Horse: Orphan Works and the War on Authors by Brad Holland


Seattle Weekly:
* It’s Time for Artists to Fight Piracy as Vigorously as They’ve Challenged Pandora

“…it’s time for artists to band together to set the story straight. Don’t leave it to the few brave enough to speak strongly on the matter. There needs to be a large, coordinated effort by bands big and small to tell their story–to sign a letter to fans explaining how devastating piracy is to their ability to make music for a living (or at all).”

Vox Indie:
* IP and Instagram–a Teaching Moment Perhaps?
* Should More Artists Speak Out Against Piracy?
* Creative Commons Celebrates 10 Years

CNN Money:
* Instagram can now sell your photos for ads
* Instagram says it won’t sell your photos to advertisers

* Freeloading: How Our Insatiable Hunger for Free Content Starves Creativity, by Chris Ruen

The Guardian UK:
* Intellectual property crime unit to be set up by City police

Torrent Freak:
* U.S. and Russia Announce Online Piracy Crackdown Agreement
* Anti-Piracy Chief Patents “Pay Up or Disconnect” Scheme

* “T-Shirts and Touring” as Revenue for Artists just took a left Turn (YOLO)

Brian Pickings:
* The Best Music Books of 2012

Digital Music News:
* 10 People That Totally Changed the Industry In 2012…

(11) Oh, there’s one more guy…In one fiery and insanely-viral post, performer and professor David Lowery somehow managed to reframe the entire debate over technology, piracy, and the plight of the artist. And, draw attention from seemingly every corner of both the tech and creative communities. It was the biggest post of the year for the music industry, and potentially, the start of a very different type of discussion in 2013.

* Major Label Lobbying vs. Google Lobbying, 2012…
* The State of Music Subscription, December, 2012…
* USC Is Now Researching the Amount of Advertising Flowing Into Pirate Sites…
* Google Exec: If You Really Want to Kill Piracy, Then Kill the Advertisers Who Support It…

Ad Land:
* Senate passes a resolution asking to drop adult classifieds
* Adland booted from Google Adsense due to PETA’s misogynist ads

Copyright Alliance:
* Capitalist Copyrights: A Republican Reply to “Three Myths about Copyright”
* MUSIC Act introduced
* YouTube Moves for Safe Harbor Against Viacom

Daily Dot:
* YouTube strips Universal and Sony of 2 billion fake views

The Cynical Musician:
* Copyright and Scarcity