Suing Mickey and Friends
On October 9, the U.S. Supreme Court heard oral arguments in the case of Eldred v. Ashcroft, which challenges the constitutionality of the Sonny Bono Copyright Term Extension Act (CTEA) of 1998–a genuine Mickey Mouse Law, tailor-made for the Disney Corporation. CTEA, named for the late singer-turned-Congressman, extended copyright protection by 20 years (retroactively and prospectively), sharply limiting the amount of material in the public domain that is available to artists, consumers, and publishers. It was passed quickly and unanimously, without so much as a hearing or discussion. But in the years since, a growing number of artists, intellectuals and internet aficionados, led by Stanford University law professor Lawrence Lessig, who argued the case before the Supreme Court, have decried the Act as nothing short of a bald-faced attempt by media giants to bribe Congress and control artistic expression. Large copyright owners, like Disney and AOL Time Warner, say CTEA simply protects their private property. Those challenging the law include the National Writers Union, Intel Corporation, and the Cato Institute, who wonder if Beethoven and Shakespeare have been in the public domain for centuries, why not Mickey Mouse? The Supreme Court’s decision to hear the case has brought the debate from the fringes to the mainstream. Recently the Observer spoke with Eric Eldred, an Internet publisher and the lead plaintiff in the case, by phone. Excerpts follow:
Texas Observer: What does Eldritch Press do?
Eric Eldred: I take old books in the public domain, scan them, and put them online. I think it is an amazing thing that it is now possible to make available so many interesting works, both famous and obscure, to anyone in the world. You don’t have to go down to the library to get them, or wait for inter-library loan. They are just a mouse click away.
Eldritch Press started as an experiment. I wanted to see if people would actually download entire books and read them online. And the response has been really incredible – I get about 45,000 hits a day, and from almost every country that is connected to the internet. It may seem unnecessary to some Americans, who have access to a public library, but in many countries, Eldritch Press is the only way to access these books. It has always been my goal to use technology to make books more accessible, and not just for people in other countries. Blind readers download books from Eldritch, and then use a text to speech synthesizer, and have these books read out loud to them.
TO: How did the Copyright Term Extension Act affect your work?
EE: I go through the copyright records myself, looking for books entering the public domain every year. Well, the Copyright Term Extension Act acts like a dam; it stops anything new from entering the public domain for the next 20 years. There are thousands of works from ’20s and ’30s that I can’t access now. Some are, of course, famous and commercially valuable, but many others have never even been reprinted. These are works that most people don’t know about, but would be worth putting online for a few interested readers.
Another plaintiff in the case puts older films online for the public to use. This law has a particularly destructive effect on older films, because the medium is so fragile. There are many orphaned films just crumbling away in vaults. Historians or artists might be interested in restoring them, but won’t touch them because they are still under copyright and could be sued for displaying them. The government claims the opposite – that the Copyright Term Extension Act helps preserve films, because they are still valuable to the owners. But look at the evidence. We haven’t seen a movement to restore older films since the law was passed. Quite the opposite! A few works have commercial value, and corporations will preserve those. If they can’t make money doing it, they won’t. Other people would be interested in preserving and using these films for noncommercial reasons, and they should be free to do that.
TO: Why is the Copyright Term Extension Act unconstitutional?
EE: The constitution allows Congress to bestow copyrights for a limited period of time. In 1790, when the first copyright law was passed, that meant artists could apply for a copyright of fourteen years, with the option to renew the copyright for an additional fourteen. In the past 20 years, Congress increased that a dozen times or so, retroactively extending the copyright term to the point it is at now: copyrights are automatically granted for the life of the author plus 75 years for an individual, or life of the author plus 95 years for works for hire. (These are works commissioned by a corporation–for instance, Disney characters.) It seems that the phrase “limited time” simply doesn’t apply to the copyright laws that Congress passes. Instead, if a huge corporation is about to lose a valuable copyright, they just lobby Congress into extending it. The large conglomerates win, and the public loses. So we hope to restore the delicate balance between copyright owners and the public.
We are also saying the law violates the first amendment, the right to free speech. I have a right to publish these works because they are entering the public domain. Congress extension of the copyright term prevents me from doing that, so they have suppressed my free speech.
TO: Who was behind the passage of the Copyright Term Extension Act?
EE: The first Mickey Mouse film, Steamboat Willie, was produced in 1927, and was about to go into the public domain. That made Disney very nervous. Michael Eisner, Disney’s CEO, went to Congress and started giving big contributions to the right people, the heads of the various committees, etc. In October of 1998, the house was debating whether to impeach Clinton. On the eve of the impeachment vote, they had needed to get some other bills out of the way, including the Copyright Term Extension Act. So they pulled this out of committee and passed it quickly, without a quorum, and without a single hearing. There hasn’t been a hearing on copyrights for years; it has been under the radar screen.
The large copyright owners like to use the threat of piracy to justify complete control. But that is just an excuse. They want complete control over how consumers use their works because it gives them a monopoly on artistic expression. With perfect control, they can rent out their products to us as pay-per-view forever. This is in direct opposition to what the Founding Fathers intended when they granted the first copyrights. The idea was to reward a creator for publishing a work, but then allowing for it to go into the public domain, and be available for other artists to make derivative works.
This is an essential right in a true democracy. Every generation needs to revisit and reinterpret the works of previous generations. Most works are, in one way or another, the reworking of a previously existing work. It is very, very rare that something is completely original. It is especially ironic that Disney has made a couple of dozen films from stories in the public domain — Pinocchio, Snow White, Cinderella. They didn’t pay a penny for those stories. Disney is the master of reinterpreting old works for a contemporary audience, and now they want to stop others from doing the same. They are living proof that a strong public domain helps creativity and innovation.
TO: How will the law change if you win your case?
EE: We are only asking that the Copyright Term Extension Act be overturned, which would return copyright terms to what they were in 1997: 50 years and 75 years for works for hire. If the court gives a strong ruling stating that extended copyrights retroactively is unconstitutional, then a few other previous acts of Congress would also fall, and further shorten copyright terms.
Personally, I am not convinced that the copyright law should ever have been extended beyond the 28-year maximum created by Congress in 1790. The problem is right now the system doesn’t provide for registration and renewal. If you create something, it is automatically copyrighted the next hundred years or so, whether you intend to make money on it or not. There has to be some sort of system for renewal, so that these works don’t just sit in somebody’s vault forever, unused. If artists don’t renew their copyrights, then somebody else gets the chance to use it. At this point, with the rapid advancement of art and writing across the internet, and the rapid advance of all kinds of digital creations, it seems to me that locking works up for 95 years is just ridiculous. My lawyer Larry Lessig has presented the idea that copyrights should last five years, with the option to renew a limited number of times.
TO: How do you expect the Supreme Court will rule?
EE: I am optimistic, but it is difficult to predict. This is what is known as a case of first impression. No one has challenged the copyright act in this way before. But just because no one else has bothered to contest it before, doesn’t mean they won’t rule in our favor. They agreed to hear it.
This court is known to be rather conservative, but this case really transcends political paradigms. The people who believe in a literal reading of constitution, who tend to be conservative, clearly support us. If you look at the intent of the Founding Fathers, then the facts are on our side. Jefferson was against the ideas of monopolies in ownership, and had to be persuaded to grant copyrights. He ultimately felt that the wording of the constitution and the first amendment would effectively limit that monopoly. Madison too. We have a lot of constitutional historians writing briefs for us, and the other side doesn’t have any of that. At the same time, I think our case appeals to liberals who are tired of a corrupt Congress that bows to the wishes of giant media conglomerates.
I think the court could very well decide in our favor. But even if we don’t win in court, we will have succeeded in sparking a dialogue about copyrights in this country. That is a big first step.
Michael May is a writer in Austin. Eldritch Press can be found at www.eldritchpress.org