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Copyright and the Mouse
Those who know me well know that one of the weird topics that I am infinitely interested in is copyright, much to the displeasure of every lawyer I have ever met.It is an endless pit of edge cases and weird. Naturally, when the overly on Twitter parts of the right decided to wage this month’s episode of the culture war with Disney and place copyright at the center of their demands, I was ecstatic. I finally found a way to talk about copyright at a time when people were semi-interested in the subject.
Why are they fighting with the Mouse™?
In Flordia, the GOP has decided to return to its culture war roots and target LGBT people. The law, officially titled “Parental Rights in Education Act” and colloquially known as the “Don’t Say Gay Bill”, is too vague to figure out exactly what it is going to do. Proponents and opponents oscillate wildly between the bill doing either “nothing”, “stopping un-age appropriate sex education”, “forcing LGBT teachers back into the closet”, or “preventing the ‘grooming’ of young children”. Since the bill opens up liability to schools and creates private causes of action, the actual changes in education will probably be different between Miami and more rural parts of the state depending on a variety of factors.
Disney was initially neutral on the law, but its stance shifted after pressure from consumers and staff. On March 28th, it promised to work to repeal the law or help fund lawsuits against it. This angered the right and set up the current culture war fight. Ron DeSantis has vowed to end Disney’s special and weird status where it acts as if it is its own county. This is an example of doing good policy for bad reasons. The Reedy Creek Improvement District is a travesty of public policy that lets Disney do pretty much whatever it wants while paying minimal taxes.
In a mixture of classic moral panics such as “all gay men are paedophiles” and “Satanists are abusing children at preschool”, the overly online set has decided to accuse Disney of grooming children. This is a classic case of false equivalency. What abusers do and LGBT folks existing in a movie or TV show are by no means the same. But this is to be expected. Paedophiles along with terrorists, drug dealers, and members of organized crime are classic levers to move the public against any topic. To remedy this situation, the overly on Twitter cadre has decided that copyright either needs to be shortened or not extended. Like with DeSantis, the latter of these two is an example of good policy for bad reasons. But, it is worth digging into both.
Article I, Section 8, Clause 8 of the US Constitution gives Congress the ability to set up a regulatory regime to protect intellectual property:
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 only catch is that these rights can not be forever. To circumvent this, Congress has extended copyright a number of times; most recently with the 1998 Sonny Bono Copyright Term Extension Act. The Supreme Court held in Eldred v. Ashcroft that the extension was valid. This raises an obvious question: If Congress can extend copyright, can it shorten it?
The answer is probably no. I say probably because there are a few narrow paths to argue that shortening copyright is legal and the Supreme Court sometimes does seemingly random things based on who is on it at the moment. If you want the full legal argument, take a look at “Copyright Reform and the Takings Clause”, a 2015 note in the Harvard Law Review.
For people who don’t want to read a law review article, here is the tl;dr. The 5th amendment allows for two ways that the government can take property from someone: as a punishment for a crime and via eminent domain after the owner is given the fair market value. Lawyers call the latter a taking.
Since copyright earns rightsholders money and acts like real property in transactions, shortening copyright and freeing a cache of works from copyright protection is probably a taking. Therefore, the government either needs to give the owners fair market value or is prohibited from removing those protections. The fair market value of the copyright of an unknowable number of works needs to be judged one at a time, so it would take a large amount of time to try to compensate each owner. The financial exposure for the government removing the protections without doing the leg work is nearly infinite.
As I mentioned above, copyright in the United States has to be for a limited length of time. The way the US has approached this is to extend the length of copyright protection for works created in the late-1920s and later twice (1976 and 1998). If you know your Disney history, 1928 was the first appearance of Mickey Mouse in Steamboat Willie. If nothing changes, it will enter the public domain in 2024.
In my opinion, based on my conversations with free culture activists, think-tankers, and hill staffers over the past 5 years, another copyright extension is not in the cards. One of the very few things that could get the band back together to run back the SOPA-PIPA protests, which scarred a generation of hill staffers and members of congress, is a third copyright extension. The grassroots groups, media, big tech companies, and smaller tech firms are all united against a longer copyright term. It is also not seen as something that is politically possible after tranches of works entered the public domain in 2019, 2020, 2021, and 2022. While I am sure Rufo will take a victory lap in 2024, it is going to happen because of decades of work from activists not a flash in the pan culture war fight.
The maps I scanned at the Library of Congress have been georeferenced! Off to work on them.
On Tuesday, April 12 from 20:00 to 23:00 (Copenhagen time) I am leading an Interintellect salon about how maps are not as truthful as we oftentimes believe and how that trust is weaponized. The discussion with start from two chapters of How to Lie With Maps: War and Propaganda. I think it will be a fun evening of deconstructing what we know about maps and trying to cope with our cognitive biases. Tickets are 10 USD (68 DKK; 9 Euro).
Interintellect salons are a special type of discussion forum where experts and laypeople can discuss important issues together in a safe environment. If you have never heard of the Interintellect salon, check out their Five Rules of Gathering. I am a long-time salon attender, but a first-time host.
Mollie Hemingway tested out this tool against Mitt Romney last week when he symbolically voted to confirm Ketanji Brown Jackson to the Supreme Court.
I am not a lawyer and have never been to law school. Don’t take anything here as a mildly good idea without talking to a lawyer first.