Thursday, November 5, 2009

A Philosophical Foundation of Property, The U.S., and Mickey Mouse

(This post is for extra credit)

I like to think that the first concrete philosophy of property that has a strong relationship to the United States is John Locke's in his
Second Treatise (1689). Locke says that since we (each individual) owns his/her own body then the individual owns whatever s/he creates with/using his/her body. He says in his Second Treatise that people have the right to "life, liberty, and property". That is, since we own our life, we have liberty to do things, and we own what we make (as illustrated above). (Jefferson, in the Declaration, says that we have rights to "life, liberty, and the pursuit of happiness". He changed Locke's last right because he probably knew a new government would have to tax property. But, a pursuit of happiness can still be a product or intellectual creation.)

The Constitution says, "The Congress shall have Power 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..." (A1, S1, C8, emphasis added). This is known as the Patent and Copyright Clause. Originally (...originalism...), it was scribbled into the Constitution to provide a uniform national standard of intellectual property regulation; "The utility of this power will scarcely be questioned," (Madison, Federalist 43).

Here is a brief sketch of the United States' copyright law as of 1998: if someone publishes a work in tangible form, then this work cannot be reproduced without permission for as long as the creator lives plus seventy years; or, if the work is of corporate authorship, then the work is under copyright for 95 years after its publication or 120 years after creation, whichever endpoint comes sooner.

Chris Springman in 2002: "Back in 1998, representatives of the Walt Disney Company came to Washington looking for help. Disney's copyright on Mickey Mouse, who made his screen debut in the 1928 cartoon short 'Steamboat Willie' was due to expire in 2003, and Disney's rights to Pluto, Goofy and Donald Duck were to expire a few years later.Rather than allow Mickey and friends to enter the public domain, Disney and its friends - a group of Hollywood studios, music labels, and PACs representing content owners - told Congress that they wanted an extension bill passed.Prompted perhaps by the Disney group's lavish donations of campaign cash - more than $6.3 million in 1997-98, according to the nonprofit Center for Responsive Politics- Congress passed and President Clinton signed the Sonny Bono Copyright Term Extension Act [which extended copyrights to 70yrs after death or 95/120].

"So far so good - as far as Disney and its friends were concerned, at least. In 1999, a group of plaintiffs led by Eric Eldred, whose Eldritch Press offers free on-line access to public domain works, filed a challenge to the statue. Eldred argues that the CTEA is unconstitutional on two grounds: first, because the statute exceeds Congress's power under the Copyright Clause; and, second, because the statute runs afoul of the First Amendment by substantially burdening speech without advancing any important governmental interest. Eldred lost before the district court and the D.C. Circuit. However, there is good reason to believe that he may yet prevail in the Supreme Court."

This would not be the case. The Supreme Court affirmed the D.C. court's ruling by a vote of 7-2 in 2003. SCOTUS held that the Sonny Bono Copyright Term Extension Act's 20-year extension does not violate the Copyright Clause (i.e. "...for limited times..."). This seems paradoxical, however: if a certain amount of time is set to expire in the future, and it is impossible for that expiration date to ever take place, then...
So, Mickey Mouse will not become a part of the public domain until sometime after 2019. But his tenure as private property might again be extended.

It seems like copyright law has been bent in favor of large corporations like Disney--perhaps in contradiction to what Locke meant by property, and by what Madison meant by utility.

-Stefan Larson

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