The mouse who would be king

Disney's ever-expanding copyright powers are threatening to squash everyone's cultural creativity. As two new books compellingly argue, the time is ripe for more anarchy, and fewer lawyers.

Topics: Disney, Copyright, Intellectual Property,

The mouse who would be king

It’s become fashionable lately to vilify Mickey Mouse. So much money and power have been invested in the otherwise innocent-looking, squeaky-voiced cartoon character that he no longer is, for many of us, just a drawing. Mickey is, instead, The Man, the symbol of a global entertainment behemoth bent on remaking our world to its own ends. Parents worry that Mickey will corrupt their children. Foreigners worry he’ll corrupt their culture. And the most persistent claim these days is that Mickey is corrupting our Constitution: In order to protect Mickey Mouse and his cartoonish brethren — not just Minnie and Pluto but also Britney and Eminem — from the scourge of digital technology, this argument goes, the entertainment industry is clamping down on our freedoms to create, innovate and speak.

The Mickey-as-Machiavelli theory has been promoted most aggressively by Lawrence Lessig, a constitutional scholar at Stanford Law School. Lessig is a brilliant and eloquent opponent of the entertainment industry’s strong hand, and his fight is certainly broader than one cartoon rodent; still, Lessig clearly has Mickey on the brain. In 2002, Lessig led a constitutional challenge to the Sonny Bono Copyright Term Extension Act, the 1998 law Congress passed to extend copyright terms just as Mickey was about to enter the public domain. Lessig called it the “Mickey Mouse Protection Act”; his rallying cry was “Free Mickey!” But in court, Mickey beat Lessig. In a 7-to-2 ruling handed down last year, the Supreme Court let the copyright extensions stand. Mickey would not be freed.

Considering his very public battles with Mickey, you’d expect Lessig to harbor a genuine animus toward the lovable rodent. But what emerges in “Free Culture,” Lessig’s latest book, is just the opposite: Lessig expresses surprising admiration for Mickey. You might even say that Lessig loves Mickey — or, at least, he loves how Mickey came to be. While Mickey may stand today as a symbol for all that is wrong with American copyright law, Lessig points out that he also serves as a powerful argument for all that was once right with the law. The mouse, who became popular as a parody of — or homage to — Buster Keaton, and whose creator was influenced by just about every icon of his day, is a testament to free culture. But a mouse like him could not come to be in today’s restrictive climate, Lessig argues. And, worse, an even better Mickey Mouse — some unimagined, perhaps yet unimaginable creation, inspired by Mickey but so much cooler — is out of the question.

“Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity” is, for this argument, a depressing book. Over the past half-century, the copyright powers owned by creators have grown enormously in duration, scope, reach and force. Lessig chronicles the creeping expansion, and he concludes that because of the powers granted to authors by the law and by technology, “Never in our history have fewer had a legal right to control more of the development of our culture than now.” The book can thus be read as a kind of eulogy for Mickey Mouse. While the cartoon character might still live on, protected by a cadre of lobbyists who descend on Washington every time his legal status is threatened, the ideas Mickey embodies — the power of creativity, the freedom to create — face an uncertain future.

How can copyright law, a legal mechanism that was meant to foster creativity, stifle art? The reason is that the world’s current copyright regime, as Lessig sees it, has lost all sense of balance. Entertainment firms and their defenders think of “intellectual property” as actual, physical property. Disney thinks of Mickey as a real asset, not different, in the legal sense, from a factory. But Mickey Mouse is not a factory — he is art. And giving intellectual property the same legal status as physical property — giving art the same status as a factory — is, Lessig writes, “historically … absolutely wrong. They have never been the same. And they should never be the same, because, however counterintuitive this may seem, to make them the same would be to fundamentally weaken the opportunity for new creators to create. Creativity depends upon the owners of creativity having less than perfect control.”

Creativity depends, in other words, on some measure of anarchy — a lack of control. This is the point that Siva Vaidhyanathan, a professor of communications studies at New York University, makes in his new book, “The Anarchist in the Library: How the Clash Between Freedom and Control Is Hacking the Real World and Crashing the System.” Vaidhyanathan, who observes the debate over copyright from the point of view of political philosophy rather than the more pragmatic terrain of constitutional law, thinks of culture as an “anarchic” force. Creativity depends on a dearth of rules; a healthy culture needs a suppression of oligarchs. “Culture builds itself without leaders,” Vaidhyanathan writes. “Culture proliferates itself through consensus and revision. Culture works best when there is minimal authority and guidance.” To Vaidhyanathan, anarchy, as a force, ought to be more highly prized in society. We should not live as anarchists — anarchy “has its limits as a governing tool,” Vaidhyanathan concedes — but we ought to at least try to seek a balance between the anarchists and the oligarchs, a balance that Vaidhyanathan believes is now hard to find.

Lessig and Vaidhyanathan each offer compelling views of the controversies surrounding the control of information — of culture, really — in the digital age, though Lessig’s is the more accessible work. His writing is immediate, and his argument, in its methodical reliance on law and the legal tradition, becomes, in the end, unassailable. Vaidhyanathan’s book is loftier; the author intends not just to untangle the current debates on media but also to examine how these debates might affect other fights over information control — the debate over secrecy and privacy in the war on terrorism, say, or questions of intellectual property surrounding biotechnology. It is an ambitious effort, and mostly engaging. There are times, however, where Vaidhyanathan slips into frustrating academese: His point, made at some length, about the Diogenic — as opposed to the Costanzan — cynicism embodied in cyberspace is, on the whole, probably not necessary.

It is difficult to read either of these books without worrying that the authors have already lost the fight. While Vaidhyanathan calls for “modesty and patience,” a House panel votes to criminalize peer-to-peer trading. While Lessig endorses a reasonable remake of the copyright rules, the Senate’s leading Republicans and Democrats call for the full force of the Justice Department to come to the aid of ailing entertainment giants.

It may be obvious, as Lessig and Vaidhyanathan argue, that culture thrives on anarchy. But it doesn’t look like the oligarchs are going to make way for anarchy anytime soon.

It’s probably not much of a stretch to say that the cartoon character we know as Mickey Mouse was born one Sunday in April 1900, when a Welsh-American railroad engineer who called himself Cayce Jones crashed his passenger train, the Cannonball Express, into the caboose of a freight line that had been mistakenly left on a length of track near Vaughan, Miss. Cayce Jones died that afternoon, but his fireman, Sim Webb, survived the accident, and he wrote a song to commemorate the perished engineer.

You could call Sim Webb’s ballad the first piece in the puzzle that is Mickey Mouse. Along the Mississippi rails, Webb’s song became a popular tune, and in 1909, two Vaudeville songwriters, T. Lawrence Seibert and Eddie Newton, published their own version, “Casey Jones (The Brave Engineer).” It was an instant hit. Indeed, “Casey Jones” was so popular that the year after it was released, the songwriting team of Ren Shields and the Leighton Brothers attempted to capitalize on Seibert and Newton’s success by releasing what we might today call a “remix” — “Steamboat Bill,” a fast-paced ditty that substituted a steamboat pilot in place of a railroad engineer.

The route from Cayce Jones to Mickey Mouse took a few more turns: In 1928, Buster Keaton produced his last independent silent movie — “Steamboat Bill, Jr.,” a story that was at least partly inspired by the 1910 song. The film, which has been called one of Keaton’s greatest works, did well, catching the eye of Walt Disney, an accomplished silent animator and a fan of Keaton’s. By then, Disney had already conceived of his bubble-drawn cartoon mouse (Mickey’s first film, a silent short called “Plane Crazy,” had not been well received). Disney saw potential for his mouse in the Keaton story, and in the song that inspired it. Short of cash, the animator staked his one prized possession — his Moon roadster — on an idea featuring Mickey as a steamboat pilot, a kind of parody of Keaton’s film. It would be Disney’s first talkie, with Mickey whistling the tune from “Steamboat Bill” as he drove his barge down the river. Disney called it “Steamboat Willie.” The short debuted on Nov. 18, 1928, at the Colony Theater in New York. It was a blockbuster, and Mickey Mouse was born.

This is how culture is made. In 1900, there’s a crash on a rail line in Mississippi; 28 years later, after an anarchic, serendipitous process, one in which each new work feeds the next, you have a new star. Lessig, who retells part of this story in “Free Culture,” notes that the process does not detract from the achievement of Walt Disney; of course, Mickey Mouse was cooked up in the mind of Walt Disney. But the mind of Walt Disney was a sordid thing, polluted by Buster Keaton, “Steamboat Bill,” “Casey Jones,” “The Jazz Singer” (the first talkie), and countless other cultural mementos. To produce “Steamboat Willie,” Walt Disney did what creators in a free culture do, by nature — he “ripped creativity from the culture around him, mixed that creativity with his own extraordinary talent, and then burned that mix into the soul of his culture,” Lessig writes. “Rip, mix, and burn.”

This seems a fairly incontrovertible point; we all know that creative people depend on the past to build new works — and that Disney, in particular, has profited from the earlier works of others. Walt Disney made his fortune retelling Brothers Grimm fairy tales in a modern medium. This was, Lessig says, a brilliant bit of creativity. Disney took the sour old stories and, “without removing the elements of fear and danger altogether, he made funny what was dark and injected a genuine emotion of compassion where before there was fear.” He, or his company, made retelling stories the main business; the list of previous works that Disney remade into stories of its own is staggering: Besides Mickey, there was “Snow White,” “Fantasia,” “Pinocchio,” “Dumbo,” “Bambi,” “Song of the South,” “Cinderella,” “Alice in Wonderland,” “Robin Hood,” “Peter Pan,” “Lady and the Tramp,” “Mulan,” “Sleeping Beauty,” “101 Dalmatians,” “The Sword in the Stone,” “The Jungle Book” and “Treasure Planet.”

Lessig has been criticized by some for reproducing this list; it’s been pointed out that Disney paid for the rights of much of the material it reused, even for the 1910 recording of “Steamboat Bill.” If Disney can pay for the rights to reuse work, why can’t everybody else?

But the criticism misses Lessig’s point, which is that the law has greatly expanded the kinds of “reuses” that artists need to pay for. The right to create something new from something old — what some people might call the right to be inspired — is now an expensive, over-lawyered venture. This might not hurt the Disney company, but it sure hurts the rest of us. While Disney benefited from the borrowing of previous works, the company now denies us the right to borrow from it. It has slapped together layers of law and code to tightly pin down what Lessig calls “Walt Disney Creativity” — “a form of expression and genius that builds upon the culture around us and makes it something different.”

The United States’ first copyright law, which Congress enacted in 1790, allowed copyrights to last for 14 years, renewable once for another 14. That was probably a good enough rule, as the “commercial life” of most creative work is only a couple of years, Lessig points out. But since 1962, Congress has extended the term for existing copyrights 11 times, and twice for future copyrights. A copyright now lasts as long as the author’s life plus 70 years; at Mickey Mouse’s birth, the maximum term was 56 years. But copyrights have not only grown longer, they also protect more works. The first rules covered only “maps, charts, and books,” and parties seeking the protection of copyright were required to register works. Today, a copyright is automatically granted for any conceivable form of creative work; there is no formal process — your doodles, and all the “derivative works” of your doodles, are protected by copyright, whether you seek the protection or not.

In the digital world, the law’s reach has also grown. Since copyright law regulates copies of creative works, it rarely came up for physical works. “Think about a book in real space,” Lessig writes. “Most uses are unregulated by copyright law, because the uses don’t create a copy. If you read a book, that act is not regulated by copyright law. If you give someone the book, that act is not regulated by copyright law. If you resell a book, that act is not regulated.” But on the Internet, every act creates a copy; in the digital world, reading a book, giving away a book, reselling a book, they all create copies, and they are therefore all regulated by copyright law. “Before the Internet, if you purchased a book and read it ten times, there would be no plausible copyright-related argument that a copyright owner could make to control the use of that book. Copyright law would have nothing to say about whether you read the book once, ten times, or every night before you went to bed … But the same book as an e-book is effectively governed by a different set of rules. Now if the copyright owner says you may read the book only once or only once a month, then copyright law would aid the copyright owner in exercising this degree of control …”

But that’s not even the crazy part. What’s really crazy about this hyperextension of copyright law is that, even in cases where it’s misapplied, it is protected by a layer of code — copy-protection schemes that the law has deemed inviolable. Humans aren’t enforcing the rules over how art can be used — machines are. If a firm decides to protect a digital movie under a restrictive digital rights management scheme, it is illegal under a law like the Digital Millennium Copyright Act to “circumvent” that scheme even if you plan to use the underlying movie in a completely legal way. Mickey may one day enter the public domain, but if Disney protects him with DRM, he won’t really be free. “This is how code becomes law,” Lessig writes. “Code becomes law; code extends law; code thus extends the control copyright owners effect.”

You might not think this structure is so evil; it may seem natural to you that authors deserve to aggressively control their works. Maybe you agree with the late Sonny Bono that “copyrights should be forever.” It is, after all, their work — how can it hurt the rest of us if creators keep it out of the public domain?

And, indeed, neither author offers any firm way to measure how the restrictive regime is harming us now, and how it may harm us in the future. But that’s because there is no way to measure this harm: How can you count the number of works never attempted because authors fear the costs of tangling with copyright lawyers? How can you foresee the kinds of revolutionary technologies — such as, for instance, peer-to-peer file trading, or digital video recorders — that may never come about in today’s climate?

But there is much anecdotal evidence pointing to great harm ahead. There is the story of Alice Randall, the African-American author of “The Wind Done Gone,” a retelling, from a different point of view, of Margaret Mitchell’s “Gone With the Wind.” Mitchell’s estate tried to block Randall’s book from the shelves, and a court allowed her to sell it only after her attorneys — at great expense — convinced the judge of something that is pretty obviously false: that “The Wind Done Gone” is a “parody,” which is about the only kind of “derivative work” protected under the law. The ruling was an “anomaly,” Vaidhyanathan writes; under strict application of the law, Randall’s book, which did not criticize “Gone With the Wind” for comic effect, should not have been deemed a parody. It should not have been published at all.

Think about that: Under the law, a writer is prohibited from including in her new work the plot and characters from a work published 68 years ago. Randall barely escaped this law — but how many authors will spend years writing such a book for fear it will never be published?

The problem is more acute in the electronic age. Both Lessig and Vaidhyanathan extol the idea of “digital libraries” — collections of all kinds of media (books, movies, sound recordings) that would be available to anyone, like a city’s public library on a massive scale. Such a “perfect library,” Vaidhyanathan writes, “might have some powerful positive effects on the world. There would be no information monopolies. Everyone would have equal access to facts and poems, techniques and tirades. Citizens of all nations could test their government’s claims against other sources. If the perfect library’s indexing system became the main source of what we want to know about the world, CNN or Fox would have no advantage over small newspapers in Ghana or radio stations in Quebec. We might live in a world with diversity of thought and culture, a true free market of ideas. The perfect library could be a powerful resource for the expansion and enrichment of democracy.”

But such libraries are nearly impossible to create today. While a real-world public library is not regulated by copyright law — books and movies and songs can be borrowed without being copied — an Internet library would face enormous regulation. Lessig writes: “Every step of producing this digital archive of our culture infringes on the exclusive right of copyright. To digitize a book is to copy it. To do that requires permission of the copyright owner. The same with music, film, or any other aspect of our culture protected by copyright. The effort to make these things available to history, or to researchers, or to those who just want to explore, is now inhibited by a set of rules that were written for a radically different context.”

Neither Lessig nor Vaidhyanathan offer much hope to those seeking a change in the rules. Lessig offers a set of new rules that seem like a reasonable balance between anarchy and oligarchy — and, for their very reasonableness, appear destined to fail in the current climate. We live in extreme times: Congressmen have actually proposed laws to allow copyright owners to hack peer-to-peer networks.

The only thing that can save us now, the authors seem to say, is the artists themselves. Creators have got to realize that the current rules do more harm than good. Lessig’s Creative Commons project offers creators a host of common-sensical licenses under which to release their work — a license that protects the full work but permits sampling, for instance, or one that allows further reuse for educational purposes. For authors, publishing under such licenses will require some bravery. There is great comfort in knowing your work will never be corrupted by others; letting go of that control might be difficult, even if you know it will help the culture thrive.

And even if you’d like to set your work free, your publisher may not allow it. The two books are instructive on this point: Lessig managed to get his publisher, Penguin Press, to release the book under a Creative Commons license that allows redistribution on the Internet. Vaidhyanathan was not so successful; his publisher, Basic Books, released the book under a traditional copyright.

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