Mickey Mouse vs. The People

Bjorklund: It's little known that [copyright infringement] has now become a criminal act, due to the Digital Millennium Copyright Act. That actually criminalized it. It used to be almost exclusively a civil issue; someone had to find out that you were reprinting grandma's book and the most normal remedy -- especially if not a lot of profit was being made from it -- was to cease publication and repay royalties due.

Eldred: What's happening is that the copyright owners are trying to use technology to control all sorts of uses, even uses that would be considered fair before.

The content companies argue that an extension of copyright gives people more of an incentive to create new works.

Bjorklund: Well, there was no big boom in creativity the day after this law was passed, or even a couple years after the law was passed. The 70-year extension covers your lifetime and your children's lifetime. How much difference does it make to you, if you're [already] going to be getting the royalties and children are going to be getting your royalties and your grandchildren, too?

Eldred: We actually went to the trouble of getting an amicus brief from Hal Varian who's a professor of economics at Berkeley, and he made the calculations and found that it would only be a few cents difference in royalties between 50 years after an author died, which is how the law has been since 1978, and 70 years after the author died.

Bjorklund: In addition, I keep coming back to this: Most works that have been created out there are not valuable. They're being created because people want to create them, not because they hope to become incredibly wealthy. This law doesn't address the 90 percent of all the stuff that's being published.

Eldred: Works today have about five to seven years maximum before they run out of steam, making any royalties for the author.

But it's possible to imagine a scenario in which an out-of-print novel is picked up by Steven Spielberg or Steven Soderbergh and turned into a blockbuster movie, which in turn makes the book a bestseller. The earnings in that case would go not to the child or grandchild of the author but rather the studios, actors and director. Is that fair?

Bjorklund: I just cannot see that extra 20 years as being significant to the creator. It would be a shame for this kind of thing to happen, but in fact, businesses often do negotiate payments if there are existing estates, even if the work is in the public domain. So it's not like the major studios would wait until the copyright expires and snag a work with no payment.

Eldred: The short answer is that the big publishers would like to hide behind the authors and claim that they're representing their interests but they're really not; it's just not true. What the Internet shows if it shows anything is that it's not necessary to have strong copyright in order for great things to happen.

The Internet was not subject to patents or copyright or strong intellectual property at all -- and yet, it came about. The publishers are trying to take over the Internet, all this free stuff that we built, and make it pay-per-view. And they need to own the content to do that.

Bjorklund: But to answer your question quickly, even if you're talking about lots of authors' great-grandchildren losing out on money, it's still worth it to get work into the public domain. It's a necessity that was foreseen by the founding fathers, which is why this clause is in the Constitution to begin with. The public domain needs to be public.

Eldred: Let the free market decide. Let's have some competition. Why give a monopoly to these publishers forever?

Next Page: This isn't a Napster case

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