Sunday, Sep 7, 2008
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.
Apr 8, 2004 | 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.
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