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Friday, November 01, 2002

Our Opinion

Culture and Copyright: Free Mickey Now!

It’s called “sampling”: hip-hop artists using bits and pieces (shorter or longer) of previous (well-known and recognizable) music as part of a larger musical creation. It is, of course, an ancient compositional tradition, familiar to any philologist, folklorist, or cultural historian. As anybody who’s studied it even superficially knows, culture is not homogeneous, but stratigraphic. It is also not parthenogenetic but the result of the endless intercourse between past and present on the one hand, and time and (cultural) space on the other. This is all to say that one man’s tsifteli is another woman’s ciftetel – and an age-old demotic tune can end up as part of a symphonic poem by Copland, Dvorak, or Kalomiris.

Earlier this month, the United States Supreme Court heard arguments in Eldred v. Ashcroft, a case on which a ruling is not expected before next spring. While it is not about civil rights or critical social issues, the constitutional points on which it hinges are central to our civic future. Depending on how the Court decides, ours will immediately become a lesser or more free society, and certainly a lesser or more creative culture.

The case concerns a lawsuit whose lead plaintiff is Eric Eldred, described recently by The Economist as “a retired computing executive who publishes out-of-copyright works on the Internet”(October 12). In fact, his tiny Eldritch Press reprints classical literature, from Nathaniel Hawthorne, William Dean Howells, and Ring Lardner, through Mikhail Lermontov and Ivan Goncharov, to Emile Zola, Rabindranath Tagore, and T. H. Huxley. Mr. Eldred and his fellow plaintiffs are clearly not among the dozen or so media monsters that currently bestride the globe and account for the dragon’s share of profits of today’s cultural commerce. Quite the opposite – which is why the monsters have combined with the politicians to stop them at all costs. It is also why Mr. Eldred et al’s legal team reads like a Who’s Who of American constitutional scholars.

It includes the dean of Stanford Law School, the heads of Harvard Law School’s Berkman Center for Internet & Society, a former solicitor general of the United States, and one of the country’s most prominent advocates of public-interest law, among many others. The team is headed by Stanford law professor Lawrence Lessig (formerly of Harvard and the University of Chicago). Prof. Lessig is, arguably, the leading authority on constitutional law and the Internet; he has taken on Mr. Eldred’s case because he considers it to be a landmark defense against what The Economist again has described as “the hijacking of technology policy by lobbyists – and the threat to the Internet of inept, heavy-handed regulation.”

Mr. Eldred et al hope to overturn the 1998 Sonny Bono Copyright Extension Act, an egregious violation of both the letter and intent of the constitution passed by a bizarrely bipartisan congress (the senate actually approved the law unanimously). Named after the late, less-than-talented singer (but shrewd producer and Republican congressman) who, according to his widow, apparently believed that copyright “should be forever,” the law extended copyright protection for individuals from 50 to 70 years after an author’s death and, most grotesque of all, from 75 to 95 years for corporations. Quite simply, it’s made a mockery of constitutional protection of creative rights, and condemned the very notion of culture to perpetual servitude to corporate profit.

Article I, Section 8, of the constitution unambiguously states that Congress shall “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….” For limited times: America’s first copyright law in fact ran for only 14 years, with possibility of renewal for another 14 years. A constitution that was composed and signed by practical and worldly intellectuals such as Franklin and Hamilton would never have perpetrated an eternal entitlement linked to the ownership of ideas (both men were publishers, after all). The point was to protect intellectual property for a reasonable time from theft, abuse, or misappropriation, and then to channel that property into the general, social sea of ideas after a decent period of equally reasonable profit.

The goal, in any case, was to protect “Authors and Inventors” – in other words, individuals – not global behemoths unimagined (and unimaginable) at the time such as Disney, AOLTimeWarner, Viacom, Bertelsmann, or News Corporation. More important, the fundamental civic purpose was to “promote the Progress of Science and useful Arts,” not the profits in perpetuity of a Disney because of its “ownership” of the image – and use, in any creative form – of Mickey Mouse.

“Free the Mouse” has, in fact, become the battle-cry across the United States of Mr. Eldred’s supporters; even The Economist titled its highly sympathetic profile of Prof. Lessig, “Free Mickey Mouse.” Amicus curiae (friends of the court) briefs in support of Mr. Eldred and his co-plaintiffs have been filed by, among many other professional and intellectual bodies, the American Historical Association, American Library Association, College Art Association, National Council on Public History, Society for American Music, and, most tellingly, the National Writers Union.

The fact that writers themselves – from William Gass to Peter Matthiessen and Ursula K. Le Guin to David Foster Wallace – have taken up arms against the Sonny Bono law confirms just how specious and illegitimate its alleged “protection” of individual artists actually is. The fact is, to quote a New York Times editorial urging that the law be declared unconstitutional (October 11): “The purpose of the 1998 Congressional extension was not protecting artists, but enriching media companies that hold property rights in their creations, virtually in perpetuity. The founders did not envision copyright being put to this use, and the Supreme Court should not allow it.”

As an Internet-based entity whose sole purpose is to publish original intellectual and artistic matter, as well as to promote and disseminate preexisting creative materials, obviously has a profound stake in the Supreme Court’s final decision. As a Greek American company, moreover, we are fully aware of the sorry record of the Greek American media – and the Greek media as a whole – when it comes to respect for and protection of intellectual property. Until a few years ago, Greece was notorious – and Cyprus still is – for a legal regime that turns a blind eye to intellectual piracy of all kinds. As for Greek America, the community’s writers, artists, and creators have long suffered because of its media’s infamous contempt for copyright and fair compensation.

Intellectual exchange and artistic dialogue are impossible without absolute protection of and fair compensation for intellectual property and creativity. Nevertheless, copyright was never meant to be a hereditary endowment, but a reasonable, generally acknowledged, reward for intellectual and artistic merit. The Sonny Bono act is therefore not merely ill-conceived but cynical and philistine. For that reason, we agree with The New York Times, Washington Post, Financial Times, and hundreds (thousands?) of tiny Internet publishers like Eldritch Press, which is much closer to’s own company profile and mode of operations, that the Supreme Court must find the current legal regime regarding copyright not only unconstitutional but, in fact, a fundamental breach of any rational, democratic, and pluralist notions of intellectual freedom and creative exchange.

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