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Jewish World Review Jan. 24, 2003/ 22 Shevat, 5763

Suzanne Fields

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Free Mickey Mouse (and Robert Frost) | Some Americans cry for civil disobedience in the name of justice. Others decry the overweening power of government in the name of liberty. Still other lovers of freedom have reduced the expression of the most basic yearning of the human heart to three little words: "Free Mickey Mouse."

The focus for such contentiousness is a Supreme Court decision upholding an act of Congress to add 20 years to the literary copyright. At specific issue in the case titled Eldred vs. Ashcroft is legislation known as the Sonny Bono Copyright Term Extension Act, enacted without much interest or debate in 1998. It was hardly noticed in the popular press although Disney had done intensive lobbying to get it through Congress.

Eric Eldred, publisher of an e-book Web site that the National Endowment for the Humanities calls one of the 20 best literary sites on the Web, had tried to create a "global public library" of literature no longer covered by copyright, including poems by Robert Frost as well as novels and stories of F. Scott Fitzgerald, Sinclair Lewis and Sherwood Anderson, which would have entered the public domain but for the copyright extension. Other plaintiffs included the director of a church choir and a company that restores old films. Mickey Mouse didn't actually have a voice in the decision, but the law enables Disney to hold Mickey as exclusive property for two more decades rather than let him enter the public domain as a "free agent" next year.

The court split, 7 to 2, with Ruth Bader Ginsberg writing for the majority, suggesting that the legislation might be bad public policy but it is not for the court to say: Like it or not, Congress holds the constitutional right to set the lengths of copyright protection. The first copyright legislation limited protection to 14 years, but terms have been extended often. That seemed right; authors continued to live longer. Copyrights insure fair protection of a creator's work for a reasonable amount of time.

But the Sonny Bono law, it seems to me, goes beyond doing the right thing. Before this latest extension, a copyright ran for the life of the individual author plus 50 years; this has been extended to 70 years, and for corporations the copyright is extended from 75 years to 95 years. This translates to big money for corporations like Disney. For Eric Eldred and his readers, this means books published 50 years ago, which were about to enter the public domain, are off limits for 20 additional years.

Justice Stephen Breyer, dissenting in Eldred vs. Ashcroft, argued that the legislation extends protection to heirs, estates and/or corporate successors, and "I cannot find any constitutionally legitimate, copyright-related way in which the statute will benefit the public." Justice John Paul Stevens said the Supreme Court majority had failed "to protect the public interest in free access to the products of inventive and artistic genius."

Writers for both the conservative National Review and liberal Salon magazine lament the court's decision. Milton Friedman, Nobel Prize winning economist, along with 16 other economists, filed a friends of the court brief in support of Eldred. So did Phyllis Schlafly and the Eagle Forum Education and Legal Defense Fund, and the Association of American Physicians and Surgeons.

"This is not about left and right," says Lawrence Lessig, the Stanford Law School professor who argued the Eldred appeal. He portrays it, as many others do, as a David and Goliath combat, Joe Citizen vs. Hollywood.

He notes that Walt Disney originally relied heavily on Grimm's Fairy Tales, in public domain, and that Mickey's first starring role was in a cartoon called "Steamboat Willie," a knockoff from a Buster Keaton film called "Steamboat Bill." Disney and Co. are merely greedy, and have done to others what it does not want done to them. Only 2 percent of work copyrighted between 1923 and 1942, notes Justice Breyer, has much commercial value, but that translates into big bucks for those who own the rights to that 2 percent. To mix two convenient metaphors, Mickey Mouse is Disney's cash cow.

And what about the feelings of Mickey himself? Reason magazine caught up with him at a bar a few miles outside Disneyland and asked him the question we all want answered. "How does it feel to have your sentence extended by two decades?"

Mickey shared his feelings and frustrations. "For almost 70 years, I've only been allowed to do what the Disney people say I can do. ... They won't let me leave the reservation. If I do, they send out their lawyers to bring me home."

Where is PETA when we really need them? There are copy rights and copy wrongs. It's time to free Mickey Mouse.

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© 2001, Suzanne Fields. TMS