The Mouse who once set IP policy

Belated birthday wishes to Mickey Mouse. Eighty years ago Tuesday, he made his professional debut in Steamboat Willie, the first Disney cartoon, the first cartoon with sound, and the beginning of the Disney empire.

Daniel Finkelstein of the London Times describes the back story of that first cartoon and also defends Uncle Walt against his posthumous critics. He recommends the 2007 biography of Disney by Neal Gabler (now in paperback) which brings together a largely unknown facts about Uncle Walt and his empire.

My interest is Mickey’s role in setting the term of US copyright law. A decade ago, the copyright on Steamboat Willie was about to expire, so Disney Co. lobbied its friends in DC to extend all copyrights by 20 years. The ex post facto extension of copyright term makes no economic sense whatsoever, but (despite the heroic efforts of Larry Lessig) it was upheld by a 7-2 SCOTUS ruling. Hence the disparaging term “Mickey Mouse Copyright Law” or “Mickey Mouse Copyright Extension Act.”

Did I mention that there was no economic justification for this? (Yes, I know that Stan Liebowitz would beg to differ). People who created something 70 years ago (or even are dead) get no incentive for innovation or creativity for such an ex post facto change in terms. Instead, it is just another exhibit in the core Libertarian argument that a government that has the power to hand out favors to the well-connected is a government of men, not laws — or a government that can be bought.

However, today I find myself encouraged. I think this is the last copyright extension we’ll ever have: the law will be permanently set at 90 years rather than 70 (or 50) years, but it won’t be extended indefinitely. Someday Fitzgerald and Faulkner and Winnie the Pooh will be in the public domain.

Why? In 1998, the biggest threat to Steamboat Willie was unauthorized DVDs: think of all the DVDs of It’s a Wonderful Life, whose copyright was allowed to lapse.

Today, it’s the Internet. And, as any fool knows, this is a battle that won’t be won by copyright or copyright enforcement, but by clever business models that can compete with free.

Steamboat Willie is already being given away free by GooTube. Disney either doesn’t know or doesn’t care — or it realizes that pulling this copy will only have it replaced by another somewhere else.

So Eric Eldred may not live to see it, but someday works will again start falling into the public domain, and (hopefully) we’ll never see this mistake repeated again.