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Techsploits

Freedom to Quote

By Annalee Newitz

THIS IS A strange new era in the free-speech movement. We are fighting for the right to say what has already been said. Often a major political setback marks the birth of a revolution, and this is precisely what happened last week when the Supreme Court ruled 7-2 in the Eldred v. Ashcroft case, upholding the so-called Sonny Bono law, a 20-year extension of copyright. Copyright on an original work now lasts for the life of its author plus 70 years, or 95 years for copyrights owned by corporations. Across the country, free-speech advocates expressed their outrage, calling the ruling a terrible insult to the First Amendment and a blow to democracy. But why? Doesn't copyright protect the rights of creators? Shouldn't any law that beefs up copyright be a benefit to people who want to speak their minds?

These questions, which are legitimate ones, assume that censorship grows out of prudery and political ideology. After all, advocates of free speech throughout most of the 20th century have fought to make the United States a place where people have access to all points of view, no matter how sexually detailed, politically radical or shocking. Freedom of speech meant Huckleberry Finn, leftist speeches in UC-Berkeley's Sproul Plaza and, of course, Hustler magazine. Members of the Motion Picture Association of America (MPAA) give money to organizations like the ACLU because they want to protect mass culture from government regulation.

And yet the MPAA found itself on the other side of free-speech activists in the Eldred v. Ashcroft case. During the trial, Stanford law professor and public-domain activist Lawrence Lessig argued that extending copyright violated the First Amendment because it unfairly limits people's ability to create works that grow out of copyrighted materials. At first glance, this seems like a weird idea. Why should you protect my right to rip off other people's free speech and use it in my own work? That's exactly what the MPAA's Jack Valenti wants to know. His organization has been ecstatic about the Eldred ruling: now entertainment companies can make even more money off their copyrighted possessions. AOL Time Warner can milk Batman for another 20 years. The Walt Disney Co. will cash in on Mickey Mouse for another 20 years. And so on.

Let's look at one example of why the Eldred case limits free speech. Say I want to make a darkly comic movie about a kid who develops an incestuous relationship with Mickey Mouse, whom she has turned into an imaginary playmate she calls "brother." She and Mickey hide under the covers and play doctor; they visit Disneyland and show each other their private parts in the animal-shaped bushes outside the It's a Small World ride. There is no way in hell Disney is going to let me make that movie--Mickey belongs to them. Disney will throw so many lawyers at me, I'll be eating subpoenas for breakfast. And the thing is that my movie isn't going to be the same without Mickey. Sure, I could invent a character called Wiggly Pig to fill the role, but this flick won't be as creepy and culturally resonant if I can't bring in a character who is a practically a part of American mythology.

Because Disney owns the copyright on Mickey, my story has been censored. But I haven't been censored for traditional reasons. The problem isn't about the potential obscenity of my tale, or even its political implications. I'm being denied my right to free speech for financial reasons. Disney doesn't want me diluting its character, because it might make less money on him. It also doesn't want me making any money off an icon it invented.

Yet Mickey has been around for so long that he's a part of U.S history; he's an icon like John Wayne or George Washington. Mickey should belong to all of us. He stands for a lot more than Disney's coffers. He's the symbol of cuteness and childhood and American pluckiness in the face of danger. If I can't tell stories about Mickey, it's almost like being told I can't tell the truth about America. I don't mean to be get too grandiose here, but I think you see my point.

Free speech these days is about taking back our stories from corporations and using those stories as we see fit. Eldred v. Ashcroft makes it clear that the First Amendment is a kind of class warfare--those who are culturally wealthy refuse to share with those who are not--and activists like Larry Lessig are the Robin Hoods of today. Lessig and others like him are trying to make sure we cultural peasants have the tools to be as creative as we like. One could take this Robin Hood analogy too far. I'm not talking about stealing an artist's ideas or works when that artist is still alive, depriving her of income or a reputation. I'm talking about using that artist's legacy to tell our own stories, allowing those stories to pass back into the public domain once their creator no longer needs to make money from them, so that we, too, can be enriched by the tales history has left to us.


Annalee Newitz (mickeyismine@techsploitation.com) is a surly media nerd who thinks the revolution is just beginning.


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From the January 23-29, 2003 issue of Metro, Silicon Valley's Weekly Newspaper.

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