Other People’s Property


A bevy of legal minds are facing off against Hollywood over the corporate control of Internet content. After hearings this fall, a Supreme Court decision may determine the level of access Americans have to a wide swath of their cultural heritage.

This latest chapter of the ongoing battle went public in January, when Stanford law professor Larry Lessig wrote an op-ed in The Washington Post chastising entertainment conglomerates for inhibiting the growth of high-speed, or broadband, Internet access. Citing unchecked piracy and more competition, the industry prevents the distribution of digital movies via the Internet, and as a result the U.S. lags behind many other countries in the rollout of broadband.

The following month, Jack Valenti, chairman and CEO of the Motion Picture Association of America, issued a rebuttal, again in the Post. According to Valenti, Hollywood does want to work with Silicon Valley to enable the secure delivery of digital movies online, but piracy threatens to undermine the very revenue streams that make the financing of movies possible. Valenti went so far as to claim the $35 billion film industry is “under siege” from a small community of academics. The phrasing seemed especially curious shortly thereafter, when Senate Commerce Chairman Fritz Hollings introduced the Consumer Broadband and Digital Television Promotion Act, which would require computer and consumer-products manufacturers to embed anti-copying technology into their products.

The entire industry may not be under siege, but one of its wealthiest members—namely Disney—may be feeling a bit nervous. The week before Valenti’s editorial was published, the Supreme Court agreed to hear Eldred v. Ashcroft, in which Lessig and a Harvard legal team charge that the Sonny Bono Copyright Term Extension Act of 1998 is unconstitutional. They allege that the act, which increases the term of copyright ownership from 75 to 95 years, violates the “limited times” section of the copyright clause in the Constitution. Since Mickey Mouse made his first public appearance in 1928’s Steamboat Willie, Disney’s exclusive rights to their mascot were set to expire next year, but now won’t run out until 2023. Others approaching their 75th birthday who were granted a stay include Pluto, Goofy, and Donald Duck. Billions of dollars are at stake for Disney, since all of these characters play starring roles in the company’s theme parks, filmed entertainment, and merchandising.

For Lessig and his colleagues, the question is how to apply U.S. constitutional law to the Internet; for Valenti and his cohorts, it’s how to make the Internet conform to the rules of every other entertainment conduit. The academics maintain that neither copyright law nor the Constitution have ever guaranteed authors and inventors complete, infinite control over their creations. The industry, meanwhile, frames the debate as a matter of intellectual property rights.

“Property talk limits our imagination—it is severely limited when influential figures such as Jack Valenti use the word theft eight or nine times in a given speech, because it is impossible to argue for theft,” says cultural historian Siva Vaidhyanathan, author of Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity.

In a debate with Lessig at the University of Southern California Annenberg School for Communication in Los Angeles last November, Valenti stated, “Copyright is at the core of this country’s creativity. If it diminishes, or is exiled, or is shrunk, everyone who belongs to the creative guilds, or is trying to get into the movie business, or is in television, is putting their future to hazard.”

But what of the past? In an amicus curiae brief supporting the petitioners in Eldred v. Ashcroft, Berkeley law professor Mark Lemley quoted some troubling statistics: Only 20 percent of American films made in the 1920s still survive; for the 1910s, the figure drops to 10 percent. Just 174 books out of 10,027 published in 1930 remain in print. Digital archives could preserve access to this material via the Internet, but the Bono act presents a massive stumbling block to such efforts.

Lessig and a group of academics from four other universities propose the creation of an intellectual-property preserve—an online environment that preserves cyberspace’s culture of innovation. Which is only possible, Lessig believes, if people can tinker with others’ work without having always to obtain permission first. Part of the effort, named the Creative Commons, involves intellectual-property licenses that artists, authors, and software programmers could use to label their work and make clear under what conditions it may be re-used.

Meanwhile, Rick Prelinger, proprietor of Prelinger Archives in New York and San Francisco, has already embarked on creating his own version of the national cultural park. His stock-footage company holds more than 145,000 cans of ephemera from 1903 through the ’80s: advertising, educational, industrial, and amateur films. At his Internet Moving Images Archive (, about a thousand of these artifacts—all in the public domain—are available free of charge and for re-use; since the site’s debut 18 months ago, nearly 1 million have been downloaded.

Brian Balogh, a history professor at the University of Virginia, has designed a similar site for his course “Viewing America: The United States From 1945 to the Present.” To teach the class, he uses a Web site—what he calls his “electronic sourcebook”—holding excerpts from a dozen or so films, including a revealing Disney short commissioned by the U.S. government during World War II called The Spirit of ’43, which promotes tax-paying as a patriotic duty. “I want my students to actually experience what Americans experienced at the time,” Balogh says. “It’s important because it gives them a more direct experience of history.”

Balogh stresses the site’s features that make his use of the material lawful: multiple passwords, the use of brief excerpts only, and its strictly educational purpose. “It would be nice if a site like this were available to the public—I get requests all the time to make it available, but I can’t take the password protection down because then I’ll be in violation of the current copyright law,” he says.

Likewise, many films that Prelinger previously offered on the Web have been ushered out of the public domain by the Bono act. “We now have a great deal of post-1964 material that remains unusable except to look at in-house,” says Prelinger. Still, in what may come as a surprise to Valenti, the project has actually increased Prelinger’s business—the archive effectively works as advertising for his offline enterprise.

“We see this project as an example of a new business model for providing access to cultural property—the intellectual property preserve,” Prelinger says. “Its concept supports freedom of inquiry and freedom of expression.”