IP: Copyright tempest over `The Wind Done Gone' is outrag: Dan Gillmor on Technology: Weds April 25, 2001

[David Farber <dave () farber net>]

> D A N   G I L L M O R   O N   T E C H N O L O G Y
> By Dan Gillmor, Mercury News Technology Columnist
> E-mail Dan at dgillmor () sjmercury com
> _____________________________
>
>
> Copyright tempest over `The Wind Done Gone' is outrageous
>
>
> In the war raging over ``intellectual property,'' the news
>  from the front hasn't been encouraging, as corporate
>  interests slaughter the public good in case after case.
>  But a lawsuit involving the work of a famous American
>  author could help put at least one issue in front of a
>  public that remains remarkably oblivious.
>
>  On Friday, a federal judge blocked the publishing of a
>  novel called ``The Wind Done Gone'' -- a retelling of the
>  1936 saga ``Gone With the Wind'' from the perspective of a
>  slave, a half-sister of Scarlett O'Hara. The estate of
>  Margaret Mitchell, the ``Gone With the Wind'' author, had
>  sued on the grounds that the book violated copyright
>  protections.
>
>  The decision is outrageous enough in its utter contempt
>  for artistic freedom. In particular, the judge didn't care
>  that the book was a parody, a form of literature in which
>  arguments of plagiarism normally don't succeed.
>
>  But the case should never have come to court. That only
>  happened because Congress has twisted tradition and law
>  beyond all recognition, and a book that should have long
>  since entered the public domain remains protected by
>  copyright.
>
>  In the Constitution, the Founding Fathers gave Congress
>  the responsibility ``to 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.'' Note that the purpose of this
>  clause was to promote progress in science and arts, and
>  that those exclusive rights were to be for limited
>  periods.
>
>  In 1790, copyright terms lasted 14 years, with a 14-year
>  renewal period. But in this century of big and powerful
>  media companies, Congress has turned the idea of
>  ``limited'' into something perversely long, with repeated
>  extensions. The most recent lengthening, enacted in 1998
>  as the (no kidding) ``Sonny Bono Copyright Term Extension
>  Act,'' made the copyright term the life of the artist plus
>  70 years, up from life plus 50 years. That law also added
>  two decades to the copyrights ``created'' by corporations,
>  from 75 years to 95.
>
>  When Mitchell wrote the book, the maximum term was 56
>  years, said Lawrence Lessig, professor of law at Stanford
>  University. In other words, the copyright should have
>  expired in 1992, and Scarlett O'Hara and her cohorts
>  should have entered the public domain, where any author
>  could do anything he or she pleased with the work.
>
>  Keep in mind that the constitutional underpinning of the
>  copyright law is two-fold. First, we need a public domain
>  -- a public commons -- of ideas, inventions and cultural
>  works for the betterment of society, hence the limited
>  terms of copyrights (and patents). Second, we give
>  creators of this material an incentive to do the creating.
>
>  You can make an argument -- a poor one -- that authors,
>  musicians and other creators of arts need longer copyright
>  terms today to have the incentive to write their works.
>  But Margaret Mitchell, who is dead, doesn't need any
>  further incentive to write ``Gone With The Wind.''
>  Similarly, Walt Disney doesn't need any spur to create
>  Mickey Mouse. And so on.
>
>  This principle is at the heart of a legal case Lessig and
>  several other lawyers are now arguing before the U.S.
>  Circuit Court of Appeals for the District of Columbia.
>  It's called Eldred vs. Reno
>  (http://eon.law.harvard.edu/openlaw/eldredvreno/). A
>  three-judge panel of that court, flouting even recent
>  legal precedent, ruled 2-1 that Congress had the power to
>  extend copyright terms in this cavalier manner. Lessig and
>  his colleagues, including Charles Nessen of Harvard
>  University's Law School, have asked the full appeals court
>  to reconsider.
>    http://eon.law.harvard.edu/openlaw/eldredvreno/
>
>  They're arguing, essentially, that the Sonny Bono law is
>  unconstitutional. If they lose, get used to the idea of
>  indefinite copyright terms. The Walt Disney Co. has more
>  clout with Congress than you do.
>
>  Why is this so important? Cultural works and inventions
>  don't spring from an utter vacuum. They are the product of
>  other people's ideas and works. Practically every melodic
>  theme in music comes from older works, for example.
>
>  Snow White was in the public domain before Disney got
>  around to using her to make money. Victor Hugo must be
>  spinning in his grave at the way Disney has turned the
>  Hunchback of Notre Dame into a ridiculous cartoon -- but
>  Disney can do this, can create new ways to look at
>  cultural icons, because the public domain exists.
>
>  The rise of digital technologies makes it even more
>  essential that we respect the public good, Lessig and his
>  co-counsels argue in the Eldred case. Endless extensions
>  of copyright turn all standard notions of the public
>  domain into so much mush, at great peril to us all.
>
>
>
> Dan Gillmor's column appears each Sunday, Wednesday and
>  Friday. Visit Dan's online column, eJournal
>  (weblog.mercurycenter.com/ejournal). E-mail
>  dgillmor () sjmercury com; phone (408) 920-5016; fax (408)
>  920-5917. PGP fingerprint: FE68 46C9 80C9 BC6E 3DD0 BE57
>  AD49 1487 CEDC 5C14.
>    mailto:dgillmor () sjmercury com
>
>
>
>
> _____________________________
>  Don't miss Dan Gillmor's news and views on his ejournal.
>  http://weblog.mercurycenter.com/ejournal/



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