Can Someone Give Michael Eisner A History Lesson On Copyright And Patents?

from the not-that-it-would-help dept

Michael Eisner gave an interview at SXSW on Tuesday (with Mark Cuban acting as the interviewer). While he discussed a variety of things, at one point he was asked about copyright issues and he responded with a strongly pro-copyright statement:

"I have a long history, obviously, of believing in copyright. I think basically what separated this country from the rest of the world was patents and copyrights. President Lincoln introduced a lot of this, fought for (the idea that) to pay people for their intellectual work was no different than paying them for their physical work. And nobody would think twice about paying someone for their physical work."

Eisner has been repeating this bizarre and near totally incorrect claim about Lincoln for years. In fact, in 2002 he wrote an editorial for the Financial Times with the bizarre claim that Abraham Lincoln would hate file sharing. Then, last year, in another interview he talked about how important intellectual property was in the US since the time of Lincoln. It certainly would appear that he has Lincoln on the brain when it comes to intellectual property. There are just a few problems with this, with the first one being that Lincoln had almost nothing to do with intellectual property laws in this country. While he is the only president to hold a patent, he didn't do much with that patent, and during his administration there was no major legislative changes to either patent or copyright law. Thus, it's not at all clear why Eisner seems to repeatedly be crediting Lincoln with setting up our modern copyright and patent law.

As we've been discussing, that job fell to two other former Presidents: Thomas Jefferson and James Madison, who clearly understood that copyrights and patents had both positive and negative impacts -- and were worried that the negatives could outweigh the positives. Eisner, on the other hand, has proven beyond a shadow of a doubt that he's an absolutist: copyright should be ever strengthened and lengthened. It was, after all, under Eisner's watch that Walt Disney was the driving force behind the Bono Copyright Extension Act, designed solely to protect the copyright on Mickey Mouse for even longer. Apparently, since Eisner's history lesson on copyright and patents only goes back to Lincoln, he's not aware of the "for a limited time" part that's in the Constitution.

Furthermore, Eisner seems to have a total blind spot to the fact that much of Walt Disney's success was due to its widespread use of stories and concepts from the public domain (the very public domain he doesn't seem to want to exist any more). Even the beloved Mickey Mouse was originally a concept copied from a popular movie (which was still under copyright at the time Disney copied it). Eisner is no longer at Disney, but it's not a stretch to suggest that a big part of Disney's troubles, leading to his own ouster, had to do with his inability to adapt to the changing times and changing marketplace that wasn't so reliant on artificial scarcities.

The history of intellectual property is fascinating and long, but Abraham Lincoln barely deserves a footnote in it. If Eisner wants the full story, we're more than willing to educate him -- though, since he's such a believer in the idea that information requires property rights, I'm guessing he'd be appalled if we just gave them away. So, Mr. Eisner, if you'd like to pay for a lesson on the history of intellectual property, we're willing to sell one to you. To entice you, we'll even throw in an explanation for why it's also incorrect to claim that intellectual property laws separated the US from the rest of the world (and will even show examples of how the US actively ignored IP rights for many years in order to build up certain industries, including -- believe it or not -- the entertainment industry).

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On The Constitutional Reasons Behind Copyright And Patents

from the might-as-well... dept

Last week, when I wrote about Microsoft being the latest in a long line of companies or industry lobbying groups to try to put together a one-sided educational campaign, to try to convince young people that intellectual property was sacred, I suggested that it was about time that someone put together a contrasting "educational" campaign that wasn't biased by the companies providing it. A couple folks asked me to put together just such a campaign -- which, unfortunately, I don't have the time or resources to do. However, I figured that I could at least use the blog to cover some of the key points that any such educational campaign should contain. With that in mind, I'll be running a short series of posts, like my earlier series on economics, that will look at some topics having to do with what, today, is called "intellectual property."

To kick it off, I wanted to discuss the very rationale for intellectual property rights in the US. While many people assume that there's always been strong support for things like copyright and patents in the US, that's not the case at all. Thomas Jefferson and James Madison, who were the main players involved, were actually quite skeptical of the concept. Both talked at length about the subject, but a brief quote from each should give you a sense of their feelings. Thomas Jefferson's eloquent statement read thusly:

"Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property."

He then goes on to note that there can be cases where society chooses to create monopolies "as an encouragement to men to pursue ideas which may produce utility," but also that "other nations have thought that these monopolies produce more embarrassment than advantage to society." Clearly, he saw both the good and bad that such monopolies provide, and knew he was treading a fine line. James Madison felt equally so:

"But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good."

Yet, after discussing it back and forth in a series of letters, the two agreed to include the following in the Constitution, in Article 1, Section 8:

The Congress shall have Power... 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;

And with that, the basis of copyright and patents was born in the US. However, it was clearly done with ambivalence, and the recognition that such "exclusive" rights could have more downsides than advantages. Note, also, that they were clear in their language, that the sole purpose of granting these exclusive rights was "To promote the Progress of Science and useful Arts." From that reading, it should be clear that any use of these types of monopolies in ways that do not promote the progress of science and useful arts is not covered by the Constitution at all.

These days, this language has been twisted. Supporters of stronger copyright and patent laws often point to this clause in the Constitution, claiming that it means that all of these types of monopolies, by their nature, "promote the progress." Yet, given Jefferson and Madison's own words, it is clear that this was not the intention at all -- and both were quite worried about how these rules could be twisted. For years, Jefferson was able to prevent that by managing the patent system himself. Yet, it didn't take all that long for problems to occur once he no longer was there to watch over the system.

Next up, I'll take a look at the "big three" categories that are often called "intellectual property": copyright, patents and trademarks.

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Links to other posts in the series:

• On The Constitutional Reasons Behind Copyright And Patents
• Patents, Copyrights And Trademarks, Oh My!
• If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?
• What Kind Of Progress Are We Promoting?
• Why Do Patents Tend To Cause More Harm Than Good?
• The Case For And Against Software And Business Model Patents

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