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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Comments on “Can Someone Give Michael Eisner A History Lesson On Copyright And Patents?”

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eleete says:

I need a job at disney

Apparently the physical workers get paid for a days work for 90 or so years after their deaths. I guess that includes the street sweepers, the maids, and the ride workers ?? This man is insane as well as wrong. I think by his view we should all go to work every day, and every day should be paid for repeatedly over the next 90 years, and that my family should collect far after we’re gone…. And then just when the checks are about to stop coming, that my family should push congress to extend my payments for the street I cleaned over 50 years ago. Sounds GREAT to me Mike !!!

Monarch says:

Re: I need a job at disney

“Apparently the physical workers get paid for a days work for 90 or so years after their deaths. I guess that includes the street sweepers, the maids, and the ride workers ?? This man is insane as well as wrong. I think by his view we should all go to work every day, and every day should be paid for repeatedly over the next 90 years, and that my family should collect far after we’re gone…. And then just when the checks are about to stop coming, that my family should push congress to extend my payments for the street I cleaned over 50 years ago. Sounds GREAT to me Mike !!!”

Hear, hear!
I want to be paid for my work over and over again also!!!
Hey Michael Eisner, can I live in your delusional world and get paid for the work I do, over and over and over again. After all, what I do is not entirely physical, I do intellectual work!

Corey says:

Re: Re: I need a job at disney

The problem with your argument is this. Most works that are copyrighted make very little per work sold. So if I invest my time and money in writing a book, does this mean I should only get paid for the sale of one book (for a royalty of about $1)?

Remember, most people who benefit from copyright law are not rich like Eisner, most are just trying to make a living.

Crosbie Fitch (profile) says:

Information does have property rights

Information does have property rights.

There is such a thing as intellectual property, and the right for people who create or purchase it to do what the heck they want with it.

The problem is, the state’s recognition of many of our intellectual property rights (to copy, perform, distribute, prepare derivatives, etc.) have been suspended to create a commercial privilege known as copyright – supposedly to encourage publishers to publish, but probably simply to establish state control over publishers.

Let’s help Eisner separate the right for people to be able to exchange their intellectual property for money in a free market, from the privilege of preventing people copying or creating derivatives of the intellectual property they’ve purchased.

Abolish copyright.

Restore everyone’s intellectual property rights.

FUG Buster says:

Re: Information does have property rights

Eisner is being an idiot trying to tie this to Lincoln. and while I think it is very fair to question the “Disney Extenstions” to copyright. It has done good things like allow the estate of Dr Martin Luther King Jr. to keep his profound words from being used to endorse products etc.

BUT the idea that if your work can be digitized and copied you have no right to get paid for its use is simplistic. It usually comes from spoiled brats who make nothing and want to pay nothing.

Copyright is also what protects the most common open source models with GPL etc. So that work is given, but not stolen and turned into another product etc.

The non stop railing against IP law on this board is not only silly, it lables the posters as ignorant and simple in their thinking.

I think there is reform needed.. but in the end.. if you don’t offer fair protection for those that create information and entertainment and inventions you penalize this segment of the population.

So Crosbie Fitch.. get a clue there is IP and it does deserve some protection.

Steve R. (profile) says:

Re: Re: Information does have property rights

Most people agree that so-called “intellectual property” deserves “limited” protection for a short period of time.

The problem is that the pro-intellectual property crowd talks of “fair protection” but neglects to point out that they have been aggrandizing their rights at the expense of the rights of the users of that content. The intellectual property crowd is attempting to charge you for virtually any use of the content you bought.

Want to play a region 1 DVD in region 2, pay again. Want to transfer your music from an iPod to an Zune, pay again. These are “fair use” activities that a consumer is entitled to. The “theft” of these consumer rights is never mentioned by the pro-intellectual crowd. Very disingenuous of them.

Like many of the commenters above, in the name of equity, if the “holder” of intellectual property can be paid over and over again for the use of the same product, I should be paid over and over again for my physical labor. After all property is property. Right?

aeolus says:

yes but

Just because someone is for copyright and IP doesn’t mean they don’t want public domain to exist. (I am not talking about Eisner). Why can’t it be a choice of the people who create. Some people can be generous and just share their ideas/creations with everyone for nothing in return. Some people might want to protect the ideas they spent years developing, so that some other lazy-ass people who just sat on their butt for those years and did nothing else cannot just take those ideas and make money out of it. That’s what the copyright and IP should be trying to do. I agree it has become a major mass, and has to be thought from scratch. But without IP, without patents any lazy-ass thief can use ideas from people who spent many years of their lives to develop, that’s just not right!

Crosbie Fitch (profile) says:

IP Certainly Needs Protection

FUG Buster, I’m right there with you, having full support for the protection of intellectual property, vis-a-vis recognition and protection of our natural intellectual property rights.

I abhor IP theft – see

I’m also a champion for a free and fair market in which IP owners can sell their work. A market necessarily free of monopoly.

DanC says:

Re: IP Certainly Needs Protection

A market necessarily free of monopoly.

How can you have a market free of monopoly, when IP laws grant a de facto monopoly to the owners?

I abhor IP theft

Maybe theft is defined differently in the U.K. In the United States, copying material protected by IP laws without permission is infringement, not theft, as recognized by the Supreme Court.

DanC says:

Re: Re: Re: IP Certainly Needs Protection

So you’re saying that stealing something like books or sheet music off of private property then?

In any case, there is one line in your blog post I disagree with:

Taking or making a copy of a work in someone else’s private possession without their permission is IP theft – even if the work has already been published and is readily available elsewhere.

Making a copy, even in this instance, would still be considered infringement, as the owner has not been deprived of their work.

Crosbie Fitch (profile) says:

Re: Re: Re:2 IP Certainly Needs Protection

Yes DanC, unauthorised removal of material or intellectual property from private premises is theft.

This includes any copies a burglar may have manufactured whilst on private premises.

Without copyright there cannot be infringement, so the issue evaporates.

What we are left with is theft of intellectual work or copies thereof.

So, just as with GPL software (free as in speech, not beer), you still shouldn’t steal it, but if you buy it you can copy it all you want, and sell it all you want, because it’s yours to copy, sell, or even give away.

If you don’t want anyone to have your IP or to make copies thereof, then don’t sell or give it to anyone. Keep it private. It’s your property, both the material it’s printed on, and the intellectual work so imprinted.

Try not to be beguiled by the spurious notion that it is not theft if you leave the victim with a copy of the work you have stolen. Imagine someone stealing a copy of your diary, home videos, software you had painstakingly written with the hope of selling, amazing photo that you’d hoped to sell to a newspaper, etc.

The value is not in the copy, but in the art. Once, you have purchased the art then you may freely copy, but do not think that you may steal the art and make amends with a copy. The person from who you stole the art may already make all the copies they need at no cost. An extra copy cannot compensate for your theft of their art.

It is copyright that creates the illusion of value in copies. Without copyright copies have no value. Nevertheless, the art remains as valuable as ever.

DanC says:

Re: Re: Re:3 IP Certainly Needs Protection

Let me see if I understand your point here…

You’re saying, under the current legal system, that if I make an unauthorized copy of something I’ve purchased, it would be considered infringement.

On the other hand, if I make an unauthorized copy of something I acquired illegally, I am guilty of “IP theft”.

Is this an accurate description of your point?

Crosbie Fitch (profile) says:

Re: Re: Re:4 IP Certainly Needs Protect

If you make a copy of a work protected by copyright without the copyright holder’s authorisation it is copyright infringement (de minimis and fair use/dealing defenses notwithstanding) – even if you do this in the privacy of your own home.

If you remove an intellectual work (irrespective of whether it is protected by copyright) or copy thereof, from someone’s private premises without their authorisation it is IP theft.

BTR1701 (profile) says:

Re: Re: Re:5 IP Certainly Needs Pro

> If you remove an intellectual work (irrespective
> of whether it is protected by copyright) or
> copy thereof, from someone’s private premises
> without their authorisation it is IP theft.

Umm, no. That’s burglary, plain and simple. If I steal a Picasso from your living room, I won’t be charged with “IP Theft”. I’ll be charged with grand larceny.

Crosbie Fitch (profile) says:

Re: Re: Re:6 IP Certainly Needs

That’s fine BTR1701, but it’s still IP theft as well as material theft.

Consider a modern Picasso who had yet to find a buyer for his latest and as yet unpublished digital masterpiece. If you came in and stole a copy via your USB keyring, this would also be IP theft, but not material theft.

In both cases valuable works of art have been stolen. In both cases the crimes are of very similar magnitude.

However, if having been published in a magazine (paper or electronic) that you then purchased, to make a paper or digital copy would be your natural right. This right is unethically suspended by copyright.

This is how IP theft differs from copyright infringement. One is a violation of our natural right to privacy, and the other is an infringement of an unethical commercial privilege.

DanC says:

Re: Re: Re:7 IP Certainly N

It is copyright that creates the illusion of value in copies. Without copyright copies have no value. Nevertheless, the art remains as valuable as ever.

Value doesn’t really have any bearing on whether or not theft occurred. You can’t “steal” value, you can only raise or lower an item’s value.

Try not to be beguiled by the spurious notion that it is not theft if you leave the victim with a copy of the work you have stolen.

But it isn’t theft. You haven’t deprived the owner of their idea (or expression of said idea). Now it could be argued that the copying may (or may not) have devalued the expression, but the owner still retains their IP. The standard (and legal) definition of theft involves both the taking (not copying) of something and removing it from the owner. This doesn’t happen with IP.

Out of curiosity, is there any legal definition of “IP theft”, or is this your own concept?

Crosbie Fitch (profile) says:

Re: Re: Re:8 IP Certain

Value has bearing upon whether you feel a copy is equitable compensation for the art you have stolen.

Theft is the unauthorised removal of property.

Whether I have a hundred copies or a thousand, it doesn’t make any difference – nor if you double the number of copies I have. if you come on my premises and make another copy or a million copies, these copies remain my property just as much as all the others. If you remove any without authorisation, it’s theft.

If you purchase a copy, it’s not theft (the removal was authorised). If you make a copy of your copy, it’s not theft (you’ve authorised a copy of your own property).

The problem with copyright is that it wrests the right of authorisation to make copies from the property owner to give it as the privilege of the copyright holder.

Abolish copyright and IP behaves as naturally as material property.

The act of unauthorised copying isn’t theft. The unauthorised removal of copies is theft.

Intellectual property is not a legally recognised concept, nor is its theft. For that matter nor is plagiarism. The law has failed to move on from 300 year old laws designed to control the printing press.

Corey says:

Re: Re: Re:9 IP Cer

“Intellectual property is not a legally recognised concept, nor is its theft. For that matter nor is plagiarism.”

Intellectual property and plagiarism are most certainly legally recognized. If they weren’t, why in the Hell are Mike’s panties in such a twist?

“The law has failed to move on from 300 year old laws designed to control the printing press.”

The laws were designed to encourage the creation of products that are expensive to produce, but inexpensive to copy. Its an incentive to create.

eleete says:


I posted the first comment to this article, and I think it’s funny to see people who claim that this board wants to see IP abolished. I think it’s a matter of extremity. I don’t believe anyone wants to see it gone, rather, more relaxed, perhaps those that believe monopolistic rights in perpetuity are the answer should take a more balanced approach in a situation where distribution of intellect is becoming more and more a norm than an oddity. If anyone opens their eyes and sees the mess this is leading to, there clearly is a better way. My suggestion is that 70 to 90 years after the death of someone (say Britney Spears) is indeed extreme. I say we give authors 5 years or so to reap the rewards of their efforts, if they cannot, then it was not a viable work. And if 50 years down the road the value were to increase due to unrelated circumstances, then it shall be in that public domain of circumstance to deal with the content. As I stated, NO ONE gets paid for a days work for their lifetime PLUS 70-90 years, as Michael would like it to be (but not pay for it). I think the extremists on both sides need to be dealt with in mediation and a result that allows things to gracefully fall into the public domain after a set amount of time (which I feel should not be their entire lifetime PLUS years afterward). I think we can all agree (as my 1st comment was directly quoted in a subsequent one) that I authored that content. I could care less about the copy and paste job, as I pledge every Intellectual endeavor I take, up to and including… The Code I write (yep im a programmer), the pictures I take (yep, Im a photographer), the sites I develop, and the words I write to the public domain. Why ? Because it is far more useful and rewarding to have it there, than in a court room. I suggest very limited approaches to that length of terms in an era where content, and intellect is published by anyone with a motherboard and keyboard (microphone, and digital camera). Our court systems cannot deal with the influx nor should they. Feel free to use ANY and ALL content, and intellect I ever produce, I will NEVER be so small as to pursue another for standing on my shoulders. For I am a giant, and will continue to produce desirable works. Free for all. I recognize that this is my extreme choice, and with great temperance, (yes I would LOVE to see IP law abolished so we can get on, and create/innovate beyond these Barriers), but it should be noted I will not Sue myself into their financial position to push my view.

aeolus says:


I aggree with most things you say. It is a two edged sword so there are extremist on both sides. As much as nobody should be able to simply take other’s ideas developed through hard work and butt busting and simply make money out of that, the opposite should also be true: nobody who came up with just an idea shouldn’t be living off of it for decades.
Many people like eleete are great to just share all their work, photography, writings. And that’s great! But don’t forget there are many people who do this professionally and try to make a living out of photography or writing novels,. How can they give their work free for all (or charge a little bit once for however many copies to be used)? How would you feel when you’re starving to death and you see some ad agency making a fortune using a stock photo you gave them for free (or charged for one and said they can duplicate it as many times as they want), by using it ubiquitously.

eleete says:

Re: Re:extreme

Please don’t forget, I never said my extreme view was the Best approach, just my answer to the situation, and I never said that those who wish to participate in the IP game should have NO right too, I just think that it needs temperance, and I also suggested that they should have exclusive rights for several years, I just believe its insane to think that this term should be for my lifetime (imagine i take a great photo at 15 yrs old and die at 95) AND then my child’s lifetime assuming he makes it to 70 or 90. All for the click of a shutter release, and an exposure of 1/500th of a second. I know this oversimplifies it, as a song takes longer to make, or a book to write, but it shows how extreme the protection can be, and how long a monopoly can last. It is only my opinion that it should be shortened in an age of digital cameras with 16gb of storage (thats thousands of pictures at a sitting that gain monopoly rights). I agree that professionals need to recoup the time they spend for creating a work, and surely if it takes them their lifetime, and their child’s lifetime to complete, that it may warrant that type of protection, but If someone produces a work in a fraction of a second, should they really be paid for the rest of their lives ?? Seems extreme to me. but maybe Im missing the boat, as I said, Im sure we would ALL just LOVE to be paid a weekly salary to work, and have that pay, Over and Over again, til we die, and will it to our loved ones. Who’s absolutely willing to write those checks though ? Michael Eisner ??

Anonymous Coward says:

Re: Re:extreme

If there are any gross violation of ethic, you might have a point for starving artists. But there are none.

Someone making money off your work is not a valid argument. You might have a point if someone stolen your work, perpetuate fraud, or whatever but someone who is simply distributing your work for a profits is not doing anything wrong.

There are many way to make a living taking photographs, making video games, among other things that doesn’t relies on copyright and can beat whatever copycats and competitors that you may have out there.

It is easy to think copyright is necessary, but economic evidences tell otherwise. They are not necessary by any stretch of imagination. I can tell you that some British authors are handsomely compensated by American publishers, despite no recognition of foreign copyright at the time. Mike can tell you endless examples of how a business models work without relying on copyright. In present day era, we know examples of publishers profiting handsomely from public domain works. We can also point out a section of the software industry that given up their monopoly privileges in exchange for a copyright license that give none of the “benefit” of monopolies and makes selling softwares almost impossible. Yet big software corporations like RedHat that specialized in free software were able to not only compete, but thrives in an environment where there are “legal pirates” can exists.

Your post is sympathy to starving artists, but unfortunately, copyright and artificial scarcity is not the best business models for them. Starving artists has existed for probably thousand of years. Copyright will not solve that starving artist problem.

Anyway, I’ll end this post with a quotation from

“Monopoly corrupts. Absolute monopoly corrupts absolutely.”

Anonymous Coward says:

Re: Re: Re: Re:extreme

The only problem is, I don’t care if you copy my work and profits from it whether they makes 1 cent or million of dollars. I am also not an artist either.

I am not jealous of successful artists’ successes, either. Good for them for being able to find a niche in this world.
Bad for them if they’re starving the next day. I don’t really care.

Meanwhile I makes some money everyday through my little entrepreneurship. Not enough to earn a living but I certainly feel rewarded for appearing on some of the world’s most popular social news site and being acknowledged as a useful resource. I hope to expand my revenue generating effort through my further effort. Who know? Maybe I’ll makes enough money someday.

Despite what you believe, copying someone’s work isn’t stealing, no matter how unjustified or evil it is.

BTR1701 (profile) says:


> I think basically what separated this country
> from the rest of the world was patents and
> copyrights.

Maybe it’s just me but I think I’d place the Bill of Rights above copyright law on the list of things that separates this country from the rest of the world.

Things like freedom of speech, religion, assembly, the ability to criticize the government without being thrown in prison, the right to trial, an attorney and the right to be free from self-incrimination and warrantless searches. All of which is far more significant than copyright law.

aeolus says:


Yes. I said this in my previous posting too. Nobody should live off of the benefits of a single idea for decades, like you said there should be limits and constraints. And seems like you’re not against professionals of the trade getting paid for their work either. (just as a note a great photo shouldn’t be considered just a shutter release, it is WHEN the shutter is released and how the composition is, taking a great photo is hard work, but I’m sure you already know that being a photographer, and I don’t mean to understand you comment from a different angle, this is just a note for people who aren’t into photography). So it seems we agree, could be a first in the forum 🙂

Carl (user link) says:

The US as IP champion? BWAHAHAHA

I’m surprised nobody has called Eisner on this part: “I think basically what separated this country from the rest of the world was patents and copyrights.”

I suppose it’s true — but not in the way Eisner means. The US was very slow to protect the copyright of foreign authors, a constant lament of C19th and early C20th European authors… not to mention the American novelists who couldn’t make a living because American publishers found it cheaper to rip off British books than pay American royalties. I guess that’s what they mean by “the land of the free”…

eleete says:

Re: Twice ???

Try thousands of times over, for a hundred years at least. He’ll tell you the studios need money to pay the people who make them, I bet the grips, camermen, casting, and so many other people never see a dime of that money, or a small fraction of it at best. The STUDIO Wants that money and and the corporations horde it greedily. It’s never about the talent, its always about the corporations. Thats why a former CEO would make all those false assertions, to make it seem unpatriotic to not pay them. I find it unpatriotic to use that as an argument to fill the coffers.

Vincent (user link) says:

He's right?

What separates the US from the rest of the world is the belief that the rest of the world doesn’t respect patents & copyright, especially in media.

Amazon, Kindle, iTunes video, iPhone, Hulu, Pandora radio, and many more… Why do you think none of these services are in a first-world country like the Netherlands? Many of these aren’t even available in your neighbour-country.

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