There’s something odd going on in media reporting on the expiration of Disney’s copyright on the initial version of Mickey Mouse that is set to occur in 2024. Given the subject matter, we’ve talked Mickey Mouse quite a bit on this site, specifically noting the “coincidence” of copyright term extensions that have occurred roughly each and every time Disney’s copyright was about to expire. The context in this throat-clearing is, essentially: Mickey Mouse should have been in the public domain years and years ago but isn’t because Congress keeps extending the term so it never occurs.
Well, while some are theorizing that the odd spate of media posts we’re suddenly seeing now about how Mickey’s earliest versions are going into the public domain soon is part of some campaign to extend copyright terms again, there is actually very little evidence for that. But whatI found interesting about these stories is how many of them were framed: lamenting the loss of Disney’s copyright instead of celebrating the addition to the public domain. Here is one example, headlined Disney Might Lose Copyright To Mickey Mouse As First Version Of Iconic Character Reached Public Domain In 2024.
First, that headline sucks. Might lose? Will lose, actually, unless Congress quickly extends copyright terms. Second, get a sense of how this is all framed with this quote as an example.
But sadly, the first version is going to enter the public domain very soon. The silver lining is that Disney might still hold on to some rights if they can make a trademark of the first Mickey Mouse version, states a report by Deutsche Welle.
What fresh bullshit is this? Disney got sweetheart deals in the form of extensions in copyright terms over and over again, and now we’re “sad” that those sweetheart deals have run their course? And why is it a silver lining that Disney still gets to control subsequent versions of the character for the extended absurd lengths of time? What is with all the hand-wringing here?
This isn’t the only terrible framing at work here. Other outlets are including input from folks reminding people that Disney still has a trademark on Mickey Mouse and how that will allow the company to still bully and control others’ use of the character.
Meanwhile, Daniel Mayeda from the UCLA School of Law told The Guardian: “You can use the Mickey Mouse character as it was originally created to create your own Mickey Mouse stories or stories with this character. But if you do so in a way that people will think of Disney—which is kind of likely because they have been investing in this character for so long—then in theory, Disney could say you violated my trademark.”
No! That isn’t how this works. Trademark law was not intended as an end-around an expiring copyright term. No amount of investment in Mickey Mouse allows Disney to control the fact that the Steamboat Willie version of Mickey Mouse will be in the public domain. And suggesting otherwise is irresponsible. I have no doubt that Disney will try to do this, but it should fail on the merits.
And the larger point is that all of this worry and dismay over one version of Mickey finally(!) entering into the public domain is absurd. Why is the framing in these posts all about Disney “losing” something rather than the public, literally all of us, gaining something. That’s the entire damned point of the public domain and it seems there are a lot of media outlets out there that can’t grasp the concept.
No one is ever going to confuse Hollywood giant Universal Studios with, say, EFF’s view on more permissive copyright. However, Polygon recently had a really interesting article on how Universal’s comparatively minimal focus on cracking down on the incidental (and fun) uses of its Minions characters have made the characters well known, ubiquitous… and well loved. And, as the article notes, a hell of a lot more relevant today than Mickey Mouse, owned by Disney — which is famous for its unwillingness to allow anyone to make use of its characters.
And they’re almost certainly on the walls of a number of day care facilities. Universal Studios — parent company of Illumination, the animation studio that blessed us with Minions — did not put them there. The Minions aren’t public domain. But you wouldn’t know it by the many ways people have taken ownership of them. And Universal’s comparatively hands-off attitude toward Minion litigation has arguably paid off — by making them as recognizable and culturally front-and-center as Mickey, if not more so.
I take a little issue with the framing of the article, which calls them “practically public domain” because clearly they are not, and Universal certainly has its own long history of being copyright bullies.
But there is a big lesson to be learned here. By deciding not to enforce every use, by not freaking out that someone else out there is having a little fun with your characters (there’s no way I’m calling it “your IP” because fuck that), Universal has actually made its characters more relevant than perhaps the most well known cartoon character of the 20th century.
Disney, of course, has a long history of locking up culture rather than freeing it:
Disney’s playbook has always been to rewrite public domain fairy tales into copyrighted versions, then mold an ecosystem where any other adaptation of the original story comes off as the bootleg. When Disney was able to lobby Washington to extend its copyrights on its trademarked characters in 1998, it was after the studio returned to the zeitgeist with a new generation of uber-popular rewrites of other people’s stories: The Little Mermaid, Beauty and the Beast, and Aladdin.
And, as the article notes, Universal comes out of that same basic tradition of locking up culture:
And Universal has a similar history as a studio. It kicked off its success with a string of adaptations of classic horror stories through the 1930s and 1940s: Dracula, Frankenstein, The Wolf Man, The Invisible Man. Many of these stories are in the public domain, but Universal retains the rights to its own iterations, which have become the canonized versions in the public imagination.
And, yes, somehow, over the last few years, by taking many of the traditional copyright shackles off of the Minions, it’s actually helped Universal a lot more than it’s hurt the company:
And as this is all happening, the Minions continue to spread across murals, memes, and the internet at large, still smelling like the tube they were squeezed from. They’ll continue to belong to Universal Studios for many years. But in their case that seems functionally irrelevant. How would it look any different if the Minions were public domain? There is nowhere that the Minions are not.
Indeed, the article makes a point that we’ve been trying to make for decades: often times, when the so-called “infringement” is coming from your biggest fans, they’re actually providing you with free marketing for your underlying product.
Just as Frankenstein gives Universal Studios permanent real estate on a chunk of the public consciousness, the unchecked spread of the Minions has vastly increased awareness of Illumination’s work, paving the way for Despicable Me and its spinoffs to steadily continue their advance in a world where the entire internet seems willing to handle Universal’s marketing efforts for free. It suggests that the money, clout, and nostalgia forged from ubiquity can outweigh — or at least significantly amplify — the dollars reeled in from toy sales alone. Maybe Universal has created a monster it cannot control, or maybe it just doesn’t want to. Either way, it’s mastered the process of profiting from that monster’s ever-expanding adventures.
Unfortunately, the article doesn’t actually quote anyone at Universal to see if this is a conscious strategy, or just something that has happened by accident. Given the way Universal has acted for years, I’m not sure I’d trust the company to continue behaving in this mostly sensible manner.
That said, even if we ignore the fact that Universal might turn out to be just as bad as Disney in the long run on this, at the very least, hopefully others can take this as a lesson: rather than feeling the need to overly enforce your copyrights every chance you get, perhaps there’s even more benefit to letting people make use of the work and help you spread it and make it ubiquitous.
Apparently, I never should have wished on that old monkey’s paw for copyright term reduction. One of the very reasons why Techdirt exists in the first place, and why it was started nearly 25 years ago, was to fight back against over expansive copyright laws, and, as such, we’ve spent many years and many posts arguing about the problems of excessive copyright terms. Indeed, there are few things I’ve hoped for more in these two and a half decades than for Congress to realize the dangers of excessive copyright and to move to shorten copyright terms back towards their actual constitutional underpinnings.
Almost exactly ten years ago, Republicans in Congress actually seemed to recognize that copyright terms were too long, and published a paper arguing, in a principled way, for shorter copyright terms. Of course, within 24 hours, the screaming responses from Hollywood caused the paper to be pulled, and for the author of the paper to be fired.
So… now, we’re actually seeing a bill to reduce copyright terms, coming as promised from Senator Josh Hawley, one of the most performative, least principled elected officials around. Hawley has now officially released his Copyright Clause Restoration Act and made it abundantly clear that he’s doing so to punish Disney for that company’s political speech.
Everything about this bill is ridiculous and almost certainly unconstitutional. And I say that as someone who was arguing for shorter copyrights that were more closely aligned with the Constitution since Josh Hawley was in a private boys prep school (which is funny since he so wants to present himself as a man of the common people).
So, let’s go through the bill, and discuss what actually makes sense, but also why Hawley’s attempt here is so ridiculously bound to fail. It starts out by returning copyright term to what Hawley (incorrectly) refers to as the “original term.”
(1) ORIGINAL TERM.—Notwithstanding any provision of title 17, United States Code, or any other provision of law, copyright in any work shall endure for 28 years from the date it was originally secured.
(2) EXTENSION.—The holder of a copyright under paragraph (1) shall be entitled to a renewal and extension of the copyright in the applicable work for a further term of 28 years if the holder applies for that renewal and extension during the 1-year period before the expiration of the original term of the copyright under that paragraph.
So, first off, if we’re going back to the “original term” that would be 14 years with a 14 year renewable extension possible. The US didn’t shift to a 28 year/28 year extension copyright term until the Copyright Act of 1831. Also, I mean, if we’re going back to “original” copyright thinking, the law only applied to maps, charts, and books. Hell, sound recordings weren’t even covered by federal copyright law until 1972.
Anyway, there are actually strong public policy reasons to consider returning the US to a 28 year/28 year extension copyright system. Evidence has shown a massive cost to the public of our over extended copyright law — and the constitutional underpinnings of copyright law are that it must benefit the public (not, necessarily, the copyright holder). On top of that, back when we did have a 28/28 copyright system (which we had until 1978), the vast, vast majority of copyright holders did not renew their copyrights at the 28 year mark. The one exception, by the way, was movies (which, hold that thought…).
So, there are perfectly good, principled policy reasons to push for shorter copyright. Indeed, there are economic studies that have suggested the ideal copyright term for public benefit is somewhere around 15 to 38 years. And, it seems that a perfectly reasonable way to set this up is to have extremely short copyright terms, with frequent renewal periods that grow increasingly expensive. If it’s not worth it for someone to renew, let the work go into the public domain where the public can make use of it.
Of course, there are a few problems with jumping into this approach, with a big one being that in order to do this, the US would have to immediately violate a decently large number of international treaties. However, that’s long been the excuse of those looking to extend copyrights ever longer, or pushing ever more draconian copyright laws on the rest of us. They go running to international trade negotiations and slip in something awful, and then run back to Congress, demanding that we make copyright worse to meet our “international obligations.” After all, the architect of the DMCA, Bruce Lehman, has publicly admitted that this is how he got the DMCA into law. After Congress refused to pass it, he ran to Geneva, and got an international treaty passed, then went back to Congress insisting it had to enact the DMCA to comply with our “international obligations.”
That said, the reality is that Congress is not bound by any international treaties, and can pass legislation that violates them. That doesn’t mean it won’t create some international messes, though, and that could lead to retaliation in a variety of forms.
The next section of the bill then goes even further, and into murkier legal territory, by trying to claw back copyright terms already granted, making the law retroactive:
(2) RETROACTIVE EFFECT.—
(A) IN GENERAL.—Subject to subparagraph (B), subsection (a) shall apply with respect to a copyright that, on any date on or after May 1, 2022, is owned by a person that—
(i) has a market capitalization of more than $150,000,000,000; and
(ii)(I) is classified under North American Industry Classification System code 5121 or 71; or
(II) engages in substantial activities for which a code described in subclause (I) could be assigned.
Phew. So there’s a lot to break down here. This is Hawley’s weird attempt to make it obvious to everyone that this is, effectively, a bill of attainder, and specifically designed to punish Disney. Hawley, who positions himself as a “constitutional scholar” surely knows that bills of attainder are unconstitutional. I mean, it’s right there in Article I, Section 9, Clause 3:
No Bill of Attainder or ex post facto Law shall be passed.
A bill of attainder is defined as the legislature effectively targeting an individual, group, or company for punishment. And, I mean, Hawley didn’t shy away from making it clear that this was a bill of attainder in his press release, literally headlining it “Hawley Introduces Bill to Strip Disney of Special Copyright Protections.” That press release title is basically “hello, I am introducing a bill of attainder.” Because Disney has no “special” copyright protections. It just has copyright protections. And then literally calling out the company you are trying to punish as the reason for your bill is effectively handing them their brief to sue to stop the law as unconstitutional.
But, to really cement this home, while the bill would restrict all future copyright to a maximum of 56 years, it would strip only a small number of companies of their current copyrights. And from the text above, you can see how narrowly focused the bill is. Basically, everyone who has extremely long copyrights today can keep them unless the copyright is held to a company with a market cap over $150 billion (Disney is currently around $200 billion), and is classified in the NAICs system as being in two specific industries: 5121 for “Motion Picture and Video Industries” and 71 for “Art, Entertainment, and Recreation” which is the code that generally applies to theme park companies.
Doing a quick search around, it appears that the retroactive nature of the bill may only apply to a very small number of companies which are in those classifications and over $150 billion in market cap. On the Hollywood studio side, you have Disney and Comcast NBCUniversal (though NBCUniversal’s primary NAICS code is listed in 5152 for “pay and specialty TV”), but clause II would likely cover it. Netflix’s primary classification is otherwise, but it would also fit.
I guess it’s possible Amazon could get covered by this as well, as it owns MGM. MGM by itself has a much smaller market cap, but Amazon has a larger one. So if you lumped them together, it could take away all of Amazon’s copyrights and… well, wouldn’t that be interesting? Viacom’s market cap is below the threshold. Arguably, Apple might be covered as well. The new Warner Bros. Discovery market cap is also way below the threshold.
So, end result, no new copyrights can last more than 56 years. Most existing copyrights remain until they were set to go into the public domain, except for the um, “woke” corporations of Disney, NBCUniversal, Netflix, Amazon and Apple. It sure looks like this is directly targeting a very small number of companies — companies that Republicans have been known to criticize heavily.
There is also the takings issue. In the past, I’ve seen (mainly copyright maximalists) argue that reducing copyright would violate “the takings clause” of the 5th Amendment. This is the part that says “nor shall private property be taken for public use, without just compensation.” In general, I have problems with this applying to copyright, because I don’t think it’s appropriate to call copyright “private property.” And, in fact, if it is then it seems that the takings clause should have been violated when we massively extended copyright with the 1976 Copyright Act, and again in 1998 with the Sonny Bono Copyright Term Extension Act. In both cases, works that were slated to reach the public domain were “taken” back and held in copyright for many more years. If that’s not a “taking” under the 5th Amendment, then shortening copyright terms shouldn’t be either.
Still, I would bet that Disney and others would claim otherwise, and they would have to fight their way through the court. And we’ve seen that this particular court (even very recently) takes a very broad understanding of the “takings clause,” to the point that it would probably need to overrule its own ruling from just last year to decide otherwise.
There is one final clause in the bill, a weak attempt to deal with cases where some of the companies listed above have copyrights that would expire under this bill, but which are still in active use being licensed. There, it includes some terms under which the license would expire over a 10 year period, effectively phasing out the copyright over that time.
(B) LICENSING.—If, as of May 1, 2022, a person is operating under a license with respect to a copyright that is subject to subparagraph (A) and that, because of the application of that subparagraph, would expire during the 10-year period beginning on May 1, 2022, that person shall continue to hold the rights contained in that license (to the exclusion of any person not granted those rights by a license before May 1, 2022) for a period that is the shorter of—
(i) 50 percent of the remaining license term, as of May 1, 2022; or
(ii) 10 years, beginning on May 1, 2022.
And, well, whatever. It’s not like this bill has a snowball’s chance in hell of going anywhere. Because it’s not actually meant to go anywhere. It’s all part of Hawley’s non-stop performative bullshit, playing to a base he believes is so stupid that they’ll lap up whatever culture war nonsense he puts in front of them. And, right now, they want their politicians to “punish” Disney, because Disney execs offered some mild criticism of Florida’s pro-bigotry bill.
Copyright terms should be reduced. Massively. But this isn’t going to do it. Nor is it actually intended to to do it. Copyright term reduction is just a convenient tool for Josh Hawley to do Josh Hawley kinds of things. Anyway, that will teach me never to wish on the old monkey’s paw for copyright term reduction ever again.
There are all sorts of silly and made up reasons to be mad at Disney, but those shouldn’t take away from the many legitimate ways in which Disney is a terrible, awful company. For years, it was one of the most aggressive in pushing for ever expanded copyrights, and was one of the chief lobbyists pushing to extend copyright in all sorts of directions. To be honest, over the last two decades, some of the other big Hollywood/media companies have gotten even more aggressive than Disney, but Disney has certainly remained aggressively awful.
And, of course, any time someone pushes back on this aspect of Disney colonizing culture, they pull out the copyright landlord’s favorite justification: “we’re doing it for the artists.” Over and over again, we see the big TV and movie studios, the giant record labels, and the biggest publishers claiming they need to fight for ever expanded copyrights to help the actual creators — all while doing absolutely everything they possibly can to avoid paying anyone anything at all.
Even for those of us deeply aware of the nature of “Hollywood Accounting,” the story that came out late in 2020 was still stunning. The Science Fiction & Fantasy Writers of America (SFWA) kicked off a campaign on behalf of famed author Alan Dean Foster — who wrote many of the early Star Wars books. Disney had claimed that when it bought the Hollywood studio 20th Century Fox, that it only bought the assets and none of the liabilities, and therefore, Disney’s lawyers claimed, it could keep on publishing the books Foster wrote without paying any royalties.
Now, that’s quite a trick. Indeed, if you could do that, well, then it would seem to create quite a lucrative business opportunity. Sign up a bunch of creatives to publishing deals. Hell, promise them extremely high royalty rates (you’re not going to end up paying them, so who cares?), and then after the contracts are in, sell off the “assets” but not the “liabilities” of your business to a different entity, allowing them to keep publishing and you never actually have to pay any royalties. Genius! Pure evil. But, genius.
But it seems especially rich that Disney, which has spent so many decades insisting its out there fighting the good fight to support “creative artists” to be doing this. Recently, the SFWA published an update on the campaign, noting that while Disney did agree to pay some high profile authors, it is still refusing to do it for less well known authors:
You’ve paid some authors what you owed them. But there are other creators that you don’t want to talk about. And, because you did not take our advice, new creators are coming forward who are owed money, too.
You still refuse to recognize your obligations to lesser-known authors who wrote media tie-in works for Marvel, for Star Wars, for Aliens, for Predator, for Buffy: TVS, and more, universes that you’ve bought the rights to, along with the obligations to those creators. You’ve re-published their works but have failed to do even the bare necessities of contract and talent management. You’ve failed to pay these writers royalties they’re legally owed and have not given them the courtesy of royalty statements and reprint notices.
This is shameful, and it points to the hollowness of Disney’s long-running holy war to get us all to “respect copyright.” Disney respects copyright only to the extent that it serves as a charter for corporate abuse of creators, or a means by which Disney can reach beyond its corporate walls and dictate the conduct of its competitors or other industries. When it comes to copyright as a tool for securing the rightful wages of creative workers, Disney exhibits contempt far beyond the taunts of The Pirate Bay or the insouciance of bootleg DVD hawkers in a night market.
Copyright’s power to create worker power has always been oversold, mostly by giant entertainment companies who correctly understood that the more copyright creators got, the more copyright they could expropriate through non-negotiable contracts. Copyright isn’t useless to creators, but it is also no substitute for fair contracting laws, labor organizing, and antitrust enforcement.
His article also looks at a few others ways that Disney is trying to use copyright to abuse, rather than help artists.
Of course, I was curious what organizations, that pretend to “represent the creators,” had to say about all of this, so I went to the website of CreativeFuture. Their website insists that they’re there to help “creative people.” They even have this amazingly ridiculous banner (that they apparently registered a trademark over, because why not?)
So, here’s a story where the industry is literally refusing to pay creative people what they’re contractually owed, for their creations. Surely, CreativeFuture has spoken up about this attack on the livelihoods of creators, right? I mean, the organization even set up a whole hashtag campaign, #StandCreative, to pretend it is “standing with” creators. So, surely, they’ve come out in support of Alan Dean Foster and the SFWA and all of the creators Disney is not paying, right? Right?!?
Huh. Guess not.
Instead, the top article on their website… is attacking EFF, the organization Cory Doctorow works for. Doctorow is out there advocating for artists to actually get paid, while CreativeFuture is attacking his work and pretending it actually supports creatives.
I wonder why CreativeFuture isn’t supporting these creative people? Hmm. I mean, I’m sure that CreativeFuture’s board of directors would be right there at the front of the line demanding that Disney pay the writers it owes, right? I mean, look, let’s just grab a randomly selected CreativeFuture board member and see…
So who is that? Oh, just the senior executive vice president, secretary and general counsel to the… oh…. The Walt Disney Company. Ah, well. That explains it.
Well, I’m sure some of CreativeFuture’s other board members would note his conflict of interest and stand up for the actual creators, right? Hmm. There’s Leah Weil, the General Counsel of Sony Pictures, so that’s not going to work. Oh, and the General Counsel of Warner Bros., John Rogovin, (well until just recently). Well, I’m sure this other person, Kimberly Harris will stand up for… oh, oh I see. General Counsel for NBCUniversal, you say?
Yes, yes, I’m beginning to see why CreativeFuture apparently wants nothing to do with this actual campaign to support actual creators. It might interfere with the interests of the Hollywood studios that set up CreativeFuture as a pure front group in the first place.
You will recall that Lauren Boebert was unsuprisingly confused about what lawmaking power she has as a lawmaker, having threatened to not “extend Micky (sic) Mouse’s trademark”, which is not a power Congress has. Josh Hawley, who has never been shy about threatening private companies over protected speech, at least has straight which law to threaten Disney with.
If you can’t read that, it says:
For years, @Disney has gotten special copyright protections from the federal government – allowing them to charge consumers more. Woke corporations shouldn’t get sweetheart deals. I’ll introduce legislation this week to end their special protections – enough is enough.
It’s not just what you do, but how and why you do it that matters. This is a perfect example. I too don’t want to see yet another extension of the current copyright term. Though, by all accounts, Disney has recognized how untenable further term extension is and hasn’t been lobbying for it at all. Ever since the public domain was allowed to return in the US, Hollywood has mostly accepted its fait regarding works from 95 years ago. But that doesn’t mean I want to live in an America where a select group of state actors can openly threaten private companies over protected speech.
Beyond that, it’s entirely unclear what legislation Hawley is proposing. Disney doesn’t have “special copyright protections”; it has the same protections as everyone else, albeit protections it specifically and heavily lobbied for. It’s unclear what Hawley is seeking to “end”.
The Walt Disney Company has lobbied multiple times to extend certain copyright protections so that their intellectual property would not fall into public domain. The Copyright Term Extension Act of 1998 extended corporate copyright protection from 75 years to 95 years, keeping Mickey Mouse under Disney’s control until at least 2024. These extensions don’t just apply to Disney, though they are the ones pushing the hardest for them.
So by all means, don’t extend copyright terms. Or, hey, even shorten them! But Hawley isn’t going to do that to one single company and he shouldn’t be allowed to do it at all on the basis of speech that he doesn’t like.
A couple of weeks ago, a police transparency activist caught something on video: a cop trying not to get caught on video. That isn’t the interesting part. Lots of cops hate being recorded, even by their own cameras.
This Santa Ana police officer was rolling through a neighborhood — supposedly to investigate a stolen car — and blasting music from Disney movies from his cruiser’s loudspeaker. This is how cops have been rolling lately: firing up big hits from big IP holders with deep pockets in hopes of thwarting uploads or, at the very least, burying them under stacks of DMCA notices.
This move not only attracted the attention of people minding their own businesses in their houses (some emerged to complain about the volume of the music), but it also attracted the attention of city councilmember Jonathan Hernandez, who confronted the cop about his attempt to thwart a citizen’s recording.
Seconds after the music appears to abruptly turn off, a Santa Ana city councilman, Johnathan Hernandez, also asked: “What’s going on with the music here?”
The officer replied it had to do with “copyright infringement” as he pointed toward the man filming the video. Hernandez took that to mean the officer was trying to keep the video off social media.
“Do you know who I am?” Hernandez asks. The officer pauses, then says that he does recognize the city official — and his demeanor shifts.
“You’re not gonna conduct yourself like that in front of my neighbors,” Councilmember Hernandez continues. The officer apologizes to Hernandez, but Hernandez isn’t satisfied: “Apologize to him,” he says, motioning to the camera-holding YouTuber.
I guarantee the officer knows now. The Santa Ana PD has opened an investigation into the blasting of a global media conglomerate’s copyrighted-to-fuck-and-back music to shut down an activist’s recording — something openly admitted to by the officer, who somehow has still managed to keep his name out of the (digital) papers.
“This is a practice that no officer should engage in. There’s no reason to ever behave this way with members of the public, especially if you’re an officer with a badge and a gun,” said Councilman Johnathan Ryan Hernandez, who brought up the matter before his colleagues.
“The practice of utilizing music to deter members of the public from recording (police) isn’t something we’re going to allow to continue,” he added.
But he wasn’t the only one, despite being the councilmember on the scene of the stolen car “investigation” that somehow involved blasting Disney tunes at high volume for the sole (admitted) purpose of preventing activists from recording the officer’s actions and words.
There was a bit of hedging from another councilmember, but it ultimately ended in a full rebuke:
Councilman David Penaloza said that public auditors sometimes cross the line and antagonize police while recording video. But, he added, the public has a right to film city employees while they are working for the public.
“That was one of the most embarrassing things I’ve ever seen,” Penaloza said Wednesday.
Councilmembers may be a dime a dozen (and, to the officer’s credit, it’s probably difficult to pick out councilmembers from a lineup, much less a confrontation on some random street), but there’s only one mayor. And he wasn’t happy either.
Mayor Vicente Sarmiento agreed that the more important issue is that police were actively trying to prevent the dissemination of a video capturing their work. He pointed to well-known cases of police misconduct – Rodney King and George Floyd – that became public issues only after they were captured on videos that were then widely seen by the public.
The city of Santa Ana is considering whether to ban the controversial practice of police blasting copyrighted music to prevent videos of them from being posted to social media.
Sounds great but it really isn’t. It’s pure bullshit. This should not be happening.
First, cops should be in the business of enforcing laws. Their actions should not be so far off the rails they generate new laws. That is sincerely screwed up. No city should have to implement a law to prohibit behavior cops already know is wrong and (in this case) have admitted to on camera while engaged in public disservice.
The Santa Ana Police Department recognizes the right of persons to lawfully record members of this department who are performing their official duties. Members of this department will not prohibit or intentionally interfere with such lawful recordings.
Probably not an offense that leads to instant termination. But why not make an example of this officer? Lord knows, cops and prosecutors love to make “examples” of arrestees by seeking “life +cancer” for tiny-ass drug busts. Why not show the department you don’t condone this action by canning the officer? Maybe he gets his job back once his union gets involved, but at least you can show pissed off citizens and city reps you aren’t screwing around.
Unfortunately, this will end with this cop being the impetus for wasted tax dollars. The law doubles down on existing policy, making the law redundant. And the officer may be sued for First Amendment violations, which means the city is going to spend money defending him, even though it has already declared his actions indefensible.
The most infuriating aspect of this whole debacle is the cop will get away with it. Even if he’s fired, he’ll get his job back. Even if he can’t get his job back in Santa Ana, he’ll have no trouble finding a law enforcement job elsewhere. The public will have its tax dollars wasted pursuing a bill that does nothing more than codify existing PD policy. As much heat as this has brought down on the Santa Ana PD, it remains the only game in town. And since it’s the only game, it can still set the rules, even if it means retaining an employee who openly admitted he was trying to thwart accountability. That’s the real con here. This is not a minor offense. The cop knew what he was doing. But I guarantee he walks away from this unscathed, free to violate rights and otherwise be shitty for years and years to come.
We had mentioned just how pathetically ridiculous it was that the Florida legislature was considering stripping the already unconstitutional Disney theme park exemption fully from the unconstitutional social media bill that was passed, with the help of Disney, just last year. And on Thursday, as expected, the Republicans in Florida’s legislature went ahead and approved that change, as well as another one, stripping Disney of a special provision in Florida law that effectively gives it a kind of sovereign power over all of Disney’s land in Orlando.
So a few quick points on this: (1) the social media bill is dumb and unconstitutional, but the theme park exemption was just the unconstitutional icing on an unconstitutional cake, which only served to highlight just how unconstitutional the whole thing was, so stripping it away is performative nonsense. Disney doesn’t deserve an exemption, but it also doesn’t deserve to have the government punish it for its speech. (2) Same deal with the “Reedy Creek Improvement District” setup, which probably shouldn’t be a thing for Disney. But, again, that’s no excuse to swipe it as punishment. But, most importantly (3) all of the Disney stuff is a misdirection smoke show. Florida politicians, and especially Ron DeSantis want everyone to focus on the faux outrage over Disney, rather than the main purpose of the extra legislative session: to even more excessively gerrymander the state’s districts to completely wipe out two heavily Black districts. That’s the real issue here.
However, gerrymandering is less of a Techdirt topic than free speech, so I did want to go back to the Disney thing. Over the last few months, certainly, we’ve called out politicians, both Democrat and Republican, for this extremely unfortunate trend of threatening companies with potential legislative punishment in response to their speech. Now, most of the time, the politicians (and their often vocal supporters) try to explain that it’s okay if all they are doing is passing a legislative change that should happen. However, we’ve disagreed time and time again: even if you like the legislative proposal, the fact that it’s being done as punishment for speech represents a serious 1st Amendment issue.
At least in most of those cases, though, the politicians in question weren’t quite so dumb as to publicly say that they were doing this entirely as retaliation for speech. It’s usually more of a correlation thing, where the company will do something dumb that politician X doesn’t like, and then politician X immediately announces these performative, grandstanding legislative plans that would punish the company — but they don’t directly say they’re doing it for that reason.
But, this is Florida. And Florida, boy, they do stuff differently down there, don’t they? And in this case, it means that Florida’s Republican politicians are literally bending over backwards to give Disney all the evidence they need to run to court and get these legislative changes declared unconstitutional retaliation. They’re not even trying to do the silly little dance where they pretend there are legitimate reasons for these legislative removes. First up, there was Rep. Randy Fine, when asked by the press if this was retaliation, he just outright admitted of course it was:
Desantis’ lap dog Rep. Randy Fine says that Disney must be punished for not behaving property. “It’s time for them to remember that we are not CA. They are a CA company. And we are not interested in their CA values here in this state.” pic.twitter.com/FCHE7wx5bS
Specifically, he compares this to when he punishes his kids for “acting up,” which is just going to play great in front of a judge:
But here’s the issue, when my 14-year-old or my 10-year-old ask for special privileges? They behave! And they don’t expect those special privileges if they act like jerks. So Disney is learning that they are a guest in this state.
So, yeah, great. You’re saying that you’re retaliating against the company for “acting like jerks” by… speaking mildly out about legislation they dislike. Or, more specifically, here’s a politician flat out admitting that he’s punishing a company for its political speech.
But it gets worse. Florida’s Lt. Governor Jeanette Nunez, who earlier in this stupidly ridiculous culture war flat out claimed that Disney’s executives “have no right to criticize legislation by duly elected legislators” and stated directly that she and Governor DeSantis “won’t stand for it.” So, she had already made it clear that she didn’t believe the largest employer in her state even had the right to criticize politicians (spoiler alert: they absolutely do have that right, because contrary to whatever Florida’s GOP thinks, the 1st Amendment and free speech is actually a thing).
However, just to drive the point home about how unconstitutional this retaliation is, and the fact that the ONLY reason it’s being done is because of the company’s political speech, Nunez doubled down on Newsmax (of course) on Thursday, and when asked if Disney took back what it said, would Florida reverse course on this new legislation — she said it would!
Newsmax host Eric Bolling: "Is there an opportunity for Disney to change their mind and say we will disregard this whole 'woke' agenda…and would the governor then say, 'fine, you can keep your status but we're gonna keep an eye on you now'?"
I mean the whole segment is stupid, but Newsmax’s Eric Bolling (last seen here filing a SLAPP suit against a reporter) asks a stupid question and Nunez just flat out admits that it’s entirely about Disney’s speech:
Bolling: Is there an opportunity for Disney to change their mind and say, ‘we will disregard this whole ‘woke’ agenda.’ We’ll go back to what we originally dealt with, the state of Florida, and would the governor then say, ‘fine, you can keep your status but we’re gonna keep an eye on you now’?How does this play out for Disney? A lot of people like Disney and they don’t want to not like Disney any more.
Nunez: Sure! And we’ve all been to Disney, those of us with small kids have been to Disney. But they have changed their mantra. They have changed what they espouse. It used to be family values. It used to be entertainment that was age appropriate. And now, based on their own admission, they have a not-so-secret agenda to indoctrinate our youth with topics that are very inappropriate.
First off, that’s absolute nonsense. I mean, the only thing Disney “indoctrinates” kids into is the idea that parents need to take out a 2nd mortgage to afford to take their kids there. But really, just the fact that Nunez responds “Sure!” to the idea that if Disney changes its mind, the whole thing might go away — and that the reason for doing this is because of the things the company “espouses,” means this is an exhibit should Disney decide to go to court over this.
This is why we keep calling out politicians who threaten companies over their speech. Because as they get away with it, it only escalates and escalates. We’re going to see a lot more of this kind of nonsense, and the only way to get it to stop is for the courts to smack down these kinds of things for what they are: the government punishing companies for their political speech.
If you want more details on what these bills actually mean for the state of Florida (it would be an absolute disaster), I cannot recommend anything more than Sarah Rumpf’s deep analysis of the impact of the attack on Disney. It quotes tons of Florida experts, including Republicans, admitting that if Disney loses its status, it would wreak havoc on the state’s finances. Also, just the fact that the government is doing this seems likely to scare off businesses from moving to Florida. Miami has been trying hard to set itself up as a tech hub the last few years, but what tech company wants to move there when DeSantis has made it clear he’ll punish you any way he can if he doesn’t like what you say?
I don’t think we’ve ever said anything nice about Disney here, and I don’t think it necessarily deserves the two benefits that the Florida government gave them in the past at all. But the motive here matters. Making these moves as direct retaliation for Disney’s speech violates the 1st Amendment.
It can always get dumber. As you’ll recall, last year Florida man governor Ron DeSantis, as part of his big push to become the new populist leader of ignorant people, pushed for a law to force social media websites to host political content they didn’t want to host. He convinced the subservient Florida Legislature to pass that bill, but not before his staff personally teamed up with lawyers from Disney to insert a buffoonish theme park exemption, that said the law didn’t apply to you if you owned a theme park in Florida. The bill’s author admitted flat out on the floor of the Florida Legislature that this was done to protect Disney from having to worry about the law.
Of course, that was back in the before times, when the GOP wanted to cater to Disney, the largest employer in Florida, and a company that is often deeply connected to that state’s politics. It was little surprise that the company was able to get that obviously, blatantly corrupt and silly carveout, because that’s how it works.
But, over the past month or so, the idiotic narrative has shifted, and now Disney is part of the latest dumb culture war, based on it coming out against a differently stupid culture war bill from DeSantis to enable parents to sue teachers for teaching anything the parents feel is inappropriate for the age of their children — a law that has no purpose other than to create a massive chilling effect in classrooms.
Leaving aside the constitutional issues with that bill, the social media bill was quickly tossed out as unconstitutional on multiple levels by a federal district court judge. Florida has appealed, and that case will be heard soon. While the judge mentioned the Disney exemption, it mattered very little to the overall analysis of why the bill was unconstitutional. It was just, shall we say, additional color. Without it, the ruling was clear, the bill would still be equally unconstitutional. However, the judge noted that the exclusion itself was problematic:
The State asserted in its brief that the [Disney exemption] provision could survive intermediate scrutiny, but the proper level of scrutiny is strict, and in any event, when asked at oral argument, the State could suggest no theory under which the exclusion could survive even intermediate scrutiny. The State says this means only that the exclusion fails, but that is at least questionable. Despite the obvious constitutional issue posed by the exclusion, the Legislature adopted it, apparently unwilling to subject favored Florida businesses to the statutes’ onerous regulatory burdens.
But, of course, now that Disney is no longer a “favored Florida business,” DeSantis (again, his own Legislative Affairs Director, Stephanie Kopelousos, worked with Disney and the legislature to insert — in her words — the “New Disney Language” into the bill) wants to take this benefit away.
Just so we put this all in perspective: Ron DeSantis pushed for and passed an unconstitutional social media content moderation bill, which included an equally unconstitutional carveout for Disney, to protect the largest employer in his state. The following year, because of Disney’s timid opposition to another unconstitutional bill, DeSantis now wants to remove the unconstitutional exemption to the unconstitutional bill to punish Disney for its political speech.
Can they all lose?
DeSantis has put out a proclamation seeking to have the Florida Legislature (who, remember, his office gave the Disney language to) remove the Disney language to punish them. Florida’s legislative session already wrapped up last month, but DeSantis has called them to a new special session for what appears to be a “bash Disney” special session. There are apparently some other anti-Disney proposals that he wants them to consider as well, but the key one is now to remove this exemption.
So, to be clear: Disney is a terrible company for many, many reasons (often detailed here). The social media bill is clearly unconstitutional. The Disney theme park exemption was both unconstitutional and a shameful public display not just of the corrupt level of coordination between Disney and the government, but the shamelessness with which they knew they could do that kind of meddling. The exemption shouldn’t exist. The law shouldn’t exist. The education law is equally problematic, and a full frontal attack on teachers’ autonomy in creating the best lesson plans for students.
But, deliberately attacking a company, and making legislative moves to punish that company in direct response to that company’s speech (especially political speech) is also unconstitutional retaliation. Even if the underlying move — getting rid of the exemption — is the right thing to do. What’s even more ridiculous is that by doing something like this, DeSantis hands Disney all the ammo it needs to go point out that this is retaliation for its political speech (though, in this case, they’re unlikely to bother, since the entire bill is going to be tossed out as unconstitutional anyway).
Of course, it’s quite clear that DeSantis honestly doesn’t care about what’s constitutional, or what’s right, or what’s in any of these laws. He wants to run for President in 2024, and the only way to do that is to fuel the moral outrage machine better than the last President.
And so here we are. In the most ridiculous place on earth.
Cops may have only the vaguest grasp on the laws they use to initiate stops, but they sure as hell understand copyright law. With algorithms doing the heavy lifting to prevent copyright infringement, cops have deployed a new tactic in hopes of preventing accountability activists from livestreaming or uploading their interactions with officers.
When the citizen-deployed cameras start recording, cops play recordings of their own, hoping to trigger auto-blocking of uploads and livestreams by processes designed to recognize and prevent uploads of infringing content. At the very least, officers are apparently hoping to rack up copyright strikes on activists’ accounts, pushing them closer to permabans or deletion.
This tactic hasn’t really been all that effective. If the goal is to make law enforcement officers look like thugs who believe they’re above accountability, then consider it a success. But if the goal is to prevent these recordings from going live, it has failed to accomplish that.
Unfortunately, this string of highly-publicized failures isn’t preventing cops from utilizing this bullshit anti-accountability tactic. A documented failure of success must just mean officers are due for a win. And, in this case reported by Julian Mark for the Washington Post, officers are no longer limiting their abuse of copyright law to one-to-one interactions.
It was around 11 p.m. on April 4 on a residential street in Santa Ana, Calif. — and the Disney songs blared from a police cruiser, according to a YouTube video and news reports. Police had been investigating a stolen vehicle, an officer explains in the video. But after “Un Poco Loco” from Disney’s 2017 movie “Coco” started blasting through the neighborhood, residents began asking questions.
“What’s the music for?” a woman can be heard asking in the video, explaining that she needed to sleep.
Seconds after the music appears to abruptly turn off, a Santa Ana city councilman, Johnathan Hernandez, also asked: “What’s going on with the music here?”
The officer replied it had to do with “copyright infringement” as he pointed toward the man filming the video. Hernandez took that to mean the officer was trying to keep the video off social media.
Fortunately, the intervention of this councilman ended the officer’s public performance of Disney music — something the Santa Ana PD almost certainly does not have a license for. The music was shut off. The councilman pointed out he was “embarrassed” the officer was treating his neighbors this way. The officer then apologized.
Here’s the tail end of that interaction, as captured by the man whose recording the officer was trying to shut down:
And now that officer is under investigation. Santa Ana PD Chief David Valentin says the incident is being looked into and the actions caught on YouTube tape appear to violate his expectations that officers “perform their duties with dignity and respect in the community.”
Nobody’s going to get fired for this. But it’s another failed censorship-via-copyright attempt. And you’d think that would force more officers to reconsider deploying this tactic when being filmed. But if officers aren’t expected to know the laws they’re enforcing, it’s unlikely they’re capable of learning a lesson from yet another blatant attempt to shut down citizen recordings. If cops aren’t worried about the public’s retaliation, maybe it’s time for Disney’s dozens of high-priced lawyers to start asking questions about this apparent misuse of intellectual property.
In the pantheon of aggressive intellectual property bullies, Disney certainly would be one of the companies that would be competing to be Zeus. Disney has simply never seen an opportunity for IP enforcement that it hasn’t acted upon, be it copyright, trademark, or anywhere in between. More to the point for this post, Disney also has this fun mindset that even if it isn’t going to use an IP it owns, it doesn’t like it if anyone else does, either. On the topic of copyright specifically, this would represent a full departure from the purpose of copyright law: to encourage the creation and release of content in exchange for a temporary monopoly on that content.
Remember Club Penguin? That was the name of an online game/community, once independent, which Disney acquired in 2007 and spent the following decade running directly into the ground. The site and service, once beloved by the public, was fully shut down in 2017. Disney attempted to use the Club Penguin name by releasing a mobile app version of Club Penguin called Club Penguin Island. That mobile app was panned by Club Penguin fans and was shut down in 2018, a little over a year after its release.
But fans of the original independent Club Penguin lived on. In 2020, a group of fans released Club Penguin Online, run by fans in a completely unlicensed scenario. Disney fired off DMCA notices and got CPO taken down. To be fair to Disney, many at the time postulated that these actions were due to some extremely gross and illegal predatory behavior that was being conducted upon children on the CPO servers by some users. But to be fair to the law, that isn’t what copyright is for. There are already other laws designed to deal with such predators.
Besides, it’s 2022 and here we are all over again, with Disney working with City of London police not only to get another Club Penguin fan-run site shut down, but to actually get three individuals running it arrested.
In an emailed statement to TechCrunch, Detective Constable Daryl Fryatt from the Police Intellectual Property Crime Unit (PIPCU) at City of London Police said:
“Following a complaint under copyright law, PIPCU have seized a gaming website as part of an ongoing investigation into the site.Three people were arrested on April 12 on suspicion of distributing materials infringing copyright and searches were carried out.They have been released under investigation and to aid with the police investigation, they agreed to sign over the website to the control of PIPCU.”
Note the total lack of any accusation of racism, terrorism, or child predatory behavior in that statement. By all accounts, there doesn’t seem to be any indication here that this has anything to do with anything beyond Disney enforcing its copyright for Club Penguin. A copyright that, by the by, it has done absolutely nothing with for several years now.
In other words, Disney isn’t going to use this IP, and the public can’t use it either. So who gets to play the beloved Club Penguin in any form? Nobody, that’s who. Why? Because Disney would rather choose to enforce its copyright on a moldy piece of culture rather than let anyone else enjoy the meal.
And, we shouldn’t let the City of London police off the hook here either. Their actions have been well documented on Techdirt’s pages before. As everyone will remind you, this is not the Metropolitan Police Service in London. This is a law enforcement arm of “the City of London” which is a one-square mile chunk in the middle of London, where that police force long ago decided that it was going to become Hollywood’s personal thugs. They have a long history of overly aggressively attacking the internet, assuming everyone is a criminal. They have literally claimed that 90% of the internet is a risk to society. They’ve been able to inject “this website has been reported to the police” onto websites with no due process. They’ve arrested people on sketchy logic before. They’ve tried to argue that domain registrars are criminally liable for actions done by websites. And they’ve had some of their previous fever dream arrest cases over copyright fall apart.
Basically, they’re the police force that Hollywood has always wanted, and they’re happy to oblige, without ever recognizing that the world isn’t what they think it is, and some fans remembering a community they loved, even one owned by Disney, is not a criminal offense.
Again, this is the opposite of the intention of copyright law. Copyright wasn’t designed to refuse the public access to culture. It was designed to promote more access to culture by the public. It seems that this is yet another example of a design flaw within the law — and it’s sad that the City of London Police are so happy to abuse their power to lock people up to continue to pervert the intention of copyright law.
