Van Helsing and the Public Domain

Greg London email at
Mon May 10 00:52:18 EDT 2004

J.B. Nicholson-Owens said:
> And yet Disney refuses to contribute their work to the PD from which they
> continue to draw so much value.

It's that sort of naive pseudo-argument that gives
Free/Libre/Open/Public groups the image of being
some sort of fringe-element community-property
bunch of loons.

the Public Domain is NOT meant to be a resource
upon which all derived works must also be Public Domain.
The whole POINT of public domain is to be able to
build upon that and create something that is PRIVATE
and license it anyway you want, including All Rights Reserved.

The fact that Disney does this is no different than
the fact that anyone who writes anything is taking something
from the public domain and making it private.

You are fighting the wrong battle.

Or, at the very least, you are fighting the right
battle, but using words that sound like
Karl Marx's wet-dream of pure Communism and
community property, and so gets Free/Libre/Open
ideas dismissed by the American Majority as a
bunch of wackos.

The problem is not that Public Domain works
are made private and labeled "All Rights Reserved".

The problems are:

1) The DMCA subverts all Fair Use by simple application
         of the most rudimentary encryption algorithm
2) Copyright Duration is absurdly long
3) software can be patented
4) Except for a few (and irrelvent to today's technology)
         cases enumerated in the 1976 Copyright Act,
         "Fair Use" is left to the decision of a Judge,
         which therefore requires a truckload of money
         to see a court case to its conclusion.

The fact that Disney fought to have copyright term
EXTENDED just before Micky Mouse and Steamboat Willie
were about to enter the Public Domain, now THAT is a
more interesting fight.

It's even more interesting when you discover that
Disney made millions of dollars of political contributions
up to and after the CTEA was passed.

Eldred (in Eldred v. Ashcroft) attempted to correct this,
but the Supreme Court failed to recognize a constitutinal
breech for what it was. Which is disappointing, given the
supreme court invented teh term "Fair Use" and has a long
history of extending its defintion.

The only way to correct 1 through 4, barring a large number
of massively expensive and possibly fruitless court battles,
is to win the hearts and minds of the American Majority.
And to do this, you have to be clear about what you are
fighting for, and choose your words carefully so that the
Disney's and Jack Valenti's and Microsoft's of the world
can't point to something you said and say "these people
want anarchy" and have people at home nod their heads in

At that point, the battle is lost.

It is not enough to be right about making Disney wrong.

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