This is a strange new era for the free speech movement. We are fighting for the right to say what has already been said.
Often a major political setback marks the birth of a revolution, and that is precisely what many of us began hoping for last week when the Supreme Court ruled 7-2 in the Eldred v. Ashcroft case - upholding the Sonny Bono Copyright Term Extension Act, so that copyright on an original work now lasts an additional 20 years. (Copyright used to last for the life of the work's author plus 50 years, or 75 for copyrights owned by corporations.)
When the ruling came down, free speech advocates across the country expressed outrage, calling it a terrible insult to the First Amendment and a blow to democracy. But why? Doesn't copyright protect the rights of creators? Shouldn't any law that beefs up copyright be a benefit to people who want to speak their minds?
Those questions, which are legitimate ones, assume that censorship grows out of prudery and political ideology. After all, advocates of free speech throughout most of the 20th century fought to make the United States a place where people have access to all points of view, no matter how sexually detailed, politically radical, or shocking. Freedom of speech meant Huckleberry Finn, leftist speeches in UC Berkeley's Sproul Plaza, and of course, Hustler magazine. Members of the Motion Picture Association of America give money to organizations like the American Civil Liberties Union because they want to protect mass culture from government regulation.
And yet the MPAA found itself facing off against free speech activists in Eldred v. Ashcroft. During the trial Stanford law professor and public domain activist Lawrence Lessig argued that extending copyright would violate the First Amendment because it would unfairly limit people's ability to create works that grow out of copyrighted materials. At first glance, this seems like a weird idea. Why should anyone protect my right to rip off other people's free speech and use it in my own work? That's exactly what MPAA CEO and chair Jack Valenti wants to know. His organization is ecstatic about the ruling: now entertainment companies can make even more money off their copyrighted possessions. AOL/Time Warner can milk Batman for another 20 years. Disney Corp. can cash in on Mickey Mouse for another 20 years. And so on.
Let's look at one hypothetical example of how the Eldred decision limits free speech. Say I want to make a darkly comic movie about a kid who develops an incestuous relationship with Mickey Mouse, whom she has turned into an imaginary playmate she calls "brother." She and Mickey hide under the covers and play doctor; they visit Disneyland and show each other their private parts in the animal-shaped bushes outside the "It's a Small World" ride. There is no way in hell the folks at Disney are going to let me make this movie -- Mickey belongs to them. They'll throw so many lawyers at me I'll be eating subpoenas for breakfast. And the thing is, my movie isn't going to be the same without Mickey. Sure, I could invent a character called Wiggly Pig to fill the role, but this flick won't be as creepy and culturally resonant if I can't bring in a character who is practically a part of American mythology. Because Disney owns the copyright on Mickey, my story has been censored.
But I haven't been censored for traditional reasons. The problem isn't the potential obscenity of my tale, or even its political implications. I'm being denied my right to free speech for financial reasons. Disney doesn't want me diluting its character because it might make less money off him. Disney also doesn't want me making any money off an icon it invented.
Yet Mickey has been around for so long he's a part of U.S. history -- he's an icon, like John Wayne or George Washington. Mickey should belong to all of us. He stands for a lot more than Disney's coffers. He's the symbol of cuteness and childhood and American pluckiness in the face of danger. If I can't tell stories about Mickey, it's almost like being told I can't tell the truth about America. I don't mean to get too grandiose here, but I think you see my point.
Free speech these days is about taking our stories back from corporations and using those stories as we see fit. Eldred v. Ashcroft makes it clear that the First Amendment is an instrument of a kind of class warfare: Those who are culturally wealthy refuse to share with those who are not. And activists like Larry Lessig are the Robin Hoods of our day, trying to make sure we cultural peasants have the tools to be as creative as we like.
One could take this Robin Hood analogy too far. I'm not talking about stealing an artist's ideas or works when that artist is alive, depriving him or her of income or a reputation. I'm talking about using that artist's stories to tell our own, allowing creative works to pass back into the public domain once their creator no longer needs to make money from them. That way, we will actively engage with our traditions and be enriched by the tales history has left us.
Annalee Newitz is a surly media nerd who thinks the revolution is just beginning. Her column also appears in Metro, Silicon Valley's weekly newspaper.