Stop The Presses: Disney Tells Court About The Importance Of The Public Domain

from the that-disney? dept

As you may know, Disney has something of a reputation when it comes to copyright and the public domain. While the company itself is somewhat notorious for taking works from the public domain, putting its own animated spin on it and then claiming copyright as far as copyright will take them, it also was the prime mover in extending the term of copyright back in 1998 in the “Sonny Bono Copyright Term Extension Act,” which is often referred to as the Mickey Mouse Protection Act. It holds that nickname because Disney lobbied heavily for the Act and because it prevented Mickey Mouse from reaching the public domain. As Tom Bell has shown, there’s a well-known Mickey Mouse curve that shows copyright extending basically every time Mickey Mouse is about to hit the public domain:




So it’s not often you see Disney out there defending the public domain — and the importance of keeping it vibrant and supported by new things. However, that seems to be (sort of) what Disney is, in fact, arguing in a Supreme Court case known as Kimble v. Marvel. There are, of course, a bunch of caveats here. First, it’s a patent case, not a copyright case. Second, it’s Marvel, not technically “Disney,” but Marvel is wholly owned by Disney. The case involves what appears to be a fairly straightforward question: can a patent holder demand royalties after a patent has expired. The obvious answer to this question is “hell no.” And, in fact, that’s exactly what the Supreme Court itself said in 1964 in Brulotte v. Thys Co.:


“We conclude that a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.”

But, because there can always be questionable rulings, there was another court ruling that (bizarrely) found that you can get a license for something that was never patented if you work out an agreement to that nature (that’s Aronson v. Quick Point Pencil). This has made things messy.

In this case, some Spiderman fans patented a an invention of a toy that could shoot webs out of the toy’s wrists, a la Spiderman. Marvel bought the patent from the inventors, promising a royalty if the company made such a toy, which it did. The patent expired in 2010 and Disney/Marvel stopped paying. The inventors sued… and have so far lost twice in the lower and appeals courts. The issue is now before the Supreme Court, with the direct question of whether or not the ruling in Brulotte should be overturned. Hopefully, it will not be. Once something is in the public domain it should stay there. And that is exactly what Disney/Marvel is arguing — in ways that seem somewhat antithetical to the company’s stance on copyright. Take this for example:


An essential part of the bargain at the heart of the patent
system is that, when the patent term ends, all rights
associated with the patent terminate and the patented
idea is committed to the public domain for the free and
unrestricted use of all. The same policy concerns animate other well-settled patent precedents, including
the rule that a licensee may not be required to continue
to pay royalties after a patent is invalidated. Private
parties are properly forbidden from attempting to
evade those congressional judgments.

Just switch out copyright for patents and you see how this looks quite out of place for Disney to be arguing, since it has fought incredibly hard to make sure that the “end” of the copyright term is an amorphous, ever changing concept that is always in the future. And then there’s this incredible statement, warning of how horrible it would be if royalties might accumulate forever:


If anything, modern developments underscore the need to
protect the public domain from the aggregate toll of patent royalties that would accumulate forever

You don’t say, Disney. How very, very interesting…

Hopefully the Supreme Court makes quick work of this and sides with Disney in protecting the public domain on patents. But it will be interesting to see these statements come back up a couple of years from now as Mickey Mouse nears the public domain again, won’t it?



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Companies: disney, marvel

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Comments on “Stop The Presses: Disney Tells Court About The Importance Of The Public Domain”

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75 Comments
antidirtsays:

You’re conflating two separate things. Lobbying for a longer term has nothing to do with arguing that a licensee isn’t required to pay royalties once that term ends. Those positions are entirely consistent. Why pretend otherwise, Mike? I know you hate Disney and want to bash them, but the post makes no sense.

PaulTsays:

Re:

Is it me, or are there a lot of you fighting invisible demons and attacking Mike rather than the points being made this week? A nerve has been struck, it seems.

Anyway, if you have a shred of honesty, I’d re-read the article and locate the actual point being addressed, because you completely overlooked it.

Ninjasays:

Re: Re: Re:

Are you talking about yourself and mentioning Mike? You keep talking about that discussion but all you do is ask why SOPA would break the internet even though people keep pointing you to the article that answers it. I”ll do it again:

https://www.techdirt.com/articles/20111122/04254316872/definitive-post-why-sopa-protect-ip-are-bad-bad-ideas.shtml

Stop being an obnoxious moron.

That One Guysays:

Re: Re: Re: Re: Re:

Now, are we talking FUD to the tune of ‘Piracy costs us billions of dollars in lost profits per year, and the record and movie industries are on the brink of collapse because of it!’, or just regular level FUD?

If you think the points raised in the article are wrong, then by all means, provide counter-evidence to support your position. Just trying to dismiss something by claiming it’s FUD doesn’t actually do anything to support your claim.

Pragmaticsays:

Re: Re: Re: Re: Re: Re:

Antidirt believes that copyright is property. He will not, to the least degree, entertain the notion that Constitutionally, it is not.

So he huffs and puffs, hoping to blow logic and truth down by means of attrition.

It is somewhat entertaining if you’re in the right mood but for the most part it’s annoying to those of us who are members of the reality-based community.

Anonymoussays:

Re: Re: Re: Re: Re: Re: Re:

No, the precise question “Is a copyright or a patent ‘property'” has not to my knowledge been definitively answered by the Supreme Court, so its status is not clear. That said, it is easy to read the “tea leaves” from dozens of statutes and court decisions at all levels (state and federal), and those “tea leaves” leave me with little doubt that copyrights and patents would be deemed “property” as that term is used in the 5th Amendment. After all, 28 USC 1498 regarding infringements by or for the US is predicated precisely upon the applicability of the 5th Amendment, and in numerous Supreme Court cases intangible rights such as these have been approvingly received and viewed as “property”. See, e.g., Ruckelshaus v. Monsanto dealing with trade secrets.

Ninjasays:

Re:

Dude, read the article again, slowly. Disney is arguing how a vibrant, dynamic Public Domain is necessary to help further developments and derived works while fighting tooth and nail to extend copyright terms that, sit down, breath deeply… deprive the Public Domain from being vibrant, dynamic.

I know, I know that intellectual work is not your strong point but that’s what happened here. Sorry if your head explode out of the effort to understand it.

Ninjasays:

Re: Re: Re:

Really?

That’s the portion that reminds us of Disney leading the efforts to extend copyright terms (feel free to click the link for further explanation but be sure to at least READ this article, you still haven’t done it):

As Tom Bell has shown, there’s a well-known Mickey Mouse curve that shows copyright extending basically every time Mickey Mouse is about to hit the public domain

Then Disney defending Public Domain:

If anything, modern developments underscore the need to protect the public domain from the aggregate toll of patent royalties that would accumulate forever.

You know, the Public Domain isn’t restricted to fairy tales.

I would make some acidic joke on the doctors dropping you head first when you were born but I lost the words to your ability to be stupid (or fake it genuinely).

Anonymoussays:

Re: Re: Re: Re:

Tom tends to engage in hyperbole, which better suits the attention-grabbing headlines he crafts. Perhaps you can show me where it was that Disney engaged in the preparation and drafting of the Berne Convention, an international agreement that associated copyright terms with the life of an author (See: Article 7 of the Berne Convention of 1886 as originally approved…”life of author plus 50 years”). Back at that time US copyright law comprised a fixed term of years, with a renewal option for a second like term. Under the 1909 Act the term was for 28 years from first publication, with a second 28 year term being available if applied for. The addition of 20 years under the CTEA (AKA, The Sony Bono Act) derived from yet another agreement emanating from the European Union. Perhaps Disney had a hand in preparing that agreement, but it seems unlikely.

Votresays:

Re: Re: Re: Re: Re:

If you followed the story and machinations behind the Sony Bono Act you’ll see it was all about protecting the Micky Mouse franchise. Micky was deamed a “national treasure” and too important a part of our “national culture” to allow the sneaky Chinese to start re-purposing or profiting off it. Anything else that followed was entirely secondary for the legislators that put it through.

antidirtsays:

Re: Re: Re: Re:

None of those quotes discusses a “vibrant, dynamic” public domain. Regardless, believing in such a public domain is a separate issue than when Disney thinks works/inventions should enter the public domain. One can believe the public domain is important, yet think that terms should be extended/maintained/shortened.

Pragmaticsays:

Re: Re: Re: Re: Re:

If the public domain is important, terms should be shortened, since nothing made in the year I was born is going to enter it in my lifetime. Making extended terms retroactive actually robs the public domain.

So, no, you can’t believe the public domain is important if you think they should be either extended or maintained as they are. 28 years is long enough.

JP Jonessays:

Re:

The point is that we have two situations. The first situation is one where Disney lobbies heavily for copyright extensions designed to keep their creation out of the public domain. The second situation is, after licensing someone else’s patent, Disney is arguing that it’s important for creations to enter the public domain.

Of course the positions are consistent, from a greedy “what’s best for me” position. They like extensions to intellectual property when it’s their intellectual property, but they like when things enter the public domain so they can scoop them up (and then probably try and protect the rights from others).

The point is that it’s ironic that one of the biggest lobbyists arguing to extend IP protection for as long as possible is currently arguing in court that they should be able to utilize an expired patent without paying royalties to the creator.

Either way, you are again looking at things purely from a legal standpoint and not from a reality standpoint. This article makes perfect sense to someone who isn’t only looking at the legal arguments. Legally, Disney is “correct.”

But that doesn’t mean they’re not still giant hypocrites.

antidirtsays:

Re: Re:

I don’t see it. They think when something’s in the public domain, a license (contract?) should be unenforceable. That’s orthogonal at best to the issue of when something should enter the public domain. Are they interested in what’s best for them? Shocker. Who isn’t? This post is just desperate, mindless bashing.

JP Jonessays:

Re: Re: Re:

Ok, read this next bit really slowly:

If anything, modern developments underscore the need to protect the public domain from the aggregate toll of patent royalties that would accumulate forever.
– Disney Lawyers

Now, put that into the context of a company that has lobbied heavily throughout it’s entire history for extending the duration of intellectual property protections.

Now, go back to the quote where they talk about protecting the public domain from trolls that want their royalties to “accumulate forever.” Now think about how Disney has spent millions of dollars trying to ensure that their own ownership of Mickey Mouse accumulates forever.

I know, sometimes irony is a difficult thing to grasp. This is complicated, high level stuff, and it’s not something that was even argued in court! I know it’s hard for you to accept that there are truths that haven’t been determined by court precedent. Sadly, irony is not yet settled case law (but probably should be).

But it’s real, and it applies here. You’re completely hung up on the details of this specific case, in that the patent had already expired, so clearly the royalties should not continue (which is obvious to you, obvious to Mike, and obvious to the courts).

But that isn’t relevant to the irony; the point is that Disney has claimed in court that extending patent protection indefinitely is a bad thing when they’ve argued for extending copyright protection since the company founded. I know you can’t see it, but that’s your lack of imagination and intelligence, not Mike’s.

Sorry.

Sheriff Fatmansays:

Re: Re:

Be fair, her reign has a solidly consistent record of decolonisation. When she came to the throne, we’d only just let go of India, and still ruled large chunks of Africa and some significant real estate in Asia. Now the British Empire is more or less some tax havens in the Caribbean, a few sheep in the South Atlantic, and a rock in the Med that we’ve only kept hold of because it annoys the Spanish so much.

Anonymoussays:

“But it will be interesting to see these statements come back up a couple of years from now as Mickey Mouse nears the public domain again, won’t it?”

I’m curious to know how that sort of thing actually works in the legal system, since it’s not uncommon for a company’s lawyers to present a staunch arguement in one lawsuit, and then have another set of lawyers make the exact opposite argument in another suit — and succeed both times.

While to the outside observer this might demonstrate a clear example of hypocrisy when viewed in the big picture (nonwithstanding the standard response of “that was different”) it just seems like a corporation can indeed have it both ways.

Davidsays:

Disney copies Public Domain at every opportunity

Pretty much all their Princesses come from Public Domain material, and then they copyright the hell out of their version of story to block other copies.

The reason they are now arguing for Public Domain now is that it’s getting harder to find good Public Domain material to copy, produce, and copyright.

Mark Bsays:

This is a contract not a license

From the wording in the article, I read as: the original patent holder sold the patent in exchange for royalties. They did not retain ownership of the patent to charge a license to use it to receive royalties. It is moot whether the patent expired since the terms of the contract were for a sale not a license.

Anonymoussays:

Re: This is a contract not a license

I think that makes sense, but the law is unclear on that. At any rate, this isn’t about the “public domain”, since anybody other than Marvel (who signed a royalty contract) can practice the patented invention freely. It’s only the people who said they would pay a royalty if they did so that are somewhat restricted (by the agreement they chose to sign).

Coyotysays:

Re: This is a contract not a license

This is my provisional take on the situation. The provision is whether there was a time period stated in the contract for the royalties. If the contract states a period that extends beyond the patent’s expiration, then Marvel should be obligated to pay. If no period is stated, then payments can cease upon the expiration. It’s each party’s responsibility to know how patents work and put any desired amendments in the contract, and to comply with the amendments.

Anonymoussays:

The oft repeated statement that Disney is “taking” from the public domain makes it sound as if the company is simply copying existing works that are not encumbered by any copyrights. This is simply not true. Yes, like everyone else the company does look to the past for ideas, but quite unlike so many others the company invests considerable time and effort to take those ideas and create new works of authorship that are incredibly original and make significant contributions to our popular culture.

It is easy to bash the company because its works have benefited from the expansion of copyright terms, but to say it is “taking” things is just plain wrong and misleading to a fault.

Anonymoussays:

Re: Re:

In terms of US legislation, it has lobbyists who seek to promote its interests whenever possible. The genesis for the extension of copyright terms, however, did not come from the US. It came from Europe (most notably France), and was ingrained as a provision is various international treaties that for many years (almost a century in the case of Berne) the US refused to embrace.

Ever wonder why we changed our laws back in the 70’s? It was because the US long before came to the realization that it was an outlier in the international community in matters of copyright law, and as a consequence of which US authors were quite often getting shafted in foreign markets.

Quite frankly, I happen to believe that the basic concepts embodied in our 1909 Copyright Act represent a better model that what is now the international norm. Unfortunately, once the genie is out of the bottle it is damn near impossible to stuff it back in, so it looks like long terms are here to stay for the indefinite future.

naschsays:

Re: Re: Re:

Ever wonder why we changed our laws back in the 70’s? It was because the US long before came to the realization that it was an outlier in the international community in matters of copyright law, and as a consequence of which US authors were quite often getting shafted in foreign markets.

Are you claiming that lobbying from the US copyright industries had nothing to do with it?

JMTsays:

Re:

“It is easy to bash the company because its works have benefited from the expansion of copyright terms…”

You’re right, it is easy to bash the company because its works have benefited from the expansion of copyright terms that they spent tons of time and money fighting for.

“…but to say it is “taking” things is just plain wrong and misleading to a fault.”

Of course they’re “taking” from the public domain, that’s exactly what is supposed to happen. They’re being criticized for then going to great lengths to prevent others from doing the same thing with their works.

Davidsays:

No contradiction here

Disney argues that any royalty arrangement terminates once the respective work enters the Public Domain. But Mickey Mouse never did so and does not intend to do so in future.

You can make a royalty contract about Mickey Mouse for 500?years. It will terminate in 500?years or when Mickey Mouse enters the Public Domain, whichever of the two happens first. Probably the former.

If the Spiderman web shooters had wanted to keep royalties for longer, they should have lobbullied Congress for an extension of patent durations timely. Since they didn’t, the patent expired, rendering the royalty arrangement moot.

They did not do their homework and did not grease enough corrupt politicians timely. Probably their franchise would not have had the money to do so anyway. Poor losers.

Anonymoussays:

Re: No contradiction here

Not do be a d**k but this guy is sort of right.

It’s no surprise that Disney considers public domain as a GOOD THING. Disney was, and still is in some aspects, BUILT ON PUBLIC DOMAIN. They love TAKING from the public domain.

What Disney dislikes is CONTRIBUTING to the public domain.

You want good laws, you gotta pay for them.

That One Guysays:

Re: Re: No contradiction here

Yeah, they love half of the public domain, the part where you can take the ideas and creations out of it for free, and build upon them. What they loathe is the other half, the part where you in turn add your ideas and creations to it so other people can use them and build off of them.

They’re parasites basically, taking, but never giving.

Davidsays:

Re: Re: Re: No contradiction here

It all falls into place once you recognize there is the Old and the New Testament of the Public Domain, and they are separated by the death of our savior Walt Disney. All that were alive when he died and returned corporationally to Earth will be forever safe from the Public Domain, and so will all of their subsequent offspring. The rest belong to the old covenant and will eventually fall into the Public Domain from which all Disney stories spring.

JP Jonessays:

Re: No contradiction here

The article isn’t about a contradiction in the facts of the case. As Mike points out in the original article:

The case involves what appears to be a fairly straightforward question: can a patent holder demand royalties after a patent has expired. The obvious answer to this question is “hell no.” And, in fact, that’s exactly what the Supreme Court itself said in 1964 in Brulotte v. Thys Co.

Nobody is arguing that this is wrong or even a contradiction (the opposite, in fact, which is why the case has gone nowhere). There is some case law that makes it slightly unclear (hence the only reason it’s in court at all) but Mike pointed that out as well.

The issue is the irony of Disney’s statement that “modern developments underscore the need to protect the public domain [from patent royalties] that would accumulate forever.” This is from a company that has heavily lobbied for extensions of copyright terms from the more reasonable 28 or 42 years to 75 years or life of the author plus 50 years then to 95/120 years or life of the author plus 70 years. This was specifically designed to prevent its own intellectual property from entering the public domain.

So, for a company that his historically fought tooth-and-nail to prevent their own products from entering the public domain to point out how important it is to ensure other people’s products enter the public domain in a reasonable amount of time is hilarious.

It’s like North Korea calling out the United States for human rights violations. Technically they’re correct, however, their own policies make the accusation ironic considering the stance of the source.

That’s all that happened here; Mike called out Disney for encouraging a stance that, historically, they’ve done everything they can to avoid. It’s ironic, nothing more. Disney is going to win their court case (and should). They still have a stranglehold on Mickey Mouse for perfectly legal (but ridiculous) reasons.

limbodogsays:

This is familiar.

This is not odd at all. It is no more weird than Verizon arguing for Title II one moment, and against Title II the next whenever either suits them. It’s not that they forgot the former, it’s that they don’t actually care about the law, only its effects. One costs them money, the other doesn’t, so they go with the one that doesn’t.

It’s not ironic if you look honestly at the motivations.

That One Guysays:

Re: This is familiar.

Pretty much. They’re for a vibrant public domain here, because it saves them some money. When it comes to actually upholding their part of the ‘deal’ and putting stuff into the public domain though, suddenly ‘Eternal copyright is the only proper duration for it, won’t you think of the zombie writers and artists?!’

Votresays:

The only reason Disney is arguing for Public Domain is because they routinely harvest it for their own creations. So while they’re all for PD when it comes to their taking something, they’re adamantly against it whenever it applies to them.

That’s called “enlightened self-interest” in some circles.

Sometimes you just have to stand back in amazement over the sheer balls of a whole-hearted thief.

DBsays:

I think that Mark B has the essential argument.

The inventor sold the patent. Part of the sale agreement was a payment when the invention was used. It was the equivalent of a patent royalty, but it was not exactly that since they transferred the patent.

Disney/Marvel waits until the patent expires, and starts selling a toy with the feature. They ignore the terms of the sale contract and don’t make the additional payment. When taken to court their defense is that the invention is now public domain and they are free to use it.

Disney wants this to be a patent case. The inventors want this to be a simple contract case.

Anonymoussays:

Re:

Keep in mind that the current copyright terms in the US conform to the maximum allowed under international treaties to which the US is a party. Future extensions under US law, if any, would require convincing treaty parties that a longer term is appropriate, amending the treaties, and then enacting enabling legislation in the US. Much, much easier said than done.

Anonymoussays:

Re: Re:

Haha, maximum? International treaties? Governments regularly cocksuck each other over copyright terms, claiming that longer terms are needed to remain “competitive” or something. What do you think all those political donations were for?

Funny how you lot insist on doing everything on the up and up, but you’ll keep all your discussions and dealings secret and insult anyone that calls you out on it.

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