But I think that here is where the things went wrong. We should NOT have made Mickey the focal point of our campaign. This drove the wrong idea into the minds of the public at large and to the Supreme Court specifically. We let the greed that drove Disney and their minions to lobby Congress to pass this act get to us and color our response. We wanted to get back at those greedy bastards and expose them for what they are. And we did that.

But in the final analysis we lost for this very reason. The arguments presented to the court placed the fight as one over greed and property rights. And when faced with a challenge to property rights, the courts usually (and thankfully does) come down on the side of the property owner. Property cannot be taken without good cause. Without this natural bias, the property rights of the average American would have been trampled long ago.

But in framing the argument as a ownership dispute over property, the Court, too, erred.

In Civil Rights, the Court has a long tradition of looking at the purposes and effects of the laws in front of it and its effects on the common good. Our long lists of personal rights and privileges would be much shorter if the Court couldn't dig deep into the reasoning and determine how subject legislation fit in with our American concepts of person liberty. They even discovered the Right to Privacy imbedded in the Constitution - for without it we would be unable to exercise our defined rights.

If the Court had examined the copyright issue in this same light, they would have discovered that copyright was granted to the writer as a temporary possession to encourage further creation. It was never intended to stifle creation the way copyright is interpreted today. Instead the Court decided to view the statement of purpose as a non-binding preamble rather than as part of the dictates of the Constitution itself.

And as for the binding statement of the Court, as President Clinton once said: "It depends on what the definition of is is". In this case, it depends on the definition of the word "limited." To most of us - and to the framers of the Constitution as well, limited means within some reasonable limit. To the Court, limited means whatever Congress says it means. While originally copyrights were limited to 14 years, today, for all practical purposes it means "not within your lifetime". Or possibly not within the lifetime of anyone you will ever know either.

Less than 2% of all creative works are still active at the end of the currently defined copyright limit. In the context of the original copyright, it was intended that old manuscripts and copyrightable material should be given to the public domain so that the ideas and expressions that they embody could be used freely by the people.

This very basic principle of copyright has been totally overturned. Nothing is turned over to the public domain anymore. Even worse, previously copyrighted materials are now being withdrawn from the public domain as the protected time period has leapfrogged past material already available.

Working Toward a Solution.

The original offer of copyright was made to engender additional creative works - forming a contract between the creator of the work and the public domain. Extending old copyrights, which are no longer in the control of the creators, does nothing to engender this creativity. The copyright of the original work was long ago sold to some business entity and the bargain struck was based on the conditions in existence at the time the sale.

Clearly, changing the copyright extension after the original creator has severed the connection in no way encourages the creation of additional work and so becomes a different class of copyrighted work. This class of copyright should receive weaker protection than copyright still in possession of its creator.

Also it is clear that work, which has been abandoned by the copyright holder, should be left to the public domain almost immediately. This was the original intent and to do so causes no one any economic damage while delaying may greatly reduce the value of the work to the general public. For example, copyrighted computer programs will outlive the computer architectures for which they were written and on which they run.

Materials which are economically viable 75 years or more after the original copyright has been issued are also clearly an anomaly. In the case of Disney, where the entire industry has been built around a copyrighted character, there may be a good rationale for a longer period. However, such cases are the exception and not the rule. Our laws must also be reasonable for the 99.9% of the cases to which it is applied.

Any solution must take into consideration all of these facts of life as well as the additional fact that Congress, at the behest of lobbyists, has determined that copyrights of economically viable material should not be terminated.

Yes, sad as it may be, I think that we are beaten by Walt Disney, Mickey Mouse and Happy Birthday. We will not win these arguments.

We should now begin a campaign to get Congress to shorten the copyright period so that abandoned copyrights are turned over to the public domain in much shorter periods of time but also allow the extension of economically viable copyrights as long as the copyright holder reaches a certain economic level and wishes to retain the copyright. Such economic level should be based on a formula that takes into consideration the value of the copyright. I suggest dollars or units sold multiplied by years already in effect so that the owner may reap the economic fruits of the work while eventually everything, even the classics, are released to the public domain.

Such a copyright policy should let the greedy continue to hold onto their Mickey Mouse empire while the rest of us finally get to enjoy the bounty of the public domain.

-Murrel Rhodes