Manufacturing consent and copyright law

The New York Times has a lengthy article entitled “A Supersized Custody Battle Over Marvel Superheroes”, discussing an ongoing legal battle over copyrights regarding character created by Jack Kirby between 1958 and 1963.  It is useful to analyse such reporting, to see how consent is manufactured for policies which benefit the power-elite (read large corporations), and harm the public, in this case the public domain.

First, a brief history lesson which needs repeating, as the vast majority of America has never even heard of the public domain, and has no understanding of how copyright law differs from property law, which differences defines how copyright violation differs from theft.  Copyright is (intended to be) a short term abridgement of human rights, specifically the right to free speech, in an effort to encourage and reward creative works.  They provide the creator of a work with a temporary monopoly on the spread of his or her ideas.   The main players behind the creation of copyright and patent law in the United States were Thomas Jefferson and James Madison, who clearly had mixed feelings on the subject.  The fundamental idea was that through creation of this temporary (state enforced) monopoly, congress could “promote the Progress of Science and useful Arts”.  A useful brief history can be found here.  Once this temporary copyright expired, the intellectual work would return to the public domain.  The original period of copyright length in the U.S. was 14 years, and the author had the right to extend the copyright for an additional 14  (Details of the historical development of copyright law can be found here).  The feeling was that this was an appropriate length of time to allow a creator the opportunity to benefit from his or her creation with an acceptable abridgement of human liberty.  In other words, copyright is a tradeoff between reward for the creator (incentive) and civil liberty, particularly to provide an incentive for publication and distribution.

As costs and times for distribution and publication decrease, the cost function for this tradeoff change, implying that copyright lengths should decrease.  In the last century copyright and publication has become dominated by an oligarchy of powerful corporations, primarily the members of the RIAA and MPAA, with Disney being a major villain.  These corporations have  championed a series of extension to copyright, each time adding a small fixed amount to the existing copyright lengths,  so that copyrights can now be extended to the life of the author + 70 years.  There is no reason to expect that these corporations will allow their increasingly valuable copyright portfolios to expire, so as waves of valuable intellectual property stand to enter the public domain (where they belong), we can expect the armies of lobbyists to swarm Congress’ halls once again.

So what does all this have to do with manufacturing consent?  In the NYT article, the article never mentions the concept of public domain.  It never discusses the fact that Kirby’s creations, now at 50 years of age, should have entered the public domain 32 years ago (under the original terms of copyright law).  There is consideration of the harm done by such copyright litigation which has no redeeming social value.  Jack Kirby, 16 years dead, is not going to be rewarded by this lawsuit, nor will the current process encourage any kind of creative work, beyond creative legal wrangling.  The underlying message of the article seems to be “look, thanks to the efforts of this lawyer and our wonderful copyright system, this guys heirs are gong to be getting a payday!  Isn’t the American copyright system grand?”  Rather than the message we should all be reading, which is “Look, this legal vampire is trying to make a lot of money of this copyright vampire.  The copyright vampire deserves to suffer, since without it’s machinations these works would be in the public domain and contributing to our culture.  But the legal vampire isn’t contributing anything to our culture either, and giving money to Kirby’s heirs isn’t doing anything for anyone either, other than using the legal system as a kind of lottery”.  The real lesson to be learned here is the following:  We need copyright reform.  We need copyrights to be shorter, and we need them to remain in the hands of the creator, not in the hands of some parasitic corporate behemoth.

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