Explanation

🀄Figuring my own brain out: When I start writing a thing, especially about something that pisses me off, I expect that my audience might not understand or get it. This is one of those cases.

News today reported that Disney legally threatened a non-profit organization for featuring a massive Lightsaber battle. And I can’t stop there and expect my readers to know how terrible that is. Because that part of my brain that serves as the devil’s reader’s advocate asks:

But Uriel, that’s a big public event infringing on Lucasfilm’s (Disney’s) intellectual property. Doesn’t Disney have a right to defend their trademarks so that no-one thinks Lucasfilm is endorsing or sponsoring this event?

At which point I have to compose a proper response and — this being the important part — not get to the part of the whole situation that I wanted to write about.

Why, yes, dear reader-proxy-voice-in-my-head, Disney has every right. And boy did you open up a big Death-Star sized can of worms.

Get some tea. This will take a while.

Walt Disney himself helped build the great wall that is the array of protections that are afforded copyright holders. See, copyright is a limited-duration monopoly on the ability to produce your content, or content related to your content. But this limited-duration presented some problems when it came to Walt’s imperialist aspirations. He didn’t want either Mickey Mouse or Steamboat Willie to enter the public domain. Ever, and he lobbied to get some laws passed to seal them up good and tight.

Unfortunately, his legal vault was too good, as it applies to all art and content. Many, many works are in the public domain throughout the entire world…but not the United States. She Loves You by the Beatles entered the global public domain in 2014. But not here in the US. In the United States you still have to pay Apple if you want to cover She Loves You in your evening guitar performance.

The problem is no one speaks for the trees people. We like to draw references and inspiration from other works. We’d like to be able to borrow the base track of Hall and Oates’ I can’t go for that for our own funky number. We’d like to write additional adventures of Sherlock Holmes, or Hercule Poirot, or Columbo. But in the US, you’re not going to be able to do so without one rightsholder or another taking an interest in how much money you make. And if your character or plot or guitar riffs are too similar to someone else’s — even if their stuff isn’t published or popular — they’re going to want their cut.

As it is, our representatives have expensive tastes in cigars and ridiculously more expensive tastes in campaigns. And the only way they can make the money they need to get elected is to do what their dark masters campaign contributors tell them to. Generally that means more protectionist laws to secure what makes those contributors their money, and in the case of Hollywood, that means working towards that era of Copyright Utopia when they get ¢20 anytime someone says Spiderman without a license from Marvel – Disney – Apple – General-Foods – Aperture and reading Harry Potter and The Cursed Child is charged per-word per-view. No backtracksies!

Today, a common business model (called a Patent Assertion Entity) sits on intellectual property rights, doing nothing with them except threaten anyone or any company who thinks of the same idea. Many patents are pretty broad, like a cell phone design that’s rectangular with rounded corners, or a transaction of paying money to someone on the internet, or freshening stale bread with heat. Seriously.

PAEs, or more commonly, patent trolls, have directly caused such an epidemic of small business failures that our representatives and even the President have expressed publicly how it’s a bit of problem. Unfortunately, every time someone proposes a bill to help, someone inserts a rider to defund Obamacare and defang the FCC.

Some courts have begun to catch on, too. But PAEs arrange for their cases to be heard in the United States District Court for the Eastern District of Texas, which is infamous for frontier-style justice, mystery-meat tacos and strongly favoring PAE plaintiffs in patent cases. Almost all of our patent cases are resolved there.

Regarding copyright, Hollywood has been running the greatest graft racket ever, forcing artists to sign their rights over to the producing companies. When you’re an aspiring musician your choice is to give the label all the rights, …or keep your insipid music to yourself and get a real job, ya bum. Don’t worry, we’ll take care of you… And they do — if you’re popular enough to make platinum. If you aren’t, expect to live on that advance or get another job, meanwhile all the record sales and public broadcast fees and stuff go to the nice guy in the pinstripes that arranged your contract. That’s Show Biz!

When a my-way-or-the-highway forced signature fails creative mathematics comes in, to demonstrate that your album / movie / book / whatever never made any money. This is how David Prowse was never paid residuals for Return of the Jedi, and why Richard Dryfuss is currently in court with Disney over his conspicuously low earnings from What About Bob? It makes for a pirates and emperors moment when Hollywood complains about unlawful media sharing and suggests that we not steal cars.

All this is to say the United States intellectual property systems might have turned into mechanisms that no longer serve the general public, but instead give a lot of power to the rights-holders. There’s a term for this, Government Failure, which is less obvious and more specific than it sounds.

But I really should try to keep focused on this particular incident.

The legal system is such that you have to have a bit of money to defend yourself in a lawsuit. And if they are willing to put more money into it, you have to put that money into it as well. In the US intellectual property cases, winners don’t get legal fees from losers, so small businesses can (and often do) bankrupt themselves trying to defend against someone else telling them they can’t do their thing because its triangular anthropological commentary science-fantasy-setting military medals are too similar to the plaintiff’s triangular space-action-adventure-setting military medals. (Yes, it really comes down to such trivial details). So when Disney goes after Newmindspace and merely threatens it with legal action, essentially Newmindspace just found itself in a lonely canyon surrounded by rifle-pointing desperadoes and the local self-appointed sheriff asking Newmindspace to drop its pants: It’s going to be a long night.

In the twenty-first century it is common practice for rightsholders not only to defend rigidly against any potential infringement, but also to overreach. For instance, they’ll challenge derivative works that are unique enough to be considered fair use, because fair-use is a bit like, like art and obscenity. A lot of it is in the eye of the jurist.

And the system provides good impetus for rightsholders to overreach: Say Disney does sue Newmindspace but not only prevents them from using the term lightsaber™, but also declares that light sword and laser sword are also too similar and infringe. And let us say that the judge rules in the favor of Disney (which would bankrupt Newmindspace). Unless the ruling judge is careful enough and knowledgeable enough to specify in his opinion that only lightsaber™ is protected by Disney’s trademark, they’ve just inherited light sword and laser sword by precedent.*

See how it works? And how great it is to be a rich media mogul? You own thoughts!

Regarding Star Wars stuff specifically, George Lucas was a pretty nice, regardless of his bad prequel choices. Lucas knows what it is to make amateur films, and was part of the film-school director crowd. As a result, Lucas is (or was) very aware of the importance of fan-involvement and fan-works. They help unskilled artists become a skilled artists. (Many Star Wars developers started out as Star Wars fans.) Fan works help fans connect more with the material (and buy more stuff). And fan works help the franchise milieu evolve by positing questions (so exactly why are Sith Lightsabers always red?) sometimes suggesting really good answers.

Under the gentler rule of George Lucas, Newmindspace has been free to use Lightsaberbattles to describe their illuminated hand-stick grand-melees. Under Disney, the rules are changing, and while Newmindspace might hypothetically be able to mount a defense under common practice, it would require hiring someone better than Lionel Hutz against well, Any of Mr. Burns’ Lawyers which I don’t expect Newmindspace could do.

To be fair, it probably wasn’t anyone in Disney that levied this legal threat against Newmindspace, but the firm that represents them and scans for potential infringement. Companies on retainer often lose their contract if they aren’t active enough, and so they are motivated to invoke legal action even when doing so has larger detrements (e.g. adding to Disney’s already malodorous history of copyright and trademark bullying, including legal threats on schools with infringing murals). Many of our systems, even those with human elements, operate reflexively without the input of a rational or compassionate decisionmaker. Were Disney to be more diplomatic they could probably have sold an event license at a modest (if not nominal) price and earned a lot of fan love for it.

Instead, Disney has confirmed to countless Star Wars enthusiasts that it will not serve as a good custodian of the franchise.

And at this point, I’m too tired to talk about what I wanted to talk about because my brain that others just won’t understand unless I cover every little detail (and then some). And yes, that means that a part of my brain assumes that my readers are idiots. And I know better than them.

This isn’t true, of course. And other parts of my brain think my readers are geniuses who know better than me. The adult in my brain figures that everyone is good with non-technical stuff, shaky on technical stuff (including Intellectual Property law) and that I can generally give them the benefit of the doubt.

Which is good because this is exhausting.

PS: There is a happy ending, which involves cats. And that was what I wanted to talk about. But brain.

* …To put it simply, if I could sell a penknife with a force-field blade to a nobleman, it would be to his interest to force laws that would allow him to use it. Put that baldly, it sounds silly, but it is sound, psychologically. To make strategic sales, at strategic points, would be to create a pro-nucleics faction at court. — Isaac Asimov, Foundation, 1944

…Like two ancient swordsmen, then, the warlock and the deacon dueled together. Their weapons were two endless blades of violet incandescence, but their tactics were those of sabreurs – feint, cut, parry, swift riposte.Fritz Leiber, Gather Darkness, 1943

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