Air Date: 8-19-2026

Today we trace the corporate capture of ideas themselves. What began as a brief legal incentive granting fourteen years of exclusive rights to a creation has become a system that kept a pandemic vaccine from reaching poorer countries and where entertainment conglomerates and technology giants fence off and sell our own culture back to us.

Full Show Notes

Welcome to this episode of the award-winning Best of the Left podcast. 

Today we trace the corporate capture of ideas themselves. What began as a brief legal incentive granting fourteen years of exclusive rights to a creation has become a system that kept a pandemic vaccine from reaching poorer countries and where entertainment conglomerates and technology giants fence off and sell our own culture back to us.

For those looking for a quick overview, the sources providing our Top Takes in about 55 minutes today include

Second Thought

PIRGvideos

Tom Scott

LegalEagle

This Is Hell!

Taylor Lorenz

and Tom Nicholas

Then, in the additional, Deeper Dives half of the show, there'll be more in 4 sections;

Section A, HOW WE GOT HERE

Section B, WHO PROFITS, WHO PAYS

Section C, THE DISNEY PLAYBOOK

And Section D, WHAT DO WE DO ABOUT IT

And now, on to the show.

Insulin is a life-saving drug. It can be the difference between a pretty normal, long life and the constant risk of ketoacidosis, diabetic coma, and premature death for millions of people around the world.

And yet, despite only costing $10 to produce a vial's worth, about one in five Americans with diabetes can't afford treatment and need to ration their insulin. That's because insulin is way too expensive. In the US, it's estimated that insulin prices jump between 15 and 17% every single year. Today, a 10ml vial costs around $300, when it used to be just 20 bucks back in 1996.

In this country, monthly insulin costs regularly exceed $1,000 for those without insurance. So many diabetics in the US have had to resort to incredibly dangerous strategies to get to the end of the month, like not eating, not testing their blood sugar level, or simply not giving their body the amount of insulin it needs.

At the core of this problem, and many others, is the concept of intellectual property. Currently, the different patents to produce insulin are held by three companies in the US: Eli Lilly, Novo Nordisk, and Sanofi. Together, they control about 90% of the insulin market. And through the yearly tradition of patenting minuscule changes to their process and formula, they've made sure that no generic version of the drug can be manufactured by anybody else.

Thanks to intellectual property laws, just three companies have a fully legal cartel, an oligopoly. And all of this despite the formula for synthetic insulin being 100 years old at this point, and the original creators selling the first patent for only a dollar, refusing to rake in massive profits for their invention in the hopes it would be universally accessible someday.

The story is almost identical with COVID vaccines. Just a couple companies own the patents to the most effective ones and have been on a price gouging spree for years at this point. Seeing ahead of time how this would play out, all the way back in October of 2020, India, South Africa, and over 100 other countries went to the World Trade Organization to request that intellectual property restrictions be waived on COVID vaccines, testing, and treatment so that they could actually try to limit the dangers of this already deadly virus.

But the patent owners are powerful, and so is the US, the country where most of these patents are registered. So they made sure they would stay, quote unquote, "protected," notably by hiring over 100 lobbyists to make sure their IP wouldn't be released to anyone. These companies, through the US's leadership, made sure that the WTO would refuse to waive existing restrictions, which it did for over 600 days, dragging out the pandemic for months while infections continued to spread.

When finally these restrictions were waived, not too long ago and millions of preventable deaths later, the WTO's plan didn't even include waiving IP protections for tests or treatments, only vaccines. So like with just about everything, poorer countries are forced to face the consequences of a disease we can mitigate and control without adequate resources, not because we don't have the means to produce them, but because the knowledge required to do so is held for ransom, and the consequences are grim.

According to Oxfam, for every life lost in a rich country, another four people have died in a poorer nation due to COVID. There is no doubt that universal access to COVID-related IP would have made a difference. In their attempt to justify this ghoulish behavior, pharma companies have argued that this is about protecting innovation, that without strong exclusionary IP laws, they'd have no incentive to produce these vaccines, and innovation would just shrivel up.

But they don't even believe this themselves. These same companies now defending IP laws like it's their favorite Minecraft streamer getting canceled on Twitter are the same companies who, right at the start of the pandemic, desperately clamored for IP laws to be dropped in order to develop the vaccines we know today.

This has nothing to do with innovation and everything to do with profit. Like everyone else who defends IP, they're kicking away the ladder, using publicly available knowledge, or in this case, going around existing IP laws to develop something. Then once they're on top, acting like IP laws are sacred natural rights that the state must protect at any cost, including tremendous loss of life.

Climbing the ladder, then kicking it away so no one else can do the same. And who can blame them? This strategy works. The US has been doing the exact same thing for years. To become the industrial powerhouse of the 19th and 20th centuries, the US encouraged and actively engaged in IP theft. Once upon a time, Britain had kickstarted the Industrial Revolution, and in the process, set up laws to make sure its innovations wouldn't get out.

It had used processes and resources it had stolen across the world, and now it was time to kick the ladder. But the US didn't like lagging behind, so some of the country's Founding Fathers made sure that any industrial spy willing to bring over the new technology of water-powered textile mills and those dope mechanical looms everyone was talking about would be legally protected in the US.

So that's what happened. The first industrial machine in the country, this textile mill in Rhode Island, widely considered the birthplace of the American Industrial Revolution, wasn't the product of American genius and innovation, nor of the strength of IP laws, but plain and simple IP theft. Today, though, now that it's at the top of the ladder, it's America's turn to kick.

On the international stage, the US preaches the sanctity of IP laws and has even built an international system of enforcement to go with it. On the rhetorical front, the US will often claim that China steals hundreds of billions of dollars a year from the US through IP theft, an amount that's calculated by assuming every counterfeit good sold for cheap is equivalent to losing a sale of the expensive original version, which obviously it's not.

Most people buy things when they're cheap, meaning any IP theft calculation is almost guaranteed to be inflated. Regardless, the US is basically complaining about China doing the same thing it did all those years ago when it was in the same position, developing in the shadow of a wealthier hegemon.

Alongside this more symbolic pressure, though, the US and the rest of the imperial core have also set up TRIPS, the Agreement on Trade Related Aspects of Intellectual Property Rights. TRIPS is an international pact signed by just about every country in the world to police the kind of IP theft that the US so handsomely profited from earlier in its development.

While the World Trade Organization tries to portray TRIPS as a benevolent global enforcement system, all it actually does is grant powerful countries legal protections over their IP monopolies while keeping poorer countries down. That's because rich countries are almost always sellers of IP, thanks to centuries of exploitation of the Global South, and poor countries are almost always buyers.

A system like TRIPS that enforces the same IP protections for everyone, regardless of how much intellectual property they're actually able to produce, therefore effectively locks poor countries into total dependence on Western IP since the funds that would otherwise go towards developing new technologies and expanding on the innovations that start out in the West are instead spent buying basic IP from the only legal sellers.

As if all this wasn't bad enough, there's a possibility that IP laws may become even more important in coming years. Studies have shown that copyright-intensive industries, like motion pictures, publishing, and software, are seeing their profit margins grow over time, whereas more material-driven industries, like construction, transportation, and mining, are on the decline.

It is increasingly safe to profit with IP and risky to go down the traditional path. Market rules being what they are, investors will follow the money. 

Big drug companies abuse the US patent system in order to keep lower cost generic drugs from ever making it to our pharmacy shelves.

Patents prevent other companies from selling generic versions of the drug. 

Generic drugs are drugs that can be produced by more than one company, and when you have a product produced by more than one company, you have competition, and competition brings down prices. That's economics, that's evidence, and that's common sense.

Drug price spending will increase by 63% in the next decade. These rising prices are causing a lot of stress for American families. One in four cannot afford their prescription drugs. 

as a clinician, it's ... Sometimes we don't ... We're not even aware when a patient's not taking a drug. They may not want

be willing to admit that this costs too much, and we find out later their condition is not well controlled, and find that cost was a big barrier for them 

When one generic drug enters the market for a particular medicine, prices drop 40%. And when lots of generics are available for that drug, prices can come down 80% or more.

There are three powerful, weapons that drug companies have for extending their monopolies and ability to charge monopoly prices. those are, creating patent thickets, paying to delay generic entry, and hopping from one drug product to another. Turning to the first, patent thickets, pharmaceutical companies create patent thickets by getting lots and lots of patents.

There are so many patents that another company can't really set foot in that space, and when there's only one company that can make a product, they can charge as much as they want for it. 

Humira's a great example of this thicket of patents. Humira treats many types of conditions. rheumatoid arthritis, ankylosing spondylitis, Crohn's disease.

If we exclude the vaccines that we've had for COVID, Humira is the most profitable drug ever. The first patents that relate to the product were filed around 1996, which meant, technically, the patent should have expired. You get 20 years for a patent. Should have expired in 2016. But it didn't. Once the drug was approved in 2002 by the FDA, they went on a patent spree.

Some 311, 12 patent applications, of which, to our counts, 165 had been granted. And so come 2016, when we think we should be getting competition, we don't. What's even more significant is AbbVie has made over $100 billion post that main patent in 2016 expiring, and they also increased the price. In, the end of 2002, the drug was priced at $523.

In 2016, the drug price was $1,870. By the time, competitors are gonna enter, the price of the drug is $3,167. And this is not just an AbbVie problem. This is a pharmaceutical industry problem. 

In other games, drug companies engage in what's called pay for delay. A brand drug company pays a generic something of value.

In exchange, the generic agrees to stay off the market. Everybody benefits except for the consumer. 

Here's an example. The drug company Endo had a patent on Lidoderm, a medicated patch to treat shingles. When another drug company attempted to enter the market with a generic version, Endo wanted to protect its monopoly pricing.

The two companies made a pay for delay deal in which the competitor agreed to delay selling its generic drug in exchange for compensation valued at about $250 million. Both companies made money, but patients lost out. 

Product hopping is a strategy that prevents patients from getting generic drugs that are much, much cheaper when they become available.

So you might have been prescribed a, a drug that was patented and produced only by one brand for years. That patent is about to expire, which means y- the cost of the treatment could go down by thousands of dollars. Your co-pay could go down from $100 to $2, be enormous price difference. You go to the pharmacy with the same prescription you've been taking, and once the generic product is available, the law allows the pharmacy to automatically replace it with what will cost you less money.

To prevent that from happening- 

Drug companies make minor modifications of their existing drugs. For example, producing a 20 milligram pill instead of a 40 milligram pill. But companies then introduce this as an entirely new product, pushing doctors to prescribe the new product, maybe even removing the old one from the market altogether.

Now, there's no market for the old drug, and the generic can't enter the new market because it's protected by a patent 

34 million Americans know somebody who can't fill a prescription or have died. That, to me, showed me there's a significant problem, and, it's affecting all of us. 

Our insurance companies are having to pay extremely high prices.

They can't encourage us to use a generic drug because there is none. Those costs are then passed on to all insured people in the US. We have a lot of government programs that are paying for these drugs as well. Medicare and Medicaid are paid for by our tax dollars. So every time a drug price goes up, that means either our own pockets are affected or our tax dollars are affected.

If a patient, is looking for a cheaper version of a drug and it's available, I have very little reservation on doing so. I think that's in their best interest. It's in the best interest of our healthcare system. 

To change the patent system so that it serves everybody, we need to make sure that more voices, more people who depend on patented technology, are part of policy making too.

as I record this, Pixsy doesn't appear to have automated systems hunting through YouTube videos to find unlicensed images and send out legal threats, but they could pretty easily. Maybe those claims could be defended in court with enough money, but in the current system, most people would be forced to fold and pay a license fee and give up.

And viral video licensing companies like Jukin Media do already search through YouTube for unlicensed use of the video clips they own. And while as a company they are vilified by the creator community, they've, they've got a point. Creators have the right to determine how their work is being used, and taking someone else's copyrighted photos or videos and using them commercially without permission, without criticism is not fair use under the law, even if loads of other people have already used them, even if you add some words on top of them, even if you mash them up with three other things.

Are you 100% sure that you are transforming or criticizing the original, not just using it? Are you 100% sure that a court would agree with you? And just to repeat, I'm not saying this is how it should be. I'm saying this is how it is. But that's pictures and videos. What about bits of pop culture? At the end of 2019, Giphy, a GIF aggregation site, briefly removed it...

Actually, hold on. People will complain. I'm pronouncing it GIF because Giphy the site I'm talking about pronounces it GIF. And besides, the real problem is that they're not actually GIFs. They're short video files in other formats. GIF is a really specific descriptor for a data format. Short-looping videos are not GIFs, but apparently now they are.

It's like how emoji now refers to any small image. I'm still grumpy about all of this. Don't at me. Anyway, at the end of 2019, Giphy briefly removed its many GIFs of the child from The Mandalorian, a creature designed to be so adorable that I can only assume the design came directly from Disney's merchandising team.

Those GIFs were removed because of what Giphy described as confusion about certain content. I guess they got a legal letter from someone at Disney before Disney realized what a PR disaster it would be to stop the internet having immediate access to Baby Yoda. But the Guardian article about that brief takedown has a really interesting final line.

"Images in GIFs are widely understood to fall under the fair use exception." Notice how that's phrased, widely understood. There has never been a court case about this. Are GIFs fair use? I actually think that if some company got a bee in their bonnet the same way they did about Napster 20 years ago, and if they insisted on litigating all the way to court, it is entirely possible that a judge would go, "No.

GIFs aren't a parody. They're not criticism. They're not transformative. They're not fair use." GIPHY's entire product, the GIF economy, is based on systematic copyright infringement. Pay the money, shut it down. In practice, of course, it wouldn't get that far. GIPHY would accept a cease and desist and take down what was complained about.

It's just easier. Because remember, they're not an individual creator or a small site. GIPHY has an enormous office in New York with catered lunches and arcade games for more than 100 employees based on a business model that is arguably copyright infringement. I am amazed that no big media corporations have looked at their money and gone, "We can sue them for that."

In the same way, uploading video game footage to YouTube is widely understood to be okay, but that's questionable. Maybe if it's something like Minecraft where there's a lot of original work, it could be. And besides, the license agreement that you accept when playing Minecraft allows streaming and most YouTube videos.

But if it's just a video of cut scenes or following roughly the same sequence of events that every player would follow, it's a bit like putting up a video of you watching a TV show. We've seen companies decide in the past that actually they don't want videos of their games online. It is very easy to make the argument that online streaming of games affects sales, and the impact on sales is a key component in determining whether something is fair use.

Sure, the games get some exposure, but exposure doesn't pay the rent. I didn't buy Untitled Goose Game and experience the beautiful artwork and immaculately timed comic set pieces myself. I skipped through a couple of videos so I could get the jokes, and then I moved on. I didn't buy Superliminal either.

I just watched a video of someone playing it to get how it works, skipped forward to see how it ends, and then I got on with my life, and I'm glad I did. The game mechanics are clever. But the ending is unsatisfying, or maybe I just think that because I watched someone else play it, and that someone else who provided a substitute for the original product made money off that, either from advertising or streaming donations.

Now, video game streaming might be fair use if you've got someone constantly criticizing and reviewing the work as they play it, not just talking about it or, not just, repeating what they're saying in the game or saying hi to the chat, like actively criticizing. Maybe. It would be up to a judge to decide, and no one wants any case like that to get to court because somehow we have an entire industry based around something that is very possibly copyright infringement, but which most video game publishers are just going along with.

Perhaps because they genuinely think it's a good thing, or perhaps because they've seen the backlash that happens when horrible gamer children are suddenly denied something they think is their right, like our friend in the corner. 

Hey. Hey, this is transformative. This is definitely fair 

use. 

Would you do this to a Marvel movie though?

No, mate. They'd sue me for every penny I've got 

In the not too distant future, next Sunday AD. In 

1988, KTMA-TV in Minneapolis aired the first episode of Mystery Science Theater 3000, which was basically a reaction channel. A host, along with a cast of puppet robots, would watch a full-length movie, usually an old science fiction piece.

They'd be in silhouette as if they were in the row of cinema seats in front of you, constantly cracking jokes about whatever was on screen. It's tightly written, scripted with joke after joke, although the skits that surround the movie are often so laden with in-jokes and character shtick that new viewers who don't know the show and the cast can be completely lost.

Like I said, it's basically a reaction channel. Time Magazine listed Mystery Science Theater as one of the hundred greatest TV shows of all time. A Kickstarter brought it back in twenty sixteen, and then Netflix brought it back for another couple of seasons. Mystery Science Theater was absolutely criticism and review and absolutely transformative, but they still licensed the movies.

Anything that wasn't in the public domain, they negotiated and paid for because, yeah, playing out someone else's entire movie just with wisecracks over it Probably not fair use. And even if it was, a studio would've probably sued them at some point anyway, and they'd have had to defend the case and spend the money to defend the case.

Now, there have been YouTube commentary channels who have defended lawsuits where fair use and fair dealing seem clear. h3h3, an often controversial reaction and commentary channel, won a very expensive lawsuit that was brought by someone they criticized. They were very happy about the result, and they shared that with their fans in a way that pretty much sums up why their style isn't for everyone.

Good job, Hila. Good job.

The court even noted that the video was transformative because it responds to and transforms the video from a skit into fodder for caustic moment-by-moment commentary and mockery. The judge's decision goes into the balancing factors of fair use in depth, but the most important bit is a little bit further down.

"Some reaction videos intersperse short segments of another's work with criticism and commentary, while others are more akin to a group viewing session without commentary. Accordingly, the court is not ruling here that all reaction videos constitute fair use." It's clear that just playing a video and laughing at it isn't fair use.

It's copyright infringement. The border of fair use is somewhere in the gray area between lazy, zero-effort reaction streamers and in-depth, insightful criticism. But it's a fuzzy border, and right now, questions about it can only be settled on a case-by-case basis in an expensive courtroom. Because yeah, there is one thread throughout all these examples.

Under the current system, it often doesn't matter who's actually in the right. Even if the answer to is it fair use is clear, it's actually about whether you can afford to defend a case. You could be 100% sure it's fair use, but unless you're prepared to spend the time and the money to actually fight that in court, it doesn't matter.

In the US, the Copyright Act grants creators a number of exclusive legal rights over their original works of authorship, including literary, dramatic, musical, artistic, and other intellectual works. The law protects the owner of the work if other parties copy, present, or display the work without the owner's permission.

So if the copyright work is an animated film like Disney's Alice in Wonderland, copyright law protects the film in its entirety as well as its titles, characters, music, and merchandise. So that means that if you sell a T-shirt with the image of Alice or paint it on a mural outside your daycare, you're going to get sued by Disney because they own the copyright for Alice in Wonderland.

Yes, it really is a litigious world after all.

The idea, and it's totally debatable, is that if you give authors a monopoly over the works that they create, they will be incentivized to create more. If they didn't have protection, they would be disinclined from creating that kind of art. But there is a catch. Copyright owners don't have control over their work forever.

All copyrights eventually expire, which means the creative works are then owned by the public. The term the public domain refers to creative materials that are not protected by intellectual property laws. Anyone can use a public domain work without requesting permission from the original author or the company that owned the work.

And when a work is in the public domain, you don't even have to change it into something new, into a derivative work. You can use it and even sell it in its original form. Though at the same time, you should know that something being public and being in the public domain are very different things.

Just because something is public, the fact that you can Google something, on the internet, does not mean that thing is in the public domain. In fact, it's probably not in the public domain. Usually, it takes a lot of time for the copyright to expire for something to no longer have a copyright and to finally enter the public domain.

And there are four ways that creative works usually arrive in the public domain. The copyright expires, the copyright owner fails to follow copyright renewal formalities, the copyright owner donates the material to the public, or copyright law doesn't protect a certain type of work, like facts, basic math, or recipes.

Now, since most reasonable people agree that artists should be paid for their work, why doesn't copyright last forever? the idea behind public domain is that it fosters innovation, creativity, and knowledge. It encourages artists to draw on previous works of art to create something new. It makes it easier for publishers to publish lower cost editions of important books, it makes it easier for teachers to distribute educational materials, and it helps artists build on the art that existed before.

Obviously, Walt Disney himself made excellent use of the public domain by taking popular fairy tales such as Cinderella and classics like Alice in Wonderland, and turning them into beloved movies, because those were in the public domain at the time. In fact, even Steamboat Willie made use of the public domain.

The film used the song Turkey in the Straw, which was in the public domain at the time of production. And the title Steamboat Willie was a reference to Steamboat Bill Jr., a Buster Keaton movie that was released that same year. Heck, that reference might be one of the first uses of fair use parody, in an animated movie.

So Disney designed his movies to appeal to audiences who were already familiar with a popular work. Now, Steamboat Willie was unveiled as a Walt Disney Animation Studios short on November 18th, 1928. When it was released, the US copyright law protected copyrights for 56 years. But by the time the copyright on Steamboat Willie was due to expire in 1984, Disney had become the biggest entertainment company in the world, and Mickey was one of the most recognizable characters on Earth.

So Disney, as well as other companies, lobbied Congress to extend the copyright term. The result was the Copyright Act of 1976, which increased the renewal term for works, copyrighted before 1978 that had not already entered the public domain from 28 years to 47 years, giving a total term of 75 years.

Disney delayed Mickey's entry into the public domain yet again in 1998. Disney, again with other companies, lobbied so hard for the 1998 amendments to the law that it's sometimes called the Mickey Mouse Protection Act, although the guy that wrote it- Also had something to gain from it as well. The law is officially known as the Sonny Bono Copyright Term Extension Act, and it extended the copyright protection from 47 to 67 years, giving copyright holders 19 more years.

that's Sonny Bono of Sonny & Cher, who actually went on to become a congressman. So that meant the copyright for Steamboat Willie was set to expire on January 1st, 2024. Now, for further discussion of the expansion of the various copyright acts, check out Jake's video over at Corridor Crew. He is also a lawyer, and, does a great job of breaking down how the various acts were extended.

But this time around, to the surprise of many, Congress did not extend the Copyright Act, further delaying, Steamboat Willie and Mickey Mouse's entry into the public domain. But if you thought Disney was just going to sit on his hands, you don't know the Disney Corporation. instead, the company took another path, and instead it's now relying on trademark law.

While copyright law protects artistic works that are laid down in some sort of tangible medium, trademark law protects a word, phrase, symbol, or design that's used by an entity to identify its product or service. The idea is a trademark is for the good of a consumer to know where goods or services come from.

They see a trademark or a service mark, and they can identify who is providing that service or good. In anticipating that they might lose its copyright in Mickey Mouse, Disney incorporated this image of Mickey at the wheel of the steamship into its logo. It now runs before every animated feature. The company filed a trademark application in 2022 describing the mark as, quote, "A motion mark of an animator's drawings visually flipping one after another and transitioning into an animated clip of a mouse character tapping his foot and whistling while holding a ship's wheel, followed by the appearance of the wording Walt Disney Animation Studios underneath the animated mouse character."

Now, this might be a smart move because trademarks do not expire as long as you're actually using them in commerce. There are trade-offs in all IP. Copyright is automatic. As soon as you create the art, effectively you have a copyright, whether you register it or not. trademarks require you to actually use them in service.

you can't register a trademark and then never use it. That won't protect anything. So here's where I think we are. Steamboat Willie, the animated short, is in the public domain for sure. You can use that, animated short and display it, as a video

But Steamboat Willie/the original version of Mickey Mouse, might be a trademark itself, and it might be also a copyrightable character. You probably can't use the public domain version of Mickey in a way that makes consumers think that the work is produced by or sponsored by Disney. the reason Disney started incorporating Steamboat Mickey into its animated features was to create an association between that version of the character and the modern Disney audience.

And it's an open question whether you can even make a work of art featuring the Steamboat Willie version of Mickey Mouse that doesn't make you visualize the popular Disney character as it exists today. Believe me, this is going to make a fascinating test case for some poor, unfortunate soul. But that's just the tip of the legal iceberg.

Now, nobody really knows how this is gonna play out in court. A lot will depend on whether Disney becomes a trademark hawk or decides to just let it go. In theory, people can use the original image of Steamboat Willie, and Etsy today is filled with products like this retro Disney T-shirt or this cutting board.

However, if any of this threatens to dilute the trademark, Disney could use trademark law to crack down. And as you can see, the earliest iteration of Mickey had solid black eyes and skinny arms and legs, and he didn't wear gloves or even speak. He had a longer tail and nose, and he was more of a trickster than the wholesome piece of intellectual property that we know today.

All the newer versions of Mickey, including the ones that you're most familiar with, which show Mickey wearing red shorts and white gloves, will still be protected by existing copyrights Or will they? What if someone argued that all of the versions of Mickey Mouse that Disney thinks are protected by copyright law are actually just derivative of that first original Steamboat Mickey, and therefore you can make a movie using the character traits that appear in the later Mickey appearances?

What would the courts think? the answer lies in the way that courts apply the originality requirement of derivative works. In the United States, an alteration to an original work is called a derivative work, and only the copyright owner has the right to make or authorize an adaptation of an original.

What does it reveal to you about Disney when it embraces AI which infringes on copyrights but demands IP enforcement which does the same? 

Yes. I think AI has, really been a great example, a really material example for this book. unfortunately, the AI boom really happened after the manuscript was put to bed, so I don't get into it much.

Disney is one of the most, you know, famously and infamously aggressive legal, corporations in the world.

Of all of the, of all of the... A sl- a slight side note here. When you are, when you're a publicly traded company, you have to announce, as part of your public filing, as the SEC, you have to announce your top five paid positions at your corporation and what their salaries are, right? That's just part of the reporting requirements.

Disney is one of the only companies in the Fortune 500 who has their lawyer in that top five, right? Jesus. Disney is a law firm, in many ways. that's one of the core things it does. So anyway, all that said, Disney could-- honestly, it's a slam dunk over these AI corporations. If they wanted to, they could sue them into oblivion, The value of the things they are openly in The New York Times saying they're stealing, right? billions of dollars. it's a no-brainer, right? If they wanted to, Disney, could put, could end the AI boom now with massive lawsuits, right? or at least, slow it down significantly.

but they don't. Instead, they sue, people who make, who make g- copies of their movies on the internet or whatever, or people who, YouTubers who, are too critical and reproduce videos from, from Disney theme parks, right? I think that's a really good, that's a really good way of understanding how IP works, right?

Because it's about giving management power over workers, and it's about giving corporations power over their images. And anything that is in line with giving power over those images, will be, will not-- they will not go after it because obviously because IP is selective, because they get to bring a lawsuit, right?

Because they get to choose when to attack and when not to. They get to decide where their protection begins and where it ends, right? and they claim that the coronavirus vaccine being shared with the Third World, legally, they claim this, is a, is a fundamental threat to their business and their copyrights, right?

but they think that AI is gonna be great because AI is gonna allow them to drive down wages and is gonna allow them to produce more, or at least they think so for now, produce more, produce things faster. or, I think the way that they really worked. So during, when I was writing the book, the WGA, the strike was ongoing, and the, the actor strike was ongoing.

And I talked to a lot of writers. the strike gave them more time to talk to me, which was, which was cool. And they were angry, which was good. They, they were really thoughtful on this stuff. But, one of the writers said, the real threat from AI isn't that they're gonna write a script fully with AI.

that's gonna be bad. We all know that, right? The threat is that the, the executive Will create an AI script, then will hire writers only as editors, right? So they won't get the writing credit. They won't get the-- They'll just come on as script consultants. They'll get paid way less, and the executive can get the writing credit, right?

Even though fundamentally they wrote the movie, they had to rewrite the AI gibberish slop that they were given, right? But, the way that, the, the system is structured doesn't take that in, didn't take that into account. so it was this way that they could, just basically push other creatives out of the way, right?

Executives love AI because it allows them to feel like they made the thing. And to... And feeling like they made the thing combined with IP structures means that they can make much more money from it as well, and that they can cut wages on everyone else, even if those people end up having to do the actual work anyway, which is what they would do.

so there has been one-- Since the book launched, there has been one lawsuit, made on copyright infringement grounds by one of the big entertainment, industry things, and it was by Disney. And it was against one of their competitors. It was a competitor, a competitive AI model that they didn't like.

They sued them, right? But the AI they used, they didn't sue them, So I think that's all you really need to know. 

One last question for you, and as always, it's the question from hell, the question we hate to ask, you may hate to answer. Our audience is going to hate your response. So are we being entertained to death? Does IP lead us to being entertained to death?

Is IP an existential threat to humanity? 

Yes, absolutely and unequivocally. the, IP has driven, the creation of, the b- the greatest biolog- biology and food scientists in the world have created corn crops that can't reproduce, so you have to buy their crops every year from the company. so we have produced, IP has allowed us finally to produce food that cannot reproduce itself and that requires corporate intervention. IP has, produced, a world where, we-- some diseases like glob- diseases that affect the Global South get no treatment and no care 'cause there's no money for them, while, while hair loss is one of the most well-medicated conditions in the world.

we are being IP'd to death. entertainment is a huge part of it. Disney has been a huge part of that. And, if we can't overthrow the regime of IP, then I do fear desperately for where this world is headed. 

The shame of all this is that we could have built the Library of Alexandria, but it has been kept locked up by old laws, bad laws- preexisting business structures that we haven't been able to overcome yet. I don't have any reason to believe that they're focusing on rare books, let alone focusing on destroying them, right?

In many cases, there will be lots of other copies of these books, or there might be ones in libraries or digitized elsewhere. I can't say that for everything, but I've, I have not seen any evidence that suggests that's what they're doing, let alone, as you said, intend to do it. 

So Anthropic is not the first tech company to scan massive amounts of books and destroy them.

Decades ago, there was this effort called the Google Books Project, and I feel like this was one of the first efforts to really digitize books, and the precedents that were set around it ended up having a really big impact on how companies today can treat different books and interact with, the publishing industry.

What did it aim to do, and how did it ultimately play out? 

So the Google Books project was started, over 20 years ago now. The idea was digitize books And make them searchable like the web was searchable. So Google started digitizing books, and you could search through them. It would show, short snippets from book, not a full page, not paragraphs, et cetera, et cetera, and places to go, buy the book or get it from your library if you could.

They got those books in two ways. One was they worked with publishers and rights holders to acquire them, and in those cases, the publishers or the wr- the rights holders would say, "Actually, you can show full pages from the book in some cases." And so you could have the experience of flipping through the book in the bookstore.

The other way, which addressed the vast majority of books in the Google Books database, was partnerships with libraries. So they went to libraries, University of Michigan, Harvard, Stanford, et cetera, et cetera, and set up these partnerships where they received books from the libraries, from those university libraries.

They digitized the book for Google's use, and then they provided the physical book and the digital copy back to the library. So the books were not destroyed in that case. So it was different in that sense. Google Books is not a product today that most people have heard about or thought about, and it is core to what Google is doing in AI, right?

They have digitized over forty million books. No one has anywhere close to that many books. To the extent books are really important in the capabilities of these models, that's a huge advantage, and that's something that has been really big for Google even if that initial product didn't work out. So I think what Anthropic was trying to do is figure out, how do I compete?

I have to go buy books of my own. And they have... they are a lot of the same people who started the Google Books project, and thus I expect to be quite diligent in terms of how they think about what they're buying and h- you know, what they're preserving and whatnot. But they're trying to catch up and get to a point where they can compete.

Every dollar of your support makes such a difference. I think it's important to note that, Google is not destroying them, in a way, and I think that's what's, making people so upset. It is this horrible visual to see a book you know, and have its s- spine sliced off. there's something sad and tragic about it, and I think that's what people are so angry about, is, it'd be one thing if they were scanning all these books.

I'm sure some people would take issue, as they took issue with Google. But it's the, method in which they're destroying them that seems unnecessary. So why is it that Anthropic can't simply do what Google did with Google Books? 

So there are two reasons here. One is sort of efficiency cost.

The other is legal. There are lots of different commercial activities, commercial efforts to scan books for various reasons, including for, disability uses and other accessibility uses. In those cases, taking the scan where you slice it off and you just feed the pages in is way cheaper and more efficient.

And if you have a student who is Print disabled, is blind, and needs a chemistry book in a week. You just wanna digitize it quickly. And that's not quite the Anthropic situation. There are certainly, libraries that will do... might slice off the binding, feed them through, and then they may rebind it at some point.

But in many cases, I think ultimately those s- slips of paper just actually sit in rubber bands in a basement. They're not always rebound. I'm not saying that, that's a sort of excuse one way or the... Just to set the facts. The real key then is the law. So Anthropic, like many AI developers, has been sued for copyright infringement, including for their use of books.

Again, there were two sources of books that Anthropic had. One was they downloaded s- some books off the internet. There's these different databases, Books3, LibGen, that contain books that were digitized by somebody else. They don't necessarily know the provenance of them, and they use them. And the judge in the Anthropic case had serious reservations about the way they went about doing that.

And I'd say, it depends on how you read it, but, at the very least, that they had these and they didn't secure these files was bad. So the other way, and this is the way where the judge said, "This is okay," they went to bookstores, they bought books, and they made a one-for-one replacement. So they had an analog copy, they digitized it, and at the end they had one digital copy, not one digital, one analog.

And that one-for-one replacement is what the judge said was okay. And given the extraordinary damages in copyright, remember, Anthropic settled the case for $1.5 billion, and there are other plaintiffs still out there. It is totally logical to say, "We're not gonna take that risk." Basically, the law, copyright law, has put them in a bind.

For them to use books, they are incentivized strongly to do this. 

because if they don't destroy the book, the legal liability is so insanely large, especially for so many books, that they effectively have to destroy the book. 

Yes. In copyright, statutory damages can be up to $150,000 per work. So if you're digitizing millions of works, it's guess wrong, go out of business.

It's not just, a slap on the wrist. 

So I'm wondering, what is the judge's thinking in that? Is it just "Hey, we're making a one-for-one replacement. If you have a duplicate, then you have this duplicate out there in the market that's gonna affect the market somehow"? what is the, kind of the framework that he used to make this determination?

Obviously, we can't get inside his mind, but what do you think? 

I think it's about, then you would have two instead of one. There'd be a substitution if somebody's still reading that physical copy, and so on and so forth. Remember, all of this is happening within the Bounds of copyright law.

Copyright says you made a copy, that could be infringement. Okay, fair use, we gotta go through this four-factor test. Impact on the market for that book is one of them. Was it a transformative use? if there's still a copy, was it? How transformative was it? Et cetera. So given that's what the judge said they could do, I totally understand why Anthropic would not wanna take the risk of coming up with some other ways of doing it.

because any other kind of novel way that they tried to do this and tried to save these books could open them up to such liability, and it's sort of untested waters here. Not to be so sympathetic with, this big company, but to me that makes a lot of sense, and I feel like this is why... I saw people tweeting, "If you're mad about it, what's happening at Anthropic, you should be just as mad at, Disney and some of these other companies that really fought for the copyright system that we have today."

So a couple things to know about copyright. I talked about one already. Damages can be huge, right? It's not just actual damages, these huge statutory damages. If you're working with millions and millions of works, that's huge. The other thing is that copyright applies when you commit a thing into a material object, right?

You scribble something on a napkin, on a piece of paper, that is copyrighted as soon as you did it. So everything under the sun is roughly copyrighted. And so then if you think about, books, again, m- most books that have ever been created are not in print, are not in commerce. Maybe you could buy them out, as an out-of-print or an out-of-commerce bookstore, right?

You generally can't find and identify and contact and license from the rights holder, 'cause they're gone. it's true for a l- lots of books, but I'd say particularly in the 20th century. If we want to be able to preserve and use books in the 20th century, get a license is not an answer.

When it comes to copyright, there is no, registry or database or phone book of finding rights holders. A lot of time authors and publishers may disagree on who own the rights, but even if you know this is the rights holder, finding them, contacting them is simply not feasible. And this has been s- this is not just a back of the envelope, this is something the copyright office has reviewed time and time again.

It came up in the Google book search litigation. The authors and publishers themselves firmly agreed with this, that licensing is just not a solution for the vast majority of all books that have ever been published. 

I think it's useful here then to take a step back and to consider the concept of property more broadly. In particular, I think it's useful to compare and contrast the emergence of notions of property as it pertains to ideas and creativity with the development of the same around tangible physical things.

The side benefit of doing so is that it might encourage us to take a slightly more critical view of physical property. Yet what I'm primarily interested in is exploring the extent to which our concept of intellectual property borrows from our concept of physical property and how using the same set of ideas for both might not entirely make sense.

In switching our focus briefly to tangible physical forms of property, it's useful to distinguish between a few different forms of property as they exist in the present day: personal property, private property, and communal property. Let's begin with the first two. Now, in our everyday usage, we might be used to using the terms personal property and private property fairly interchangeably.

In most broadly Marxist and anarchist schools of thought, however, these terms have distinct meanings. As Bhaskar Sunkara explains, the phrase personal property refers to things meant for private consumption. The various bits of stationery on my desk, for example, the food in your kitchen, and most consumer goods such as TVs or sound systems would be in almost all cases personal property.

Your reason for owning them is solely so that you can personally use them. Private property, by contrast, refers to things that give the people who own them power over those who don't. Sinkara continues that the power created by private property is expressed most clearly in the labor market, where business owners get to decide who deserves a job and who doesn't.

To give a further example, we might consider a house that is owned by a landlord purely for the purpose of renting it out. In that scenario, the house gives the landlord a considerable amount of power over the person who lives in it. They can impose restrictions on what they can do in the house or periodically increase the rent.

Whether or not something is private or personal property is thus predicated on whether or not it engenders a social, economic, or other power relationship between the person or people who own it and those who don't. Indeed, many things can be either personal or private property depending on circumstance.

Your personal computer on which you play video games or surf the web, for example, is clearly personal property. If that very same computer was given to you by your employer for you to complete your work on, however, it would be private property because your continued right to use it is contingent on you remaining employed in that job.

Indeed, often employers will actively prohibit employees from using such company-owned devices for anything other than work. And if it's these relationships that define whether a piece of property is personal or private, then it stands to reason that intellectual property can never be personal. The exclusive rights that are bestowed upon the creator of an artistic work, whether that creator is an individual or a company, create a power relation between the creator and anyone else who might want to make use of that copyrighted work.

Let's leave aside personal property then and instead focus on our final form of property, communal property. Communal property refers to anything that is owned in common by multiple people and thus which more than one person has a right to use. A few examples of truly communal property exist in the present day.

Much of the time, we might experience streets and pavements as though they were communal property, administered by the state, yet which we all have a right to use. Nevertheless, anyone who's ever found themselves at a demonstration or protest will quickly have discovered the limits of those rights.

Yet examples of communal property have existed throughout history. We find reference to one such form of communal property in volume one of Capital, in which Marx explains that, "In England, serfdom had practically disappeared in the last part of the 14th century. The immense majority of the population consisted then, and to a still larger extent in the 15th century, of free peasant proprietors.

They enjoyed the right to exploit the common land which gave pasture to their cattle and furnished them with timber, firewood, turf, et cetera." This common land usually consisted of a village green or similar space which most people living within that particular village would have the right to use. Over the course of a number of centuries, however, a process known as enclosure served to fence off and parcel up this communal property and turn it into private land.

The result of this was that it was no longer possible to raise one's own cattle, say, for milk, beef, or clothing, or that if one did want to do so, one would have to pay rent to a landowner in order to do Thus, property which previously engendered little in the way of a power relationship came to do so, enriching some while disenfranchising others.

The analogy of land and of enclosure is useful here, for the emergence of the concept of intellectual property in many ways mirrors that of private property in the form of land. See, the notion that artistic works might be considered private property is a relatively recent phenomenon. The first law resembling what we now call copyright came about with the passing of the Statute of Anne in England in 1710.

Primarily centered on literary works, it granted the author of a novel or other literary text exclusive rights over that work for a duration of 14 years. A number of economic and historical trends intersected to bring about such a law. The development of the printing press, for one, meant that it was easier to distribute certain forms of artistic works and thus owning the r- exclusive right to do so became highly profitable.

Perhaps more interesting for our discussion here, however, is the manner in which an artistic movement known as Romanticism had altered people's perception of the act of artistic creation. It is during this period, suggests Isaiah Berlin, that we see the emergence of a passionate belief in spiritual freedom, individual creativity.

The painter, the poet, the composer do not hold up a mirror to nature, however ideal, but invent. They do not imitate the doctrine of mimesis, but create not merely the means but the goals that they pursue. These goals represent the self-expression of the artist's own unique inner vision. Such a perception of the literary or artistic work as the sole creation of an individual author struck by divine inspiration to create something from nothing may often seem as though it's been around forever.

In truth, however, as Berlin suggests, the exceptional individual artist who pulls their creations from thin air is, as Roland Barthes had it, a modern figure. Certainly, writers, composers, and other artists have always been celebrated for finding novel ways to articulate or present a certain narrative or set of musical ideas, say.

But prior to only a few hundred years ago, they were more likely to be viewed as grazing on an intellectual or cultural common. The narratives, musical phrases, and other creators' ideas which already existed were seen as nourishing their creations. And in return, that which they created were free to nourish the work of future artists.

For a great deal of history then, art, literature, music, and many more forms of culture were deemed communal property, not private. Whole videos could be filled listing examples of celebrated artists who lived prior to the advent of copyright law who borrowed extensively and consistently from the work of others and who, in return, were borrowed from.

As James Boyle and Jennifer Jenkins stress in Theft! A History of Music, Beethoven, Brahms, and Bach all extensively rearranged and reworked the work of their contemporaries and, in turn, had their own compositions reworked by others. Shakespeare, too, would be considered today a career burglar, with many of his greatest plays drawing their narratives directly from preexisting works.

As John Kerrigan writes in his book Shakespeare's Originality, "Shakespeare does new things with and adds extensively to what he draws from preexisting texts, but his originality is partly original-ity." A drawing upon originals. Recognizing the rich history of what would today be considered intellectual property theft thus perhaps allows us to reconsider contemporary copyright law.

For it allows us to see that the present system is not a given, but instead is the result of a gradual enclosure of the cultural commons in which communal property has slowly been converted into private. It reminds us that there is another way of viewing art, literature, film, and all other cultural forms, not as the immaculately conceived creation of the exceptional artist, but instead as the result of a repurposing and reinterpreting of preexisting ideas, and thus not as private property, but communal.

We've just heard clips starting with

Second Thought exposing how intellectual property laws turned insulin and COVID vaccines into cartels, with the WTO stalling patent waivers for over 600 days as millions died.

PIRGvideos laid out how patent abuse blocks affordable generic drugs, noting that one generic drops prices 40% while multiple generics can cut them 80% or more.

Tom Scott pointed out that whether it's Giphy, gaming footage, or Mystery Science Theater 3000, fair use often comes down to who can afford an expensive court fight, not who's legally right.

LegalEagle detailed the difference between copyright and trademark, explaining that Steamboat Willie is now public domain while Disney claims its Mickey logo as a permanent trademark.

This Is Hell! described how IP has produced corn crops that can't reproduce and left neglected diseases untreated, calling intellectual property an existential threat.

Taylor Lorenz traced how Google digitized over 40 million books while preserving the originals, then detailed why copyright law pushed Anthropic to buy, scan, and destroy physical copies instead.

And Tom Nicholas traced how our modern concept of intellectual property borrows from physical property, comparing copyright's emergence to the enclosure of England's common land that turned communal resources into private ones.

And those were just the top takes, there's lots more in the deeper dives sections,

If you get value out of the show - and want to make sure we can keep going while getting it delivered ad-free to the new, members-only podcast feed that you'll receive, sign up to support the show at bestoftheleft.com/support - there's a link in the show notes - through our Patreon page, or from right inside the Apple Podcasts app.*

If you have a question or would like your comments included in the show you can record a voice message - re-recording until you're happy with it - by tapping the link in the show notes,

You can message us on Signal at the handle bestoftheleft.01,

or you can simply email me to [email protected]

As for today's topic,

One of the founding myths of modern economics is the tragedy of the commons. And the argument for why it's a tragedy and not just a regular bad thing is the irony of everyone involved acting rationally in their own self interest only to have everything collapse for everyone. This is always explained with the story of the shepherds bringing their livestock to the common grazing area and, trapped by rational self interest, depleting the shared resource and collectively ruining the system.

This parable gets at the truth of something, but not what most think. Elinor Ostrom actually won the Nobel Prize for Economics in 2009 for documenting real communities managing real commons successfully for centuries. The thought experiment about the shepherds feels true, but the compiled data says otherwise because people are capable of self-regulating better than the tragedy of the commons myth assumes.

There is a tragedy involved but the emphasis was mistakenly placed on the commons when the tragedy is actually about how rational self-interest can lead to detrimental systems if they're not designed correctly from the start. Cue the explosion of libertarians' heads.

The tragedy of rational self-interest can play out anywhere there's no system of rules designed to manage the system for the good of all and, in our extremely privatized world, the tragedies mostly play out inside the property game where rational actors collectively produce ruinous outcomes for everyone.

I've long thought that demonizing individual corporations for their lack of morality is misguided. They're designed to be amoral maximizers, pursuing profit through whatever means available, regardless of which specific people are running it. That's the system working as designed. Another tragedy of rational self-interest is that this design bends people, who are moral actors employed by corporations, much closer to the shape of the amoral corporate structure. Their job depends on driving profit for the company and if their morality gets in the way of that, most of the time, the profit motive will win out and those people will be replaced by those without the same moral qualms.

That's a system, designed entirely by humans with moral agency, that systematically pushes people away from acting morally. But that doesn't mean, necessarily, that this was intentional. The road to hell is paved with good intentions that are sometimes turned into law.

Rules that create things like the corporate structure or copyright protections often come from a sincere origin and are presented as a solution to real problems. Capitalism promises to reward the hard-working small business owner with equal footing under the law. But that's just during stage one. The system takes on a momentum of its own once unleashed.

It can be said that everyone is protected equally under the law, big businesses and small businesses alike, but if defending your rights in court depends on your ability to pay the lawyers, then the playing field is suddenly very uneven again. Just as it's very different for an individual artist to attempt to protect the copyright of their work compared to a large studio that may have an army of lawyers.

We tend to think about these things as snapshots, like the small business owner getting their start, or the tension between a big business and a small business. But things get worse when you take a step back and watch it play out in a time-lapse over decades.

It's not just that the big business will be better at defending their rights in court with their fancy lawyers. Those lawyers will have argued in dozens of cases over decades legal theories that structurally benefit big businesses over small businesses and corporations over people. They won't win all of their cases, but they'll win enough to set precedents, and those precedents compound over time. Having high-paid lawyers starts as an advantage, like outgunning the little guy on the battlefield, but given enough time, those big guns morph into a fortress, and the divide between the corporations and everyone else gets built into an impenetrable moat.

But they're still not done because winning the game based on the old rules that were intended to create the level playing field ends up granting those winners the power to rewrite the rules entirely. Not satisfied with having all of the rules interpreted to their advantage, corporations begin pouring money into our corrupt, pay-to-play political system and ask for old laws to be stricken, new ones to be written, and in the most brazen version, ask for exceptions and carveouts, all designed to benefit themselves.

This is how a well-intentioned law like copyright protection morphs over time from something genuinely intended to protect all equally into something that does the opposite, without ever declaring that anything has changed.

The best trick the apologists for capitalism in general or copyright protections in particular have is to defend their systems based on their sincere origins, the promise of laws applied equally to all, intended to give protections to the independent artists and the small business person alike so that they could find the footholds they need to build something with their own efforts. That argument only holds if you pretend that the later stages don't exist.

And unlike the shepherds grazing the common, this isn't just a theory because corporations leave paper trails. We know that in 1998 Disney lobbied to have the copyright walls raised higher for their own self-interest, and in 2025 OpenAI and Google formally asked the White House to carve exceptions through those same rules because it would benefit them.

It's rational self-interest all the way down but what we inevitably get is a system that's more and more bent to the will of corporations, never that imagined level playing field.

If you've ever met two libertarians, it won't surprise you to learn that libertarians as a whole can't agree on whether intellectual property should fall into the sacred category of property or into the reviled category of state-granted monopoly. And the reason there's so much disagreement is that they're both right, which really just demonstrates how much of the ideas behind IP are built, not natural truths that we've found and made law. And that which was built one way can be rebuilt.

This whole story is about the tragedy of rational self-interest in systems of private holding for private gain, which inevitably devolve into an ever-greater divide of wealth and power between the haves and the have-nots.

In our system, the rules and rule-makers get captured but, interestingly, systems set up as commons tend to resist capture because power is diffused.

For instance, Wikipedia is set up as a nonprofit and is built and maintained by volunteers, but it didn't start out that way. The original idea was for Wikipedia to be run as a for-profit company, even though the content was built on an open platform by volunteers. In 2002, the owners floated the idea of selling ads, and in protest, the Spanish-language edition's community began copying the entire encyclopedia and leaving to set up their own competitor, Enciclopedia Libre, at the University of Seville. That show of power, combined with the open nature of Wikipedia itself, meant that it simply couldn't be enclosed and extracted. They abandoned the idea of ads and switched to a nonprofit model. The fact that it's designed as a commons meant that no one could ever build a castle and dig a moat around it.

Rational self-interest is going to do what it's going to do, as is the profit motive and the corporate governance structure. Spending time trying to convince people to be better is always going to be a waste of energy. Instead, we need to make sure that the systems we're building have the incentives pointing in the right direction so that people's self-interest pushes them in the direction of moral choices and pro-social behavior.

Rules and systems that have been captured are no longer serving their intended purpose and deserve to be torn down and rethought from the ground up.

[

And now, we'll continue to dive deeper on 4 topics today. First up;

Section A, HOW WE GOT HERE

Followed by Section B, WHO PROFITS, WHO PAYS

Section C, THE DISNEY PLAYBOOK

And Section D, WHAT DO WE DO ABOUT IT

I call this the five phases of corporate IP ownership. And what do I mean by that term?

the ownership of a set of intellectual properties, in this case I'm talking about artistic intellectual properties like Spider-Man, by a corporation rather than by an individual or the artist who actually created them. And because they're owned by a corporation rather than the artist who created them, you end up with an interesting cycle that I've seen repeated in many different franchises.

The first phase of this cycle is the creation phase. This is when a new individual or group of creators create a new property, and it's usually done for hire, which means when they create it, it becomes the ownership of the corporation that's funding their particular endeavor. And it's usually a low budget affair.

It's brought to market rather cheaply, maybe a one-off issue of a comic, maybe a, a fairly low budget movie that's not expected to return, a whole lot of investment. And the reason it's low budget is because the corporation is looking at something that's, an unexpected return. It's unestablished, it's brand new, and therefore you don't know how much money it's capable of making.

Phase two is the explosion phase. This is when the property explodes in popularity unexpectedly. You can think like Star Wars, which only opened in a couple of theaters and then grew by word of mouth into something that became its own phenomenon. The corporation in step two of phase two immediately moves to capitalize on the growth, pushing the creators to make a follow-up work.

In this case, something like Aliens. And that explosion phase can produce some really amazing movies. think of some of your favorite sequels. They're happening in the explosion phase, for the most part. Next comes phase three, which is the milking phase. And in the milking phase, the creators, having experienced success, demand more money for their contributions.

The corporation, understanding that future sales In media are based on more on past success than they are on the actual quality of the media that you're being produced because consumers can't judge the quality of it until they buy it. they refuse the deal. They refuse to give the original creators more money, and they opt to bring in new, younger, cheaper labor, to continue the franchise in the absence of the original creators.

The original creators, which are now able to negotiate higher premiums for their work on the open market, leave the company and go work on future projects, either self-financing them or, working for another company at a higher pay rate. They move on. Second step of the milking phase begins in earnest.

The types of media produced are amplified. You get books, comics. You get movie adaptations of comics. You get many different, variations of what the original product was in order to milk it. You have many sequels, many different variations on what the original successful movie happened to be. You have merchandise that's really quickly rolled out in order to capitalize on the gains of the popularity of the original franchise.

And during this milking phase, you begin to experience the decline. The next entries into the franchise have a notable drop in quality but are successful at the box office and usually with children, mostly because they don't know what they're getting before they, they buy it, and they're banking on the past success, they're banking on the quality that they've already seen to provide, information for future quality.

And so the milking continues. The decline of it, of the intellectual property continues. As the market for the expanded products shrink, the corporations cut back on production, less toys, less comics. The future franchise entries have lower budgets. And eventually, you enter what I call phase four, which is the death or hibernation phra- phase.

You have a franchise that finally dies You may have studios keep writers on staff if they're making movies, but production never begins on a movie. Certain sequels may be caught in development hell. The last successful creators of the franchise move on to do other things, and the back catalog continues to be fairly successful and continues to generate interest.

In something like comics, you have a titular character during the death phase maybe make guest appearances in other series without having a series of his own, to star in. That goes on for an indeterminate amount of time before you enter, what I call phase five, which is the reboot phase. A reboot phase is after a certain amount of time has passed.

Once the franchise has disappeared for a while, the studio recognizes that consumers still enjoy the first entries of the franchise, and the lack of popularity of follow-up entries to the franchise may have been forgotten. And with the power of contemporary nostalgia, they make a risk assessment and determine that a reboot, a sequel, or a requel, which is a reboot sequel, would be a profitable risk.

They also know that people are likely to forget a lot of the bad things about the past and really hope for a return to form, having had a big break where there hasn't been any media. That there, th- there's a belief by consumers that studios are not gonna commit unless they are able to create a better product than what came before.

Step two of the phase five of reboot is the franchise is revived. The new product comes out. Fans begin hyping the coming product amongst themselves for free. You can think of all the hype that surrounded The Force Awakens. New talented artists are brought on board to produce a high production value, movie or high production value, toys, comics, TV series, whatever, the, the new version of this is going to happen to be.

Old figures from the original movies make cameos and show up in the new versions of these particular movies as a way to let the old fans know that, they ought to embrace this new version. They ought to embrace the new reboot because the old people are still on board. Now, in some cases, like with the Ghostbusters 2016 reboot, the old actors were forced through contract negotiations to make cameos in the movie.

they didn't support the creation of the movie. But y- there's other examples. There's Leonard Nimoy, appearing in the new Star Trek movies, before his death. There's also the appearance of, Han Solo, the older characters from Star Wars in the new requel or sequel trilogy, to draw a thread for old fans to make them believe that there's a continuation, of what they liked before happening in the reboot.

A new style is also embraced at the same time to entice new fans. However, that may also put off fans. If the reboot is successful, the product hits, consumers respond pretty well, think of like Force Awakens, the flaws are initially overlooked because of the hype and the fans are initially pleased, then the franchise returns directly to the milking phase In some cases, the reboot is not successful.

And then the franchise still returns to the milking phase, but with a shorter duration of it, trying to get the last value for the, for the franchise out before it reenters hibernation or just full-on death. And this cycle, once it goes back to the milking, will repeat indefinitely until the IP is sold off at a discount or is completely exhausted.

And I don't know how long it takes for an intellectual property to be completely exhausted. But at some point, the milking will stop

one of the, the big, statements that they made about the Civil War in particular was that slavery did not cause the Civil War, right?

We're all familiar with that battle, I think. And their idea there was that slavery was a unprofitable economic institution that would have died out, if the Civil War had not itself- ... killed it. So the whole idea that, white Southerners didn't want compensation really plays into that idea, because if slavery was so unprofitable, like, why would they have needed- Why do they care about, yeah

compensation in the first place, right? And so they're really trying to downplay, that economic significance of slavery to the white South, to America as a whole. and they're not going to, include those claims for compensation, during Reconstruction, particularly because one of their, other main tenets is that the White South just accepted emancipation with the end of the war and Confederate defeat.

So a lot of my work is just showing no. 

Yeah. And, and for, for good reason, they, contested this, the idea that they should be compensated. it's, a huge... the, what is it? The Fifth Am- It's a huge taking of property- Yes ... you could argue, right? which is what they did.

and that, in fact, and maybe you can go into it more, but that kind of explains how in fact it isn't a dying, institution, the, institution of slavery. That it's doing- ... pretty well, at the, in the eve of the Civil War. 

Yeah. And I think one of the most interesting things about the Fifth Amendment debate is that, this debate over whether or not slave owners had a Fifth Amendment right to property in humans, right?

as opposed to any other form of property, was really a question that was at the heart of the abolitionist movement and the debates that led to the Civil War in the first place. 

Sure. 

White Southerners are insisting that, enslaved people are property like any other kind of property, whereas abolitionists, and, many anti-slavery politicians are saying, no.

Property in humans is, it's very different." And of course, they're also insisting that there cannot be such a thing as property in humans. That's a violation of enslaved people's natural rights. so that's w- a lot of where that debate or how that debate is shaping in the Antebellum era. And after the Civil War, you really see that being rehashed in these debates about the Fifth Amendment, because that it hadn't really been tested.

Although the- ... Dred Scott decision addressed it, right? That decision does say that enslaved people were property under the law. But the Civil War itself became the test of this specific Fifth Amendment debate. 

Although, it's a little complicated because in fact, DC enslavers received, 

a compensated emancipation. How did that kind of... there you have, th- this has already happened. how does that kind of enter into the debate? And maybe, again, for listeners, just say a little about the kind of political, rationale for, compensated emancipation for DC 

So for some politicians, yeah, the, the Fifth Amendment was a large part of it.

that's definitely some of it behind the rhetoric. on the other hand, though, you have folks like, like Sumner saying, "This is a ransom," right? This isn't, this- compensation for DC slave owners is not compensation, it's a ransom, for humans, which, 'cause he's playing up that abolitionist argument of there's no such thing as property in humans.

and, I think you can also look at a lot of what is happening in conversations about compensation to not just DC slave owners, but also slave owners in those border states that, that remained in the Union and still had slavery. folks really, emphasize that the, the federal government is trying to maintain the loyalty of slave owners, s- right

so that, y- for the war effort. I think there's also, and this is something, that I hesitate to talk about because I'm thinking it through right now, but I also think there's a degree to which, Federal policymakers are, trying to express these, th- this c- these compensations to slave owners in DC, in border states, not as a property, argument, right?

They're not saying that they are compensating slave owners for the Fifth Amendment. They're saying that they are compensating, slave owners for the labor that, of th- those enslaved people- ... that they are missing out on, right? So they're they're making this little twisty argument so that they're not making any kind of precedent.

and they're ta- it seems like they're taking little baby steps forward- ... too, because, up until the Emancipation Proclamation, the Provisional Proclamation kind of gives a nod to compensation, and, Yeah ... and of course, even the Eman- Emancipation Proclamation says nothing about, the issue of slavery in the states that were loyal to the Eng- to the, to the Union.

... so then, I guess then if we're gonna move forward in that sort of thing is that, then with the 13th Amendment and slavery is abolished, it would seem that would be the time to say, "Oh yeah, and you're not getting compensated for it." But that doesn't happen. 

Yeah, that doesn't happen, and I think that's largely because, there might be a few reasons, and this is also a question that I'm working on in these revisions as, as I'm at the GLC.

I think that, one, the folks writing the 13th Amendment are the same are thinking the same way that Sumner is, right? They're thinking there's not property in humans anymore. the war is over, but those, congressmen in the border states, like Kentucky, for example, they're making those arguments about the Fifth Amendment, even during the debates on the 13th Amendment.

They're saying, no, this is, you must compensate slave owners," especially in the border states. although what happens after the war, becomes which is, where the bulk of my dissertation and my research lies, is in- How, I don't... I just don't think that a lot of, folks were thinking at that time that former slave owners in the South would come back and say, "We must have compensation," after they were defeated, right?

it's... And then that does happen, and they're like, "Whoa, hold on a second." and it also, I think, speaks to just, yes, we're talking about economics, right? We're talk- Indeed, slavery was an very important and valuable part of the US economy. But especially after the war, a lot of this fight is just a fight over political control.

So- 

Yeah ... 

so former slave owners, white Southerners, and Southern politicians are saying, "We should have compensation as a part of a reconstruction plan," believing that they might be able to push that through once their representatives are readmitted into Congress. And when they d- Sure ... And they don't.

And when they don't, they're going to debate that, and Congress is going to include that in the 14th Amendment, as well- Yeah ... instead of the 13th Amendment. 

I think- So the kind of pushback has been happening, and that's... And so say a little about- ... Section 4, I, I wouldn't have known that otherwise except for- Yeah.

you. It's not the, it's not the section that, rings in everyone's, ears, when w- ... we talk about the 14th Amendment. 

Yeah. 

Yeah, when I present my research to lawyers or JDs, I usually start off with an introduction. Like, when you think of the 14th Amendment, we all think of, Sections 1 and 2- Yeah

particularly. and how foundational they are to, civil rights in the US. And then I'm like, wait, what about this random little clause right here? Seemingly random. yeah, it's... And honestly, that section is really what kinda confirmed that my research would be about, compensation for former slave owners because, again, if they didn't want it, then why did, why is it in the Constitution- right

that they wouldn't get it? Yeah. essentially the 14th, that section of the 14th Amendment comes out of those, early post-war politics, right? Where, w- so white Southerners had, gone back to the drawing board with their state constitutions as mandated by Andrew Johnson in 1875, 1865, excuse me.

And- What I found in those constitutional conventions and in politics was that they usually accepted the 13th Amendment, largely because they had to. Yeah. and their plan was, okay, once, once we accept the 13th Amendment, once we rewrite the state constitution, then we can reenter Congress and petition for compensation.

we had our colleague Claire Priest on, who does a lot with, sl-slaves as property, but insists that, they, pivotal fact is their use as collateral for credit as part of the kinda birth of American capitalism across the board in, in, in thinking about the, the pr- the property regime and how important it was for American growth, which we know and love.

So I guess I wanna get to, to, from you, w-what do we say once we've identified these tainted origins or tainted results, from those who, say we've, there are these other sources or, on balance it worked out well 

sure. I think, it's an interesting way to present it, tainted origins or tainted outcomes.

I just don't think about it as a question of taint. I think that's kind of the wrong framework. I think that these histories, people have a hard time with them. They have a hard time with them because there is very little education about them. they have very few ways to wrap their minds around them.

They've been suppressed for so long that even people who are fairly knowledgeable about a lot of American history and law, all of our colleagues, are thrown out of their element when confronted with these histories. And one really common reaction I get to my work when I present it, I think you've seen this, Sam, is this idea, those histories were just all violent, but that's separate from law, right?

That was just genocide, and we should tell people about the genocide, but, that's different from law. We have all these received understandings about law and how it's good and it facilitates people's lives and makes it better and easier and so on and so forth, the kind of liberal narrative that Maggie was pointing to, in her last answer, right?

The, the solution is to extend that to everybody. that a lot in conversations about credit, right? The answer to, people's financial problems is just to get everyone access to credit. It's a great thing. I actually think Claire's work is so important in this respect when you look back at this long history.

She's completely right to point out, to point to the use of enslaved peoples as collaterals for developing the credit system at all, and there's other scholars who've talked about this. People like Joseph Inikori have looked at the development of these huge bureaucratic credit systems, that come out of the slave trade.

I, as have also looked at this question with respect to land, and I think it's really notable that before the colonization of the Americas, this type of use of land as collateral ending in easy foreclosure that would just throw a family off of their homes, out in the world with nothing, no way to survive, just wasn't something...

That just wasn't something that happened. There were so many protections to prevent against that, recognizing the massive social instability of having such a mechanism in place for, for, for non-payment of an unsecured debt to just cast a family out. There were just a l- lot of different legal mechanisms that made it very difficult, to make that happen, which Claire has written about extensively.

I've written about it, as well But when you begin the colonization, when you launch the colonization enterprise, what you really see is a willingness to experiment, I think, with known forms of transactions, but introduce greater violence. There's just no question that there was more leeway when it came to violence and infringement on aspects of people's lives that law has otherwise protected and that societies have held sacred.

almost as soon as colonists came over, they began to foreclose on Native Nations' land. They began, processes of lending that we could only describe as predatory, and then tallying up those debts and taking land as a result, and transactions that were not understood, not clear. and as I have said in, in an earlier paper, if that was confusing to Native people who were getting their land taken because they owed so many shillings for bolts of cloth they took from the store, it would've been pretty unrecognizable to English people as well.

That was just not something that was routinely happening. And so my interest in these evolutions from this period that we don't learn about is how our law has changed. Routine easy foreclosure is central to our entire real estate system now. There is no flow of credit without the ability to foreclose in this way fairly easily.

It makes the whole thing run, and that has been true for some time, and I think Claire, in her work, is tracking some of the evolutions of that with respect to the slave trade. And there was a lot of really interesting, legal experimentation and developments in how to categorize lands that had just been taken from Native people, enslaved human beings, as collateral in order to keep plantations whole, and her work has done a lot to uncover that, and my work has also investigated this dimension.

That is an unmistakably racial project, where racial formation is used as a resource that makes people more willing to experiment with violence. there is more violence that becomes a way of producing, more liquidity. Frankly, there's-- I just don't know how else to describe it, and those are evolutions we have with our law still, even as, even as the formal boundaries, this kind of practice is only applicable to Native people or to Black people.

Even as those have been lifted, the kinds of mechanisms we have in law that infringe upon people's basic security and ability to stay in their homes. we still have that as a mechanism for producing credit flows, born out of experimentation, that is easier to popularize when you use it against communities of color, the community you're trying to colonize, the community that you've enslaved.

And so what I'm interested in is the way that racial formation is a resource for this type of economic development and still is. It's really hard to argue that it is not. this is a dynamic system still in flux. I don't know how you could argue that race doesn't play a role in it, right? it just does.

And there's recycling of old methods. There's the invention of new methods. This is something I saw as an attorney as well, is constant innovation as to new different kinds of form of lending and foreclosure, used on really vulnerable popula- populations 

, My mistaken language of taint, the trouble there is that , it restricts the phenomenon to the past when the whole point is that it's ongoing in structural ways that, are open, not hidden 

I think that's right, but I also think the very word taint suggests that there's something pure , like there's something essential and good, and then there's the kind of infection that we can remove.

Yeah. 

your story is basically has to do with the slaves as collateral, for credit. Yes. and, y- you do not ... ha- have a very different attitude towards the function that slavery might have played in, the rise of capitalism or growth or whatever we're talking about than the, th- this, this new school of thought.

So could you just talk about, whether you have a critique of them, or whether you're telling just a more important story that they've missed? Or, is there an opposition or more kind of just different arguments that could sit alongside each other? 

Yeah. first of all, I think it's great that there is this literature because it's been a long time coming if you think that Eric Williams wrote his book, Capitalism and Slavery, in 1944, and there's been very little written.

I also wanna just mention that when I wrote this book, I was very committed to the idea of doing what I would... I guess you could refer to as, say, a unifying history. I get disappointed when I see that people were writing either about the founding era or about slavery, which seemed to me this is not representative of what it, the country, and it's very hard to write about this country in one, with one idea.

But I was committed to that, and so it's a bit clunky in places and, but it's a, a goal of mine was to try to write about the whole country at once, or, the 13 colonies and, and with the, perils of doing so. with regard to this n- the, the literature on slavery and capitalism, I would say I'm wanna add to it.

And I recently for people who haven't, read this literature, I think a great introduction to it and a great kind of, sort of literature review is the Matthew Desmond New York Times op-ed from 2019, where he draws from a lot of the literature. And I would say the literature has largely focused on a later period, on the 19th century, and you have financial institutions at that point, so you have banking, and the like, and you have cotton, which was a different industry, in some ways, although it just...

Cotton, w- the scale of cotton, and also the fact that cotton was so lucrative, just eliminated any thought that this was, slavery was gonna go away on its own. in the period... So one way I feel I'm adding to the literature is actually just by looking at this, this period where I think there's been less, and whether or not capitalism is going on at this period is a question.

I would say, people are defining capitalism lots of different ways right now. I, my inclination is to think of capitalism as a time where there are big financial institutions and the like that are consolidating capital by, by i-i, issuing debt instruments, issuing currencies, issuing stock, and they're these institutions designed to accumulate capital.

Now, you have, the Bank of England is, it was, chartered in 1694, so that, that's starting to happen in the period that I'm looking at, but it, but the co- In the colonies, actually, there were efforts to create banks that were suppressed. so there wasn't really banking. But I think that what I'm, So I, when, I think when you think about the emergence of capitalism, you might look, you... There are these sort of financial institutions that are generating a lot of liquidity for the economy, but then I think this other piece of it, which is the way that property rights are defined and the way that these claims are processed, actually w- it lets people from the bottom up use the property that they have to leverage to, to access this capital.

And so when I think about the slavery and capitalism literature, first of all, one, the fact that slaves are part of the capital is, should be a, is a huge Should be a huge part of our conception of what slavery was about. we talk about torture, we talk about rape in slavery, we talk about the inhumanity of having, your autonomy taken away, but the fact that you're...

to be collateral creates insecurity of a magnitude that is hard to fathom, where, you know, whether your owner is going into debt or there's a bad weather year, and the vulnerability that you have, to being seized. in fact, I remember, I think it was in Annette Gordon-Reed's, book about, Washington, that, he, she talked about how, that Washington was known for not torturing his slaves, but he would walk down and say, "I could just sell you."

And that is torture in my mind. Interesting. That is, so that's, in terms of how we think about slavery, I think that this is a big, important part. But also the fact that slavery was a system where the labor is part of the capital clearly allows people to access more capital and leads to the expansion of the institution.

there's an interesting, Gavin Wright has a book, Gavin Wright, from Stanford, has a book called Slavery and American Economic Development, which I, is one of my favorite, books of history actually that where he points out that if you look at the time of the Revolution, if you look at, compare wealth in North and South, that if you include slaves as part of the wealth, then per c- per free c- person capita, the South was much wealthier than the North.

but then when you take away slaves as part of the wealth, then the South is much poorer. So the, it shows you that the fact that slaves are part of the, were part of what made these economies wealthy and that what drove them to expand and thrive. So I think that it's, slavery is connected and I, but I think, what I'm looking at are the way that people are using their property, including slaves, to access the credit that's available, partly coming from, this financial sector as well.

We need three things. We need to update copyright law. We need a good small claims court for copyright, and we need to shorten how long copyright lasts. So first, updating the law. This is a big goal, but the entirety of international copyright law needs to be rewritten to reflect what's fair in today's world.

Everyone will have a different opinion of what that is. I'm actually fairly conservative on it. I'm not convinced that we should massively widen the definition of fair use because every bit of freedom you give to individual creators also makes it easier for big companies to rip them off. But I'm not gonna say where the line should be drawn.

It is a job for consultation and conversation where everyone is at the table, not just the big publishers. And if completely rewriting international law seems unlikely, then it's still possible to push for changes. In 1990, one article by one judge swayed opinion among the US legal community and helped change the most important factor of fair use from whether it was commercial to whether it was transformative.

It is entirely possible that new publications like that could help improve things. The judge's conclusion in the article also makes an excellent point. There should not be a clear and unambiguous definition of fair use, what he calls a bright-line standard, unless we have a good standard. And we don't have one.

The border of fair use has to be messy because people and creativity are messy So if fair use is going to be messy and if it will inevitably lead to conflict, let's make resolving that conflict quick, fair, and accessible. This is already starting to happen in the United States, but badly. The UK has one of the world's friendliest copyright regimes for individual creators.

We have the Intellectual Property Enterprise Court, which is mainly based here at the Royal Courts of Justice in London, and it's a specific court to deal with cases about copyright and patents and trademarks. And that court has a small claims track. If you're an individual photographer or video maker, you can do the research, file the right forms, follow the right procedures, and issue a claim as a litigant in person, which is the fancy British term for without a lawyer.

I've done it because a major company ripped off one of my videos. This court is designed to be more friendly for individuals. The procedures are more relaxed. It's almost like mediation rather than a court, except that if all negotiations fail, then there is a judge issuing a legal order at the end of it.

It is stressful. It is hard work. You need to get all the details right. You should probably get a lawyer if you're going to do it. But if your job is basically reading hundreds of pages of nerdy detail and summarizing it into something the world can understand, then yeah, it can be done. It is really nerve-wracking.

Like most of the people who walk into the admin building of one of the biggest courts in the country without a lawyer to try and file a claim, they don't have the best grip on reality, but all of them think they do. And there I was, walking in, no lawyer, thinking I had a case, thinking I had a grip on reality.

Statistically, the odds weren't in my favor, but I filed successfully, and the company settled with me. They paid me to drop the claim because they were in the wrong, and they knew they were in the wrong, and they knew I could actually get it to a judge in exchange for a bit of work and a court fee of just over 100 pounds.

There is a plan to do something like that in the United States. At the time of recording, the Copyright Alternative in Small Claims Enforcement Act, the Case Act, is passing through government. Unfortunately, it has massive flaws. Using the new small claims track is voluntary for both parties, which means that if you want to sue a big company, that company can just choose to opt out and require you to take the expensive path.

And to quote an explainer, "If the losing party does not comply with the judgment, the prevailing party can bring an action in federal court to enforce it." So if you actually want the judgment to be effective, you may have to take the expensive path anyway. In short, all the power is still with the people who have money.

Oh, and it means that it's now much, much cheaper for big companies to try and enforce unfair claims against large numbers of individuals. It's a default judgment mill. The Case Act is not a fix. It's a step in the right direction, but it's not great, and it may well lead to more problems.

There's also a wider problem dealing with this across international borders, but that's a separate issue. Having a working small claims process in the United States would help address the massive imbalance between the rights of individuals and the rights of huge corporations, at least on this platform, on YouTube.

And even if that's just in the US, from there, the world will follow. So then finally, we shorten how long copyright lasts. Under current US law, if a modern work has an individual author, then its copyright generally lasts until death plus 70 years. For works by a corporation, it's 95 years from publication.

There are a huge number of complicated factors for older works because of the many changes to the law over the decades, but that's a decent rule of thumb, and that's too long. Singer-songwriter turned politician Sonny Bono, the person who the Copyright Term Extension Act of 1998 was named after, he believed that copyright should be forever, that the great-grandchildren of Shakespeare should still be able to charge licensing fees for adapting Shakespeare's work.

Or more likely, those rights would have been sold to a corporation at some point, and Shakespeare Intellectual Property Limited would now be able to collect license fees into eternity. I think that opinion is so ridiculous as to be indefensible. If copyright lasted forever, if nothing ever entered the public domain, then yeah, someone would still have the final say on how Shakespeare could be adapted or performed.

Perhaps you could perform it however you wanted, but only by paying an enormous license fee. Little community theaters like this? Priced out. Or perhaps someone would want to defend the Shakespeare brand guidelines and insist that all adaptations be entirely faithful to the original text. So no Baz Luhrmann Romeo and Juliet without permission.

No 10 Things I Hate About You without permission. The Lion King? It's very close to Hamlet, that. You wanna, wanna avoid that lawsuit. Making a reference to how all the world's a stage, pay up. Needs a license. And if you think that's ridiculous, find any book that quotes one copyrighted song lyric, maybe to introduce a chapter.

There will be an acknowledgement somewhere that they've got permission from the copyright holder. The point of copyright is to allow people to profit from their creative work. I'm not against copyright. I rely on copyright to earn a living, but the works that fall into the public domain are vital for creativity.

And patents only last 20 years. 20 years before your patent expires and anyone can take your actual, physical, real-world invention and just churn out cheap copies for everyone. If you invent something that literally changes the world, great. You get 20 years to make all the money you can, and after that, you will be out-competed by other people who can do it better and cheaper.

But write a song, you get until you're dead, plus your descendants get another 70 years. That is ridiculous. And meanwhile, all the orphaned works, the obscure things where no one can track down the copyright holder anymore to ask for a license, they can't be archived. They can't be copied. They often can't be preserved at all just because no one knows who to ask for permission.

The longer copyright is, the worse that problem gets. And I know a 20-year copyright term that matches patents would never get through modern politics. When you have enormous corporations that earn billions from their copyrighted back catalog, it is trivial for them to spend a fraction of that on lobbying to make sure copyright doesn't get reduced.

I would like it to be 20 years. I would campaign for 20 years, but I also know that it's not gonna happen. And to be fair, it does feel like the people who made the songs of the '80s and '90s, the songs that are still being listened to in this current nostalgia cycle, they should probably be able to make some money from that.

So I would suggest 50 years. It's an easy number. It allows a couple of nostalgia cycles to happen, and it would mean that right now the '60s would be public domain and the '70s would be on their way. The decades that are no longer pop culture nostalgia, but history. Pachelbel, Chopin, Beethoven, they should already be joined in the public domain by Dylan and Mitchell and Hendrix and Klein.

Shakespeare and Shelley, either Shelley, they should be joined by Lee and Heller and Orville and countless others, including the works that no one can trace the owner of because after 50 years, you shouldn't need to trace the owner of a work. You should just be able to use it. Anyone should be able to make a James Bond movie by now, 'cause they'd probably do a better job.

Yes, the people who have already made ludicrous amounts of money would not be able to make as much anymore, sure. But the artist's work, the thing they're supposed to actually care about, could be enjoyed and built on by everyone. And the few artists from back then who are still popular will be absolutely fine, continuing to make money from their world tours and merchandise and public appearances and newer albums.

And an entire new generation would get exposed to music and writing and art that might otherwise be forgotten about.

Next, Section B, WHO PROFITS, WHO PAYS

the broader issue, the meta issue for Meta- ... and these other companies, has to do with intellectual property rights at large.

Yeah. I don't know if you saw this, but- Jack Dorsey posted on X a couple weeks ago, I made some notes 'cause I wanna get this right. 

Yeah. 

He basically said abolish IP law. And then- 

Whoa ... 

Elon commented to that and said, "I agree." So what are they saying? 

So we can all build Teslas. 

Why are they saying- We can all have 

access to 

all their Yeah.

Why are they saying that? 

Yeah. 

What is informing that perspective? So basically IP law, intellectual property law is the foundation upon which an artist or anybody can create a work and then protect it- Yeah ... as their own, right? Yeah. Just like a property right. 

Books, music, movies, podcasts, everything- Yeah

is premised on IP law. Yeah. the reason they don't like it is because it's an annoying obstacle in this advance of artificial intelligence to commandeer- ... everything that's on the internet and use it for whatever they wanna use it for- 

Yeah ... 

unhindered. to me, it's sorta this sh- shouldn't this be an opt-in situation?

Yeah. Or just because you've posted something on the internet, it's free game for whoever wants to use it for whatever purpose? That seems to be what they would prefer. 

Yeah. 

They don't wanna be restricted in the way The New York Times is going after OpenAI- to have to purchase access to those data sets.

That's the last thing they want, right? No. And so at the same time, and I'm interested in what you think about this, there has been, with the rise of social media, a complete shift in the average person's perspective when it comes to intellectual property rights. I don't know about you, but, videos or reels that I put up on Instagram- people will take them and make their own reels and put them on and don't- Yeah ... they don't credit me or whatever, and I can guarantee you that it doesn't even cross their mind that they're taking something that somebody else created that took time- Yeah ... and money- Yeah ... and resources and energy, and just used it without thinking about, the fact that fundamentally, my lawyer brain is like, it is, that is un- illegal.

it's like- Stolen. But it's so permissive now- Yeah ... that there isn't even an inkling of, of like maybe I shouldn't do this or this is wrong. And so when that's seeped down, all the way throughout culture- there is a ripple effect to that, which is that I think as a culture we think differently about these rights- Yeah

and what they mean and the level of importance, the role that they play, you know- Yeah ... to allow, certain industries to even exist, let alone, artists the freedom to create and, create m- make a living off of their work. 

The, The prevalence of criminal acts doesn't make those acts less criminal.

And there is a massive power dynamic going on here with people like Jack Dorsey and Elon Musk in this example that's reminiscent of history. There's been a lot of entities with a lot of power who have not respected the rights of others in order to have financial gain. This country's built on snatching bodily rights away from- African people to build a country, 'cause you just don't see them as people anymore. But they would never reverse that, right? So I doubt very highly that Elon is willing to give up all the patents that SpaceX has, or Tesla. So he wants an exclusive, a superior ability to extract and exploit, and essentially colonize this frontier of us.

They want to mine us. The thing we've done to the Earth, they want to do to people: DNA, financial transactions, your location history, your tweets, and your X posts, and your Instagram feeds, and your podcasts, so that they can concentrate more wealth. It's not about banishing it for everybody.

Yeah. 

It's about advantaging themselves and treating us as raw material, as a natural resource that they can extract and burn out. 

Did you see, Sam Altman, at the recent TED Conference? 

Thank you for bringing- It was about this- ... so many receipts- Yeah ... to this conversation. So- I did see most of that conversation.

Let's see 

what you found ... so I think this, this story exemplifies what we're talking about. 

Yeah. 

This idea of intellectual property rights. So Sam Altman was at TED. He did a fireside with Chris Anderson. 

Yeah. 

and Chris basically showed this Peanuts comic strip up on the 

screen- ... 

that AI had created that looked exactly like a Charles Schulz Peanuts strip.

Yeah. 

and in 2023, Sam had said, "We think that creators deserve control over how their creations are used and what happens beyond the point of them releasing it into the world." At TED, he's shown this cartoon, and Chris says, "This looks like IP theft." And Sam says, "If you can't tell the difference, how much do you really care?"

And then he said this. Yeah. This is the button on it. Yeah. He says, "Clap all you want. Enjoy." And I think that really speaks to the, The, the kind of level of I don't give a fuck- This arrogance ... that these guys have. Absolutely. Yeah. yeah. 

Yeah. 

I think they would frame it, frame this, what is really theft as democratizing access to creativity.

Ironic 

to use the word 

democracy- 

Yeah, I know ... in this context- it's like there's many, you know- ... when the will of the people is not anywhere 

near this. 

Yeah ... rhetorical linguistic devices- Yeah ... to rationalize this. But this is happening in real time. And what happened to me, it's like it doesn't affect my life, but it i- it sends up a flare of- 

It's indicative

yeah, of 

what- Yeah ... 

of what's happening. 

with image generators like DALL-E and Stable Diffusion, almost anyone can create new art in a matter of seconds. But the models that make this art don't just do it out of thin air. They've learned to mimic styles, even specific artists, through a process called training, where the models ingest millions, sometimes billions of images scraped from websites all around the web.

Combined with text describing the images, they now have a data set that lets them create almost any type of image from a simple text prompt. It produces some interesting stuff, but the problem is many artists never gave their consent for their art to be used in an image generator like this. So what should artists do?

So we've seen art theft before, but we've never seen it at this level. 

This is Karla Ortiz. She's a concept artist in San Francisco. 

A concept artist is a person who provides the first initial visuals to what something could be in a movie. 

She's designed art for Magic: The Gathering and even in Marvel's Dr.

Strange movies. Last year, she discovered her art had been scraped into an AI image data set. 

Especially my fine art work, and that to me felt really invasive, because I had never given anyone my permission to do that. 

On Midjourney, another popular generator, it's incredibly easy to find posts using Karla's name to generate work that looks incredibly similar to hers, and the same is true for dozens of other artists online.

So earlier this year, Karla and a group of other artists filed a class action lawsuit against Stability AI and a group of other AI image generators. In the meantime, Karla made the decision to take her work off the internet wherever she could. She figured it was the only way to avoid a computer scraping her work into an image data set without her consent, but what if she could still show her work online and keep it from being used to help generate new AI art?

Honestly, we just never had any idea that it was such an impactful problem. 

This is Professor Ben Zhao from the University of Chicago. He and his lab say they've developed a solution. They call it Glaze. 

At its core, Glaze uses the fact that there is this ginormous gap, difference between the way that humans see visual images and how machine learning models see visual images.

Because we see things differently, Glaze can make changes that are almost imperceptible to the human eye, but that dramatically alter how a machine sees it. 

So if you're an artist, you glaze your art, you post it online, you can rest comfortably knowing that a model that's trying to steal your style from that piece will learn a very different style that's incorrect, and when it's trying to mimic you, it will just fail, hopefully spectacularly.

As you can see, the AI artwork generated from a piece with Glaze is similar in content, but not really in style. 

To learn more, we asked the team to show us Glaze 

in action 

Start here. You can see some changes already on the texture on the, the right side one is the original, and this is the Glaze one.

You can see on the face has, some added, changes around the, on the painting. 

So the, the brush strokes are a little blotchier. It looks like there's these kind of, yellow patches of pixels in 

there. 

Yeah, exactly. Yeah. If you had laid these out in front of me and just said, "Tell me what's different," I would be hard-pressed to tell you.

All right. 

The promise of Glaze is exciting for artists, but critics say the AI art generators are taking inspiration the same way a human does, by studying other pieces and learning from them. Crucially, they say, these aren't copies. That's led the companies being sued to ask for the case against them to be dismissed.

Karla says, though, that's not a good comparison. 

I don't see one image, let alone billions of imagery, and instantly, archive it in my mind, and then I'm able to generate exact copies or similar copies in the blink of an eye. 

Some artists have said they'd be willing to use their work with AI image generators, but they say the process should be opt-in, not opt-out.

Stability AI says their new generators will be opt-out going forward. And Adobe says its new image generator, Firefly, has only been trained on images from its stock library. But even there, Adobe contributors say this type of usage was never explicit in their agreement. In the meantime, the internet being the internet, people are already trying to break Glaze and get around it.

I'm under no impression that it's gonna be last forever and protect against every form of sort of attack, but, we're hopeful that it will buy artists some time, and in the meantime, really, I'm hopeful that Glaze will not be the only tool of its kind. 

For Karla, that's the point, to buy artists time for regulation and the public to catch up.

Whenever people, jump in on these and say, "Oh, this is, wow," they need to recognize that it is wow because of, the work that is taken, and all of that work was taken without their consent to use to gen- you know, train these models so that they can generate that stuff that makes people go, "Wow."

You've been using the term generative art before all the venture capitalists flooded money into generative AI, and it took over every aspect of our society a- and our media. "Music that makes itself" is how I, I've heard you describe it. Yes. What is your definition of generative music and generative art, as you've practiced it?

So I think most people have the idea that when somebody makes a piece of music, it exists in their mind before they make it. people imagine Beethoven walking around with whole symphonies playing in his mind. And his job is just to notate it onto paper so that an orchestra can reproduce it.

And I call that the sort of architectural way of making music. That isn't the way most people work. what most people work is they get excited about something which they may have hit upon quite randomly. Yeah. a particular riff or something, and then they start building on top of that. so in a sense, that's a sort of generative process of- 

Yeah

watching something grow, and grow out of the interaction between you and whatever instruments and tools you have a- and the, and the situation that you're in, the moment that you're in. In the early '70s, I felt then that I was moving away from the architectural view of making music towards a sort of gardener's view of making art.

what a gardener does, he doesn't, he doesn't make seeds. He doesn't make flowers. He doesn't describe exactly what he would like his dahlias to be like. He plants some seeds, and they turn into flowers. The flower makes itself, basically. The seed has a set of instructions within it, that will produce dahlias rather than potatoes, or monkeys rather than, poodles.

But beyond that, the individual manifestation is a matter of all the things that are happening at that moment in time, in that place. That meant that when, It became possible to start using computers to make music. I naturally started thinking in that way as well. What can I do now, that I couldn't do before?

You've worked with so many legendary artists that many of us have heard of, U2, Talking Heads, David Bowie, and you have, as with the architecture view of how to create art, you've emphasized collaboration much more than the individual legendary solo genius.

Do you think that your orientation toward collaboration has made you more willing to embrace Technologically infused and even AI-enabled, art creation, whether it's music, film, or otherwise. 

Yeah. I think that's a very good perception. Great ideas are often articulated by one voice but are always made by a community of voices.

So all of us sit on top of a community of some kind. Yeah. And we grow from it, and we feed back into it, and that process is not acknowledged at all in, in the art market or even in the music market. we reward quite disproportionately the people who happen to be the articulators. 

Yeah. 

And we ignore the, all the many people who created the whole infrastructure, the sort of- 

The environment out of which it grew

environment. Yeah. 

Yeah. Yes. And it, which comes back to the garden metaphor, right? Yes. The, that plant doesn't grow in a vacuum. There are other plants. There's the whole soil system. There's the- Yes ... fungal networks underneath. There's the sun. There's the rain. there's the insects and the wildlife and, the effluent from, from- Yeah

other animals that are all feeding that beautiful flower that you see, but it emerges from a larger context. I really love that. Yeah. 

And we really, we... It's very clear to us if you look at flowers- Yeah ... there's no such thing as a self-made flower. and yet we believe, we act as though there is such a thing as a self-made man.

Yeah. 

people who position themselves as, "I did it all myself. I came from nothing, and I made it all on my own." And that is not true of anybody. 

No. th- I think you, you've called it scenius, right? Yeah. Is that the, the, there's a whole scene, and the genius kind of emerges from that, not a, a solo person.

Have I captured that accurately, yeah? 

That's right. Yeah. So just as genius is the word for the kind of creative intelligence of a single person- ... scenius is the word for the creative intelligence of a whole network of people. And I think if it were not for the particular economic system we have, which always rewards disproportionately the people who are already at the top Yeah

gives them even more. if it weren't for that system, I think we would acknowledge that more readily. And in fact, if you l- if you look at, pre-Renaissance, when a lot of artists didn't even sign their work. They just saw themselves as part of all the people who were working on, say, a cathedral Yeah

the guy doing the windows, the person doing the leading on the roof, the architect. These people were often un- unnamed. They were just part of a community making something. 

What does that scenius look like on AI? How do those intersect? 

you could say that AI is a, is the most extreme example of scenius, in that it sucks the, all its information from everywhere and from...

of course, that isn't quite true. It s- sucks it from, mostly from Western people who've written books. that's where most of the material that is in, for instance, ChatGPT comes from. So it's quite a, an unbalanced... If you're looking for the world's wisdom, that's a very particular subset of it that...

But the th- the problem is not that it does that. it's quite... It's what we do in folk music. folk music is not people pretending to be original composers. I've had a stroke of lightning hit my brain, and I've written this wonderful new piece. It's generally people listening to each other and contributing a little bit, adding a little bit to it in their own performance of a known song.

this is absolutely how it works, I think. But, what happens with, again, with the politics and the economics of culture, is that somebody grabs a little area, puts their name to it via copyright laws, I'm one of those people, and then earns the money from that thing. it's unfair, actually.

A-as you have been someone who's, over generations of music and innovation tapped into waves of technological change, witnessed and tapped into tape recorders, multi-tracks, synthesizers, algorithms- How do you see the recent rise of AI comparing to these previous advents in technology? 

I can see from the little acquaintance I have with using AI programs to make music that what you spend nearly all your time doing is trying to stop the system becoming mind-numbingly mediocre.

it will make things for you straight away, no problem at all. You don't even have to give it any prompt, and it will make something, and it will be really quite shitty. your first impression is, "My God, that's amazing." But then it's not actually that good. there was ... I think it was Samuel Johnson said something.

He was at a party, and somebody produced a dog that could walk on its hind legs and everybody said, "Amazing, it's a dog dancing. It's incredible." And he said, they're surprised by the dog is dance- by the fact that the dog is dancing, but it isn't the dance that impresses them." the, the dog just doesn't dance very well.

Yeah. 

And the, the AI doesn't dance very well either. 

The Professor of Rock, Adam Reeder, and Rick Beato, and then some commentary, from Rhett Shull. They're all ostensibly saying the same thing, is that they're spending hundreds of hours, thousands of hours creating this content that is educational in nature and by way of featuring excerpts of that music that their entire video is penalized as a consequence and that the idea of fair use is completely in the hands of the copyright holder.

So that being the record labels and the artists or the publishers or whoever it is that, that owns the rights to the music, it's in their hands as to whether they accept or deny any sort of dispute for the reasons of fair use. And so it creates this asymmetry where they receive all the benefits of the content of, let's say, somebody like a Professor of Rock who has, almost, what, 2 million subs, or a Rick Beato with 5 million plus subs, or fill-in-the-blank creator, but they don't receive any of the benefits of their time and creation.

And I can say as somebody who is creating interview videos that are certainly similar in nature to, those from Professor of Rock and those from Rick Beato and other creators in the space, where I'm having session musicians that played on hit songs recreate their original parts to the original multitracks, and then discussing sort of elements of the session and working with the artist in the development of the song.

We've not had any of those videos, in 30 or more videos that are one to two and a half hours long, those are not monetized either. And to give you a sense of sort of the, the loss on that, I'm looking through a spreadsheet here just off screen of what these videos cost, 'cause I track them from the editing expenses to the videographer expenses to having to rent a studio, especially if we're flying to somebody who maybe doesn't have a home studio, the engineer expense if we have to have an engineer there, rental cars, hotels, food and accommodations for the time of the shoot.

A- and they average 3,700 on the low end and 6,200 on the high end. And so there's quite a range that's in there, and I'm not doing this with an exorbitant budget. these are like the real costs of what it takes to produce a one to two-hour interview and have all those other resources for recording it and capturing the dialogue and then having somebody put it all together and edit it, and then of course getting there and back.

These are real costs. And when you think about the fact that you're putting this all out there on speculation, or I guess at this point it's not even really speculation, you put it out there and 100% of the revenue generated from the content that's created all goes to the record label. That is a pretty major asymmetry in terms of they, have their fingers on the scales and we don't get anything for it.

And I know that The, th- there's been a lot talked about that there should be some sort of solution. I haven't yet heard at the time making this video of any actionable solution, and I was considering this as, I was speaking to an attorney today about, Klons centaurs and this lawsuit that's happening right now in the pedal world.

And if you don't know, I'm-- my real job is that I manufacture guitar pedals under the name Vertex Effects, and that's what we primarily are even though on YouTube, that seems to be a fraction of the content that we create, and a lot of it is interview related content. A- and, we were doing a, a podcast about the sort of the goings on of, copyright and trademark related stuff.

And at the end of the conversation, I happened to bring this up about k- some of the things that are going on around fair use. And she had some really interesting perspectives about the, the money side of things a- and how that relates to the legal definition. and i- it's curious because her perspective was, as an attorney who's tried cases i- in similar fields, was that when you're saying fair use, you also Cannot be making money.

So not only is the expectation that the label doesn't make money, but if it's truly fair use and you're using it in your videos, then you also cannot be making money. So in other words, e- both parties make no money. There's no monetization on either side. And I thought that was an interesting caveat to the narrative that we've heard, and I don't know that maybe she doesn't have all the information, or maybe I explained it improperly, which led her to the conclusion that she, delivered to me.

But it sounded like from hearing Rick's, conversation about this, is that there was a way to get these claims overturned. And I don't know if he was talking about blocked claims or whether he was talking about copyright claims, which are just, the money now goes to the label instead of going to Rick.

And so I'm curious about a clarification on that point. a- but I'm also clear, or I'm also curious about what is the legal argument then that is being made, if it is in fact that he's getting copyright claims overturned, and he is now getting revenue sent back to him from the videos and whatever they're generating.

What is that claim? Because it, it seems like that would be really important information if our commitment as a community is for people to be able to fight with the same equipment, the sa- the s- the same weapons against the record labels, that we would need to know how it is that we're supposed to strategize in order to win those fights.

And so I'm hoping that if anything comes out of this between the work that Adam Reeder is doing in sort of escalating, this with the record labels and also Rick, that there's some mechanism with which they can share it with smaller creators so that they too can benefit from being able to monetize their content.

from Walt Disney's very, very beginnings because Mickey Mouse had global appeal, right? it was an, he was an international star. people loved him all over the world. in the '40s, Walt Disney took two separate, quote-unquote, "goodwill trips" to Latin America, as a way of shoring up, the Western Hemisphere in the face of World War II and production.

he was also then, after the war and after a really bitter animator strike, as he moved from, reflexive conservative to far-right wing nut, Walt Disney then, operated. he was He is maybe personally responsible for the HUAC hearings, the House Un-American Activities Committee hearings that were so famous, where, Hollywood filmmakers and screenwriters were forced to either denounce other people or plead the Fifth and be blacklisted.

Walt Disney wrote a bunch of letters to the State Department, to-- excuse me, to HUAC, asking them to come to Hollywood 'cause it was full of communists. he was doing that during World War II. They didn't really listen. They had other things on their mind, namely the two-front war.

but, but then after the war, as the Cold War ri- winds up, he starts writing the letters again, and then they show up in Hollywood. So he's part of HUAC. he's part of the Red Scare. he also, did special reporting for the FBI. he-- I know it makes you sound, Now I sound like the wingnut, but, he-- Disney planes were donated to Barry Goldwater's campaign, presidential campaign.

Barry Goldwater, the far, far right. The last time before Trump, we had a basically fascist, presidential candidate, s- in serious contention. in that way, it was a very direct relationship with the state. and then again in the s- in the '70s and then again in the '90s, when Mickey Mouse was coming up for copyright expiration, Disney lobbyists very explicitly pushed a bill that would extend copyright, and they could have argued for, with the amount of power they had, which was b- shaping legislation, right?

they were shaping legislation in the federal government. they could have probably just argued for a, a particular extension for Mickey Mouse, right? They probably could have won something like that. but that would've been bad for their image. It would've made them look like greedy capitalists.

So instead, they just pushed for a general extension of the copyright, both times. now the copyright only expires, it expires 75 years after your death, or 95 years in the case of a corporate, for-hire work. I believe those are the numbers. So now basically they destroyed the public domain.

So anything that has made, since 1930, 1920- 26, 1926 or 1931, depending on whether the person died or not, is under copyright still. which means that Imagine if our culture could only ever riff on Golden Age jazz and The Great Gatsby, right? if nothing since then was like... None of it's in the public domain.

All of it is privatized still. and that's, that's pretty, that's a wild thing to do for a company that is associated with the sort of happy magic childhood, stuff, 

And they must be really good at it because we don't necess- we turn a blind eye to that entire history on a regular basis.

We're speaking with writer, agitator, author of The Extended Universe: How Disney Killed the Movies and Took Over the World, Vicki Ostweiler. you can find Vicki on Blue Sky at vickiacab and on Letterboxd at nocopszone. So you also point out that in 2019, the Disney Corporation was at the heights of cultural power.

It had earned $3.74 billion in the box office alone, 33% of the entire market, and over the past five years, or previous five years, had, averaged 20% of all US box office income. Its Russian arm, The Walt Disney Company CIS, had just released the highest grossing Russian language movie of all time, called The Last Knight.

Subsidiary Walt Disney Company India had done the same in Bollywood with the movie Dangal in 2016. And The Walt Disney Company Latin America had produced the year's highest, grossing Spanish language film in Argentina for three years running. But this was just icing on the magical cake. Billions of dollars of icing to be sure, but icing.

Does their image, does the Disney image prevail wherever Disney goes? Does it matter what the culture is, or do they adapt to that culture? Or do they impose their own culture on them? is Disney popular even when the, where the US is not? 

in short, yes. I think there was, for a long time, especially in the Cold War, and now I don't, I really don't know who I'm quoting here, but there, the, there was a sort of common phrase that the best ambassadors for the United States are Coca-Cola and Mickey Mouse, right?

that sort of, and Levi's jeans I think were the other really popular product. part of American imperialism in the 20th century, that was that was effective in places they weren't, directly having boots on the ground. In fact, where they directly had boots on the ground it was often less effective because you could see the blunt end of the stick, was, these sort of, these products that were You know, better isn't the word, but were of higher budget, a certain kind of higher quality, more consistency, right?

or more affordable, or they were cheaper, they were more plentiful, right? this, this sort of, Mickey Mouse was part of that, right? Mickey Mouse was this image, this global image that was extremely powerful of, American goodwill. and it goes back to World War II, he, it's not wrong that in the '30s, Mickey Mouse was a g- was already a global symbol.

Disney World, I don't think, I don't know if it's still true because, again, with the border stuff that Trump has been doing, I don't know. it's significantly damaged Disney World's numbers, but, Disney World is the number one tourist destination in the world by, by millions of attendees, and has been for decades.

I think, there's there-- Disney World, Europe, France, it famously failed, but in, it-- there's Disney Worlds all over the globe, that are effective and popular. and the movies are too. they, it waxes and wanes, like as anything.

it is, it is like a... Fashion and popularity are, ephemeral things. but, but Mickey Mouse and Disney in general has remained incredibly constant. and it is precisely the goodwill that Disney has as an image of childhood, as an image of itself, that has allowed it to do some of the things you're describing in that passage, which is so in the, that movie, The Last Knight, which I write a chapter about in the book, the Russian film.

they basically, tell a f- a folk story. it's pr- it's a pretty bad movie, honestly. but, and it, but it spawned two sequels. It's a whole franchise. they tell this movie, this story about Baba Yaga and Koschei, who are, two of the most important figures in, Slavic folklore, right?

and the Frog Princess is also in there. and, Bogatyr for folks who know their Slavic folklore and are also listening right now. anyway, and those, those characters all fall under Disney copyright. But because it's sort of a Disney movie and because suddenly like Disney is paying attention to these like, because wow, Disney's making a movie all about our folk stories, right?

they're making a movie for us about us. Like that is a structure that functions because of Disney's reputation, globally as, you know- Both, both American-ness, but also childhood joy, pleasure, nostalgia, right? And that, that is global. with, with... it ebbs and flows.

but it is certainly a, a global force and has been remarkably consistent in a way that other corporations, have failed to. have failed to be, consistent for that long. and, I think that's some combination of its canny, management of IP and its association with childhood, right?

you get them young, and then they're a customer for life 

Now, Section C, THE DISNEY PLAYBOOK

TJ Detweiler returns to school after a week-long absence to learn that the playground has adopted a form of currency, monster stickers, AKA mon stickers. If you want to do anything on the playground, you've gotta pay with mon stickers. 

Mean they're like money? Only better. Money doesn't feature blood-sucking ghouls from beyond the grave.

Yeah, it's the chicken finger episode from Community, just with stickers. TJ quickly learns that since he doesn't have any stickers, he can't do anything that he used to be able to do for free. Throughout the rest of the episode, TJ moves from the very bottom of this new economic system all the way to the top.

When TJ finds out mon stickers are sold out everywhere, leaving him destitute, he gives a speech that basically summarizes the American dream, vowing to work really hard, get to the top, and be free

This will have to do for now. I may be down on my luck, but I'm not out. I'll be back. I'll work, sweat, and toil like no kid before me. And one day, as I play and breathe, I'll have enough stickers to buy back my hat, my dignity, and maybe even a ball 

We then get a montage of TJ working various jobs for a small sticker wage.

He quickly tires of this, though, since he's not able to save up any stickers as part of the working class. 

Man, I've been busting my hump for days, and I'm still just a working class schmo living sticker to sticker. There's gotta be a better way. Wait a minute. Maybe there is. 

Doing the work himself, creating actual value, TJ is getting nowhere.

So what he's got to do to succeed under capitalism is find a way to convince other people to do the work for him. He does this by buying a stake in a small business. This guy charges people to enter the school, but he's gotta stand there all day to collect. TJ offers to invest 25 stickers up front, do all of the work, and in exchange, get 50% of the earnings.

Then he hires someone else to do the work for much less than he'll earn from that 50%. 

Hey, kid. Wanna make a few extra stickers? sure. I'll pay you two stickers a day to work the door for me. How's that sound? Two stickers just to stand there all day? Deal 

So what just happened here? TJ made an arrangement where he's adding no additional value to the system.

There was a guy watching the door before he arrived, and there's a guy watching it afterwards. Instead, he has extracted value for himself, and he's exploited this poor guy who's not getting paid what he's worth. TJ continues to do this around the playground. After making a sizable amount of money, he uses his position to secure a monopoly on a valuable resource, the balls of the playground.

300 stickers for all the balls. This continues until TJ is exponentially wealthier than anyone else. 

Excuse me, sir, but according to my calculations, you now control four of every five Mon stickers at Third Street School. Excellent. Now we just need to figure out a way to get the rest. 

As the top dog on the playground, he's able to abuse his position to charge for things he really has no right to charge for, like literally standing around.

Eventually, TJ's actions impoverish the rest of the students, and economic activity has essentially stalled.

TJ, the kids can't afford to do anything as it is. Look around. They don't have stickers for balls. They don't have stickers to play on Old Rusty. They can't even sit on the grass. Everyone either works for you or just stands around and does nothing. Good point. Gus, start charging kids for standing around.

We'll call it a loitering fee. You can't charge kids just to stand around. Watch me. 

With his newfound power, TJ becomes increasingly megalomaniacal and cruel. 

But I suppose I could part with one sticker. One sticker? Take it or leave it, cootie head. I'm a busy man. 

But just as quickly as he rises, he falls.

His friends turn against him and introduce a new collectible to the playground, rendering TJ's fortune worthless. 

Two, please. Two Mon stickers, right? 

Afraid not. We're operating on Lick-and-Stick Alien standard now. 

Alien stickers? But no, it can't be. I'm, I'm-

They then get him to sign a contract preventing him from owning 10% of any one market. But the episode ends on a foreboding note since TJ immediately reverts to old habits. 

Welcome back, TJ. Now let's go play. I would love to, guys, but I don't have a licking sticker to my name. I gotta get to work. Oh, good.

King Bob looks sweaty Now, I love this episode. I think it's really funny. But let's acknowledge first that it is a very simplified version of economics and capitalism. Mon stickers are both a commodity and a currency in this story. There are no banks or a stock market, and since mon stickers are sold out of Kelso's, there's no way for new money to enter the system.

There are a finite amount of stickers on the playground. So yeah, this is a 10-minute-long cartoon, and the purpose of satire isn't to accurately demonstrate all the nuances of its target, but to exaggerate its flaws in ways that reveal a deeper truth. And there's so much here that rings true, like the idea that it's basically impossible to get ahead by working for a wage.

That you can manipulate the system so that you're not creating any additional value, but extracting it. That monopolies allow businesses to gouge their customers. That making the rich richer does not trickle down to the rest of society, since TJ is just hoarding his wealth. That the government, i.e. King Bob, never intervenes because they benefit from the system.

And really, at its core, the episode is just trying to show how money can corrupt a good person. What's most interesting to me about this episode, though, is this: it starts out by very clearly establishing the rules of the society. Even though it's an unjust system by charging for things like water, the rules are clear.

Everything costs stickers now. TJ then begins to game the system, but he's still playing by the rules. But then once he's cornered the market, he can just make up whatever rules he likes. He has no right to charge people for standing around, but no one else is powerful enough to stop him. Earlier this year, Disney bought 20th Century Fox, bringing the number of major Hollywood studios from only six to just five.

And Disney dwarfs the competition, capturing roughly 40% of the box office in both 2018 and 2019. Their closest competitor, Warner Media, has less than half of that. This is a problem. Even if you have a lot of nostalgia for Disney, it is a problem. Here's why. One, there are now fewer gatekeepers in charge of which films get made.

This could lead to further homogenization of the films that are released, as riskier films with different sensibilities are prevented from being made. Two, there are fewer movies in total. Disney didn't just buy Fox, they kinda dismantled them. They canceled more than 200 of Fox's films, and will end up laying off about 3,000 people.

The film industry is literally smaller as a result of that purchase. Three, Disney can stiff-arm its competitors.

But I suppose I could part with one sticker. One sticker? Take it or leave it, cootie-head. I'm a busy 

man. Earlier this year, negotiations between Disney and Sony broke down over the Spider-Man IP, and for a while it was reported that Spider-Man would no longer appear in Disney's Marvel films The deal was eventually salvaged, resulting in Disney getting 25% of the revenue from future Spider-Man movies, up from the 10% that they had before the negotiation.

The fact that fan outrage was directed primarily at Sony, since people wanted to see the character interact with Disney's Avengers, may have been decisive in renewing the deal. Four, Disney can stiff-arm theaters. Once upon a time, a law was passed preventing movie studios from owning movie theaters. The result was an explosion of independent productions, a very good thing.

Recently, Disney has shown a willingness to circumvent the spirit of that law, such as the terms they gave to theaters for showing The Last Jedi. Disney wanted theaters to agree to show the film for four weeks in their biggest auditorium. That's a bad deal for theaters since, after a few weeks, it would be more profitable to show a newer film.

But since Star Wars is such a huge property, many theaters can't afford to not show it at all. So the more powerful Disney becomes, the more they're able to dictate terms to theaters, meaning there are fewer screens for everyone else. 

Gus, start charging kids for standing around. We'll call it a loitering fee.

You can't charge kids just to stand around. Watch me. 

Five, the Department of Justice wants to get rid of that law I just mentioned, which could lead to Disney-owned theaters that block other studios from even having their films screened. Six, Disney can profit using artificial scarcity. For decades, Disney has used this tactic.

Films would be put in the vault for years, where they were unavailable for purchase. This would inflate sales when the movie is inevitably re-released. Disney recently stopped using the vault, at least for its own original movies, but they can easily reimagine the strategy for the streaming era. And since buying Fox, they've prevented theaters from playing old Fox movies, effectively putting them in the vault.

that was the hook that I would use to tell people when I was explaining why I was writing a book about Disney movies. be like, okay." And so the thing I would say is, the... it's starting out to answer two questions. Why are all superhero movies the same?

And why did Disney and the rest of Hollywood send lobbyists to stop the Biden administration from sharing the coronavirus vaccine with the Third World? And why do those questions have the same answer, which is intellectual property management?" because I think if you think about a movie company, if you know anything about movies, you instinctively understand that a global pandemic is a disaster for movies, right?

The movie theaters were all closed, right? And obviously, like filming on set, like if they even get back to being able to aggregate to film in aggregate, every single day on set is so expensive. The way filming works, it's so intense, and so like having to protect against an outbreak is really expensive, and one star getting COVID could bankrupt an entire movie, right?

So it just like instinctually makes sense. Like, why would... why wouldn't they be super invested in making COVID end as quickly as possible? It's 'cause Disney's not a movie company. Disney is an IP protection company. In 2018, which was the year that Disney had the largest monopolistic share of the movie industry of any year I looked at, I looked at like sort of the '30s as well, because that was when monopolies got really intense.

So in 2018, when they had the best year any movie company had ever or will ever have in the history of movies, that was 16% of their total revenue. it was not even a fifth of their business. So movies are just really expensive and profitable advertisements for the rest of their business empire.

Merchandising, education, theme parks obviously, cruise ships. They have venture capital firm. the GoPro is a Disney product. They... there's less money in it now, but music and books was also like a big sideline for them. There's just like this sort of massive corporation, and through, across the entire corporation, characters are the lifeblood that brings money in.

So when they bought Marvel in, also in 20- was that 2013, 2012? It's in the book, the right date. I'm not always great at the numbers like that. They said, and I actually wrote down the quote so that it wouldn't, I wouldn't get it right, that, 'cause it's so banal that it's, hard to remember it.

They described Marvel... Now, again, they just spent $4 billion on this company. They described Marvel as a character franchise company. That's what they were buying. They were buying characters. So if we think about, what does Meta own, or any of the software companies, the, the social media companies, they don't own the servers usually that run...

Most of them just give it to Amazon, right? That's how Amazon's in business, is they hold all the other we- websites. So what they own is the designs, the code, and the sort of the intellectual property that is, held by their engineers and their designers. And that code, theoretically, you could just highlight and hit copy/paste on it, right?

There's no... Without the state backing up that right of intellectual property, there is no way a software company makes sense and exists. Similarly, it is quite easy for anyone could theoret- who could make a movie, could theoretically make a movie about Mickey, Mickey Mouse is now in the public domain, but about, Han Solo or whatever.

And lots of people do that with, fan fiction. and it is the threat of state violence that keeps that valuable, and is necessary. So When they sued... And again, they sent five lobbyists, the movie industry. Pharma sent 100 to stop the b- the sharing of the coronavirus vaccine to extend vaccine apartheid, right?

in, in the name of COVID, they, defended, they were defending COVID against its enemies, the vaccine. and the reason that they do that is because there is a probably wrongheaded but strategic legal corporate belief that any threat to intellectual property, even going through this, legal process that it was going through that's actually quite mild and was written into the law about it, any threat like that is a total snowball threat to everything.

And that also explains the extreme legal attacks on what seem to us, and indeed are, very small copyright violations. 

So people, like, pirating videotapes or whatever getting raided by the FBI. 

Yes, exactly. yeah. Or, or, yeah, especially in the 2000s, there was a lot of that. And folks, have effectively, been stopped from pirating on their computers because there are those automated emails which I imagine everyone in here has probably received at one point in their life because you downloaded, an episode of True Blood season five or whatever, and it, you'd upload it for a second, and your internet provider immediately emailed you saying that they were gonna cut off your access to the internet, God, that's an outdated reference. Why did that come into my head? Jesus Christ, True Blood. What the . I should probably rewatch that. It's been, like, a decade, and it's probably awful. It's probably awful, right? I don't know. Sookie Stackhouse, is that her name? In 

one of 

the best ways though. It's awful, but yeah.

okay. All right. you get those, those warnings, and if you've ever posted anything to YouTube or if you know about how, social media video and audio posting works, there are, like, robot lawyers crawling them constantly algorithmically, nuking stuff from orbit that they just claim is a copyright infringement, and the policy of the platform is to delete it, demonetize it and the channel, and it's up to you, the user, to prove that you haven't violated copyright through arcane processes that are totally determined by the corporate power, right?

There's this massive apparatus, to wipe out any pseudo threat and to, demonstrate extreme power because, precisely because it's all built ultimately, on cop with stick, that's, that's the only thing that makes it valuable. 

Buc-ee's often seems to be trademark bullying smaller businesses, which are forced to settle rather than fight Buc-ee's claims because lawyers are expensive and lawsuits can drag on for years.

But some of the businesses in question, like the Barky's Dog Park and Coffee Shop, have even folded in the face of these lawsuits. And that's why John Oliver decided to step in and challenge Buc-ee's to pick on someone its own size, Last Week Tonight, and its parent company, HBO, which is a subsidiary of an even bigger company, Warner Brothers Discovery.

And for his segment, John deliberately created a similar logo and name, and he's openly challenged Buc-ee's to sue him. But if Buc-ee's did that, could they actually win? first, let's look at the logos. Both feature a side-facing cartoon rodent inside a yellow circle. John is using a similar name and font.

This would almost certainly satisfy the first lap test factor. But the market and marketing channel overlap are two other important lap factors. But based on his prior claims against underwear stores, liquor stores, and dog parks, Buc-ee's doesn't seem to think it needs a lot in those areas to justify its lawsuit.

So Buc-ee's probably wouldn't be dissuaded by the fact that merch, apparel specifically, is the only obvious market overlap between Buc-ee's and Buck Off that they have in common. But the lap factor that's most negative for John would be intent. John has made his intent pretty clear here.

If any prominent gas station chain out there has an issue with our new logo and products, and wants to get lawyers involved, then you know what? Bring it the on. 

So it looks like John has set up a pretty strong case for Buc-ee's, but he actually has one major advantage that none of Buc-ee's other opponents had, and that's parody.

The First Amendment does not defeat every trademark claim, but it does make freedom of expression a factor. And that's important because trademarks show up in music, art, movies, and parody. 

Mr. Potato Head. He's sarcastic and moody at times. 

Ow! If every joke about a famous brand could be shut down with a trademark lawsuit, trademarks would stop being consumer protection and start being a censorship tool.

And one of the biggest protections comes from what's known as the Rogers Test, named after a 1989 case in which actress Ginger Rogers sued over Federico Fellini's film Ginger and Fred. Notice the case wasn't about parody at all, it was about the title of an expressive work. The Second Circuit recognized that courts needed a way to balance trademark rights against the First Amendment, so it created a threshold rule.

If someone is using a trademark as part of an expressive work, the lawsuit gets dismissed unless the plaintiff can show either that the use has no artistic relevance whatsoever, or that it explicitly misleads consumers into believing the trademark owner created or endorsed the work. That's a remarkably speech protective rule.

Instead of spending years litigating whether consumers might be confused, a court can end the case at the starting line, and that's one of the reasons why you often see movies or TV shows or books with exactly the same title. Which brings us to a case that the '90s kids in the audience can really appreciate, Mattel versus MCA Records, better known as the Barbie Girl case.

I'm a Barbie girl, in the Barbie world. 

When Aqua released the eponymous song, Mattel sued for trademark infringement. Now disgraced jurist Alex Kozinski, and boy, at some point we'll have to talk about that story, applied the Rogers test, dismissed Mattel's claims, and closed his opinion with one of the great lines of trademark law, "The parties are advised to chill."

But Rogers isn't a free pass for every joke, and the focus isn't on whether the work is expressive or whether it's sold for money. Plenty of expressive works aren't commercial products. The question is how the trademark is being used. Is it part of the joke, or is it doing the job of a trademark, acting as the branding that tells the consumers who made the thing?

Put Coca-Cola's logo in a movie scene or write a satirical song about Barbie, and you're using the mark to express an idea. Put a parody of someone else's trademark on the label of a product that you're selling as your own brand, and now you're using the mark as a source identifier. And that's the exact function the trademark law exists to regulate.

Once you cross that line, you don't get to skip the ordinary trademark analysis. But at the same time, if a trademark isn't recognizable, then the parody doesn't work, so there has to be some similarity there, which is precisely what happened to a dog toy company called Bad Spaniels. Bad Spaniels was a spoof of Jack Daniels, and the toy mimicked the iconic shape and color of the whiskey bottle and copied Jack Daniels' distinctive text styling, except where the label reads, "40% alcohol by volume," the toy reads, "43% poo by volume," and underneath Bad Spaniels it added, "100% smelly."

Jack Daniels could not take a joke, and apparently affronted by both the mimicry and the potty humor, sued. A district court ruled for Jack Daniels after trial, but the Ninth Circuit Court of Appeals reversed, finding that the Bad Spaniels toy was an expressive work, spoof basically, and that was entitled to First Amendment protection.

But Jack Daniels petitioned the Supreme Court, and the Court took the case. Now, VIP Products, the maker of Bad Spaniels, pointed to Rogers and argued that the toy is a joke protected by the First Amendment, but the Supreme Court didn't buy it. It vacated the Ninth Circuit's decision and held that Rogers didn't apply because VIP wasn't just referencing Jack Daniels, it was using the mark to brand its own product.

Justice Kagan wrote, quote, "When an alleged infringer uses a trademark in a way that the Lanham Act most cares about, as a designation of source for the infringer's own goods, the infringement claim receives no special First Amendment protection." And that's exactly what VIP had done. It used the Jack Daniels bottle shape, text, and overall look to build and identify Bad Spaniels.

And however funny it was, and your mileage may vary, the Jack Daniels trademark was being used to sell VIP's products. So the Supreme Court sent the case back down, and on remand, the district court ruled against Jack Daniels on trademark confusion but for Jack Daniels on dilution. Basically, the court agreed that a company is entitled not to be associated with dog poo.

VIP appealed the dilution ruling, and in May of 2026, the Ninth Circuit heard argument on a very specific question: Is anything about Jack Daniels besides the name itself famous enough to support a tarnishment claim? Now, one last thing worth being clear about, the Supreme Court did not eliminate protection for parody or expression.

It said those considerations belong inside the ordinary trademark analysis rather than getting a defendant out of the case before the analysis begins. But this has sent shock waves through the market of anyone who makes a parody product. And it's not clear where anyone's gonna land on this. But where does this leave John Oliver and the Buck Off brand?

under the Bad Spaniels decision, John Oliver probably can't rely on the Rogers Test as a shortcut to dismiss the lawsuit, because the Buck Off brand isn't just a joke, it's also being used to sell merch. And in trademark terms then, it's functioning as a brand identifier, so a court would probably analyze the case under ordinary trademark law.

And the court would use the Latin factors to determine if there was a likelihood of consumer confusion. But the fact that Buck Off was introduced after a lengthy segment explaining the parody would probably help John's case, because it helps potential consumers understand that Buck Off is not actually a Buc-ee's product.

So I'm sorry to tell you that in the future you may no longer be able to watch parody pornography. You may have to watch only pornography that is completely original IP. But at least we'll find jobs for all those writers who were put out of work by AI. And the court may also look at whether the Buck Off brand was potentially diluting Buc-ee's trademark or could hurt Buc-ee's reputation.

That might get a little dicey for John, since Buck Off is meant to be offensive, but the fact that the offensiveness of Buck Off is meant to critique Buc-ee's may help John, because it's intermingled with the analysis that would be an effort to balance the importance of parody, critique, and expression.

Which would likely make it a very interesting case. So could Buc-ee's sue? Definitely. But should Buc-ee's bring this case? that is a different question, and you might wanna check in with Bricks and Minifigs to see how their lawsuit is going, and see if, even if they win, if they actually accomplish any of the goals that they set out to achieve.

Now to be fair to Buc-ee's, trademark law puts real pressure on companies to enforce their trademark. Unlike copyright or patent, a trademark can actually weaken if you don't protect it, and in some sense trademark holders are required to police their trademarks or risk losing them. but the fear of that is usually overblown.

But you may have watched that play out earlier this year when Patagonia sued the climate activist and drag performer Pattiegonia, and the internet rushed to judgment. How dare this progressive brand punch down at a drag queen who loves the environment? But the details were complicated. Patagonia only sued after Pattiegonia filed a trademark application covering clothing and marketing, the same categories that Patagonia sells a lot of their merchandise in.

And it also asked for $1 in damages, what we call nominal damages. So it looks like Patagonia was basically just trying to create a legal record that it objected to the use of the trademark, police it, or lose it. But the contrast between Patagonia and Buc-ee's is also notable. Patagonia moved against a filed trademark application in its own product category for a dollar.

Buc-ee's sends three-page letters to underwear startups over squirrels, and asks for damages, profits, and legal fees. And part of the point that John was making is that if Buc-ee's continues this trend, it could end up costing the company a lot of goodwill. Being criticized in a segment on Last Week Tonight generally isn't something most companies strive for, and going after small businesses or venerable and well-loved local chains Also was not a good look.

But there's a difference between a legal court and the court of public opinion. A company can win a trial, but still lose public support. And when you're selling a brand that's based on friendliness and wholesomeness, public support matters. So this seems like a losing move for Buc-ee's PR-wise, but I guess it's also easier to go after small town mom-and-pop stores than Warner Brothers Discovery and John Oliver.

That being said, after John Oliver's segment, Buc-ee's showed no signs of letting up. Instead, it sued another Ohio small business, Beaver's Mini Mart, which had been doing business in Ohio for a decade before Buc-ee's showed up. Oh, and Beaver's Mini Mart, it's in a town called Beaver Creek, where pretty much everything is beaver branded.

And within about two days, Beaver Creek answered. A bakery called Cake, Hope and Love swapped its logo for a beaver. So did Bellbrook Candle Company. This was a joke for the day in solidarity, and they were joining a town that had already had plenty of beaver references. Beavercreek Pizza Dive had a cartoon beaver.

Beaverview Bowl, the local bowling alley, has a cartoon beaver. Feed the Creek, a nonprofit food pantry, also has a cartoon beaver. So remember, you can win or lose a legal case, but the Streisand effect is undefeated 

I think Disney in recent years has had this sort of gloss of progressivism, and I, maybe in particular as a result of the conflict in Florida with Ron DeSantis.

I think a lot of people have this idea that Disney is somehow on the like liberal progressive side of things. but in your book, you talk about the extremely and rabidly right-wing politics at the kind of origin point in terms of anti-communism and labor busting, and things like that.

I'm wondering if you could talk just a little bit about what the political culture of the Disney Corporation, maybe not just right now, but historically has been. 

And like speaking of things that are ours, like part of the reason it has that reputation is because, for example, a lot of queers in Florida have historically gone to work at Disney World.

And so it is like Orlando is actually a gay city in some ways, as a result. But if you work anywhere on Disney property, you have to sign NDAs saying you can't talk about anything. So anything we know about labor practices in the Disney Corporation since 1988 is technically hearsay, 'cause no one is allowed to talk about it because they would be violating an NDA, right?

that, I think that's how you can see that sort of progressive gloss, right? There's all these, there's all these gays there, but their literal experience is owned by Disney as intellectual property. In the beginning, this was, the, it was much more open that they were far right.

Disney himself, Walt, he was right wing, he was conservative. He's understood to be a conservative guy. In the '30s, across the '30s, he was anti New Deal. but there was actually a moment where he got, he also got glossed because the movie The Three Little Pigs, which like if y'all know that cartoon from '36, it has a song about the big bad wolf.

That comes out at the height of the Depression, and a lot of people read it at the time as this sort of like myth of hardworking everyman against the sort of bad, big, bad capitalist or the big bad wolf. One thing we don't know about that is that, in the original version, the big bad wolf, has a scene where he dresses up as a, a Jewish peddler with a big Jewish nose and a yarmulka and a bunch of gold coins that he plays with.

So the progressivism of that could certainly be... You could question that. But even without that, it's still a myth about like Protestant work ethic versus the lazy guy who like makes the straw house, whatever. Anyway, then there's a big animator strike in Disney because Disney for a while, Disney has always had the lowest wages in the industry, even back to its very beginning, it's extremely low waged.

It's very similar to a startup in the '20s and '30s, like this sort of charismatic young CEO who's like on the floor with you and, like every- you're reinventing the technology and like everyone works in this really like chaotic situation that's like fun and creative. but actually you're like getting exploited like up the

you're like totally being destroyed like, and you have the worst wages in the industry, but you don't recognize it. So anyways, the movie industry unionizes. There's a big strike at Disney. One of the most vicious strikes in the history of Hollywood. there's like physical brawls. At one point, pro-studio animators pour gasoline in a circle around the picket, and like they have all these baseball bats and they're threatening to light the picketers on fire.

At one point, Walt Disney like tries to throw down with Art Babbitt, who's like the head animator and artist, and has to be physically restrained by security guards to stop from beating the out of this guy like in the front of the studio. It's this really nasty, violent strike. And after that All the biographers I read, from the most friendly to Disney to the least, all of them agree that the strike is when he stopped.

He lost all interest in movies. He stopped. he was already more mostly a figurehead by 1941 when the strike happens. but after that, he basically st- loses all interest in the movie side of the business. Only a very few times does he really even participate. And he spends a lot of his time when he's not designing Disneyland and Disney World and Epcot.

And he, in '41, sends a letter to the House Un-American Activities Committee, the HUAC Committee, which is the group that did the Red Scare and the McCarthy hearings against Hollywood. He sends a letter saying, "Hollywood is full of communists," and he identifies Herb Sorrell, one of his animators, and Art Babbitt, the other animator, as leading communists in Hollywood.

Now, Babbitt is, at best a soft Dem. Sorrell was a member of the Communist Party at one point, but, was not an active member, right? there were a lot of, there were a lot of those. Anyway, whatever. And it's 1941. The US State Department has other things to do. world, Pearl Harbor. they're not that interested.

Then, after World War II, as the Cold War starts to kick off, he sends the letter again, and he's like, "You gotta come here." five years later, those guys are long gone from Disney. He's like, "You gotta come. Hollywood's full of communists." And they're like, "You're right," and they show up. like- there are other factors, but like arguably, Walt Disney is like, not saying Hollywood, one of the most responsible for the most famous moment of McCarthyism that we have, which is people being forced in front of Congress to like name names or be blacklisted from Hollywood.

Walt was one of the stones that put that in motion, right? He campaigned for Barry Goldwater, who you may know, his... People didn't really know him until recently when he's been compared to Trump a lot. Ultra-racist, presidential candidate, probably the most openly fascistic presidential candidate since Tru- but until Trump that we had, who got close, who was like a, on a ticket.

Barry Goldwater had free use of Disney airplanes. Disney went to cultural events and wrote reports for the FBI and was an FBI special agent, like policing all of these sort of just like really milk toast liberal political events, right? At one point, he takes the stand during the anti-communist hearings and accuses the League of Women Voters of being a communist front, and it's actually because he meant to accuse the League of Women Shoppers, an even less political organization, who had organized a boycott of one of his cartoons like 10 years previously.

This is a very bitter, nasty man, right? Another, one more example and then we'll move on because it's all in the book. But 1937, when Leni Riefenstahl, who you may know as the director of Triumph of the Will or Olympia, the two most famous pieces of Nazi propaganda, she is going to come to Hollywood and meet folks, as an artist, from the Nazi regime.

A week before... This is '38, sorry. A week before she arrives, the Nazis unleash, Kristallnacht, the Night of Broken Glass, largely seen as the beginning of the Holocaust, right? So Hollywood says, "Do not talk to Leni Riefenstahl. Don't bring her in. she's gonna come. She's, don't talk to her."

There's an open letter in The Hollywood Reporter, and the owners of the studios, who are themselves conservative, union-busting, anti-communists, are also, a lot of them are Jewish, so they're like, "Absolutely not. Don't talk to this person." Part of the reason Walt Disney is so popular and is the image of America is 'cause he's the one Protestant, he's the Christian, he's the goy, in Hollywood.

And Leni Riefenstahl comes into his studio, and he gives her a tour of the studio, and he shows her Fantasia, which he's working on, and she offers to send him a, a work print of Olympia so he can watch it. And again, this is the '30s, so in order to watch it, you need a projectionist. And Walt demurs because the projectionists were unionized, so if they were to show it, everyone would know he had been visited by the Nazi w- a week after Kristallnacht.

Months later, when he gets found out, he claims he didn't know who she was. 

And just to throw in too, there was the politics. Like you had a whole chapter on Song of the South. 

Yeah. 

Yeah. But yeah. 

Yeah, the, I think like Part of what's so frustrating about this sort of gloss that, 'cause Pixar basically had this reputation- has this reputation as progressive, which it also isn't, but is, nominally more so than Disney.

But in the '90s, there was these series of controversies around Aladdin, Mulan, and Pocahontas, all of which, I don't know if y'all have watched recently, extremely racist and difficult to watch. Peter Pan, extremely racist and difficult to watch. But there's the Song of the ... I have a whole chapter about Song of the South, which is a movie you've probably seen part of without knowing it, because the song Zip-a-Dee-Doo-Dah comes from it, and the ride Splash Mountain comes from it.

But you can't actually officially see Song of the South anymore, 'cause it's a pro-slavery fantasy about how good life is on the plantation for Black folks. They claim it's technically in during Reconstruction, which is completely flimsy. It's never mentioned in the movie, and that's just enough to let you know they knew it was wrong what they were doing and it makes it worse, not better.

Anyway, so yeah. that movie is literally a narrative about how- Black folk stories get stolen and turned into a happy white family. And it was re-released most recently in 1986. So Disney didn't even stop showing this ultra-racist... this, this movie was boycotted at the time by the NAACP. there were, they were like...

Whatever. I, you can get into the details on that, but like there's massive protests against it. It's an extremely racist moment in culture, and they were still doing it as, as recently as '86, right? This is not a progressively run institution. What has happened is in the interim, so many other companies look just like them, and the right has gotten so unhinged that they've given up on, one of their great stalwarts, Disney.

Largely because Ron DeSantis is struggling over sovereignty because there's a territory in Florida around... Sorry that I sound like such a wing nut when I talk about this. There is this thing called the Reedy Creek Improvement District that is s- basically sovereign territory of the Disney Corporation.

In order to get Disney World there, they have their own cops, they have their own medical system, they, have their own tax base. Like- Tunnels ... they literally do have tunnels underneath the place. because so then, yeah, like it's... And it's like it's, so there's this, there's... Central Florida has long had this weird autonomous capitalist state.

I think in the '90s there was some, controversy around this thing called Celebration, Florida, which was this town that they built that was like all Disney workers and, Disney owned all the houses. But, they already had... Celebration was, like, just an acceleration of what they already have in the Reedy Creek district, which is, literally this autonomous corporate territory in the middle of Florida.

So DeSantis' attack on them was, like, largely over control over that tax base because Disney World is the most profitable tourist destination in... Probably not this year, actually. We'll see. But it was until very recently by some distance the most profitable destination in the world, by huge leaps.

It's a lot of money that, that DeSantis wasn't getting enough of a cut in. And then he was backed up by Daily Wire the fascist grifters who wanted to make their own children's network called Bent Key. And if you remember, they wanted to make an anti-woke Cinderella. so they started attacking Disney as woke because they wanted to just, get in on it.

that, that whole grift fell apart 'cause those people are absolute talent- even for the right, talentless hacks. But yeah, like, all of... But all of that controversy, right? All of that stuff, Disney is quite good at, not... They didn't even take a side. They didn't even say, "We detest," "We support saying gay."

they didn't come out in s- in favor of the bill. They just The, the Don't Say Gay bill was the thing that started this controversy. Sorry, now I'm really in the weeds. But the point is, the right is manufacturing these, a conflict with Disney for their own reasons. That and the sort of nature of the way we think about politics in this country, ga- everyone gave it credit as though it was on the other side actively when it never was.

the moment before Seattle. So the WTO was drafted at a bunch of different, They were called rounds, sort of these meetings, of, leadership and everything at, in different countries, and there was one in Uruguay in the '80s.

That was the final round, and that was when the IP protection stuff really got, locked in, to the, To the, WTO formation. and, even at the time, a lot of, third world, the third world countries got organized. They understood that there was, significant threats to their culture, both sort of their agriculture and their t- and their, indigenous technologies, through the patent system.

excuse me, but also their cultural lifeways through trademark and through copyright. so they actually did manage to get, an exception built in, led by, I believe it was, Brazil and India, which is called the TRIPS waiver. I, I'm not gonna... Off the top of my head, I can't tell you, what TRIPS stands for.

I'm not an IP lawyer, so please forgive me for any errors I make, other IP lawyers out there. but, but basically, the TRIPS waiver is a process by which, in the case of a global emergency, say, I don't know, a pandemic, certain forms of, copyright or patent can be loosened in the interest of public health or global stability.

the TRIPS waiver has been, only, successfully evoked twice, and it has never, it has v- very rarely been even remotely successful or a check on that power. in terms of whether it's directly United States imperial power versus sort of capitalist imperial power, I think that's maybe...

at increasingly that is a distinction with a difference, especially as Trump rips the regime apart. but it is definitely the case that the US has, significant economic power, over, other countries using the IP regime. I think one thing that's really, really, I don't know, funny is, if that's the word, about the Trump regime, is the use of tariffs, which is so obviously destructive to the economy, unpopular with his base.

just generally just a, a throwback in all the wrong ways. is a power that the U- the f- the, executive branch already basically had through IP management. There's this thing called the priority watch list. now again, part of the way that this stuff, you talked about you quoted me saying it's arcane and sleepy.

Part of the way that this sort of, stuff works is that, you know, a- and I'm one of, I am one of these people. Your eyes roll into the back of your head when you start talking about IP law or international law, right? it's just, it's it seems esoteric and boring and irrelevant. so that is precisely how a lot of US power, hard power functions.

There was this thing called the priority watch list. It was completely in the control of the West Wing, right? The, the executive branch c- unilaterally controlled it. and it was a list of countries that were not doing enough to stop piracy, right? So that's, either media piracy or, you know, making knock-offs, right?

Knockoff Nikes, knockoff, the bags that you get down on Canal Street, or I guess, I don't know which neighborhood in Chicago, you get the good knock-offs on. But, It's, 

it's on Canal Street, actually. 

Oh, great. Great. yeah, exactly. Perfect. so That list, again, is unilaterally made by the, by the executive branch.

And if they escalate you on... There's three categories on it. And if they, if the, the branch escalates you, the executive branch has power to do basically sanctions on a country, right? They can basically do, do economic warfare, just by s- claiming they're not doing enough to fight piracy, right?

and that is within the bounds of the WTO. although, it's also It's al- it is also internal to US policy as well. and so that, that basically, was this great power over international finance relations that the, the executive branch had, but it was quiet.

People didn't talk about it. It was arcane. so one thing that happens every year is that the Motion Picture Association, the MPAA, formerly the MPAA, they've changed back and forth twice, so I always get wrong which one they are currently, and I apologize. The folks who make you, rate the r- the movies R or PG-13, every year they release a report about w- every country in the world saying, "This is how good these people are to Hollywood, and this is how bad they are to Hollywood."

And they send it to the executive branch, and they say, "Please, punish these countries that have not been giving us enough, enough attention and love." and that's just a formal bureaucratic method of something that the movie industry has been doing for a long time. I talk about in the book, in the '80s, Jack Valenti, who was the long-term, like 50-year president of the MPAA, almost caused an international incident with South Korea when he went over there and demanded that they drop all, all protections on their film industry, and they show more Hollywood films.

the sort of, the most dramatic moment of it is, at one point he forced some Hollywood films into Seoul theaters and, the gangsters who run, who ran those theaters released venomous snakes into showings of Hollywood films to try and stop them from, taking over. yeah. th- there's some pretty wild stuff.

But Valenti himself was also at the Uruguay Round, and he was part of the, the entertainment industry was a massive part of shaping these laws. they wrote the... Alongside the pharmaceutical lobby, the stuff in the WTO, that is about intellectual property was largely written by entertainment and pharmaceutical lobbyists.

and in, in 2021, when the, when, a TRIPS waiver was applied for the coronavirus vaccine, right? Which made sense. COVID was, obviously, that vaccine should be shared as widely as possible. There's no reason Moderna should continue to profit off of it. when the Third World applied for that, the int- the entertainment industry, including Disney, the MPA, sent lawyers to the Biden administration to stop them from sharing the vaccine.

Because for them, protecting IP is more important than anything else 

And that was absolutely stunning when that happened. You write that even friends committed to organizing against capitalist power were shocked to hear that in 2021, Disney, along with the six other members of the MPA, sent five lobbyists to prevent the Biden administration from waiving intellectual property rights that would've allowed generic COVID-19 vaccines to be produced globally, a potential life-saving measure for developing countries.

So Vicky, when that happened, we had a conversation with Ben Ehrenreich, who had just posted the Newt- New Republic article, We're, hur- hurdling toward global suicide for the New Republic. And, that, this article was in, it came, I think it came out in March or April of 2020. And he mentioned how, like Disney and the MPA, Bill Gates was part of the last-minute effort to protect IP rather than, produce a generic COVID vaccine that could have saved countless more lives.

That literally-- They literally chose property over people. Vicky, why was there so little backlash against multinational corporations in the US, insisting that IP be protected even at the cost of human lives? ha- has-- Ha- have we, been convinced that IP must be protected even if it does cost lives?

Yeah, I think, I think part of why is 'cause it's quite arcane, the news only broke, it was a small story broken by I think "The Intercept," I believe. and I think on some level, those-- the news about what lobbyists are doing, in general doesn't, es- and especially around health policy, doesn't really spread wider.

not to go too far afield from the topic of the book, but I think also part of what was going on in that period was, after the uprisings in twenty twenty, the Biden administration was using normalizing the pandemic, as a very effective counter-revolutionary tool, right? They were attacking bodily autonomy.

They were attacking the mutual aid that had sprung up, organically, around, in twenty twenty. and they were attacking the anti-police movement from a sort of sideways direction by demanding everyone just get back to work and get back to normal. And part of why that was effective, of course, was that people were tired of lockdowns, and it was hard to have had social life totally and utterly disrupted by a pandemic.

and so I think a lot of people were not, were not really paying attention to the sort of machinations going on behind the scenes. People were psyched that the vaccine itself existed. They were so ready for their own lives to get back to normal, to stop thinking about the pandemic. and there was this huge political push from the Biden administration, over years to stop paying attention to polic- to, pandemic policy, right?

they would take away reporting, and they would take away... they just, there was this real effort to make us forget and not pay attention, as that went on. and that wasn't necessarily just to protect the IP regime. that was also about getting people back to work, obviously, for profit, for the corporations and to end the massive recession that occurred obviously in twenty twenty.

anyways, all of which is to say, I think people on some level don't Just don't see how that stuff is happening because it's arcane and legalistic, and behind the scenes in a lot of ways. But yes, the other answer is yes. People have been convinced, I think especially by, the campaign that happened in the 2000s, the anti-piracy campaign, and also-- and that continues into the present, that, copyright and, patent, that intellectual property is about protecting artists and protecting creative people and protecting inventors, which it never has been from its very beginning.

that's not what it's for. It's for protecting the people who bring those things to market, which is a very different class of people. but because I think we live in this, this time of, y'all know, you've been here for 30 years, collapsing journalism, collapsing media jobs, right?

The cut-- the gutting of the middle class of any creative industry whatsoever, which AI, is accelerating but is hardly, its beginning. I think that a lot of people, a lot of artists feel like they need protection, and the only form of protection that they are aware of is copyright, so they think that's their protection.

So I think there is a sort of a combination of, a very successful, political, social, and economic c- marketing campaign to convince people that intellectual property protects them, it protects normal people, and a sort of, the, the standard mode of hiding these corporate machinations, which is by making them legalistic and complicated and happening in back rooms in DC, in ways that, you could technically learn about but are quite difficult to understand.

And Finally, Section D, WHAT DO WE DO ABOUT IT

if you were to ask an economic student what goal of specialism is, they would likely respond with something along the lines of, "Economics can be defined as the study of the choices people make and the actions they take in order to make the best use of scarce resources in meeting their wants and needs."

In this vein, contemporary economics tends to view the world as possessing finite resources, whether those resources be oil, apples, or houses, with the goal of economics being to theorize the most efficient way of ensuring those resources get into the hands of those who need them most. The idea that concentrating the ownership of such resources into the hands of the few might lead to such an ideal distribution may at first seem counterintuitive.

Yet the idea that private ownership is preferable to communal ownership for reasons of efficiency and practicality has strong support across the discipline. The most oft-cited source used to make this case is a 1968 essay by the ecologist Garrett Hardin titled The Tragedy of the Commons, which considers the efficiency and sustainability of a piece of communal land in providing those who use it with food.

"Picture a pasture open to all," writes Garrett. "It is to be expected that each herdsman will try to keep as many cattle as possible on the commons." Assuming the society in which these herdspeople live is stable and somewhat peaceable, he argues that, "The rational herdsman concludes that the only sensible course for him to pursue is to add another animal to his herd, and another.

But this is the conclusion reached by each and every rational herdsman sharing a commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit in a world that is limited. Ruin is the destination to which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons.

Freedom in a commons brings ruin to all." In short, Garrett argues that the consequence of communal ownership of this metaphorical field is its devastation. Each of the herdspeople attempt to graze as many cattle as possible and eventually all the grass is gone and the land is useless Converting that land into private land deposits averts such a scenario.

For, he argues, if you have stewardship over just your piece of land, you're more likely to be wary of overgrazing it and to ensure that it remains useful to you for as long as possible. Garrett's argument, and those made by economists in his wake seeking to refute the practicality of communal forms of ownership, rely on a number of assumptions which I would suggest aren't quite as solid as he would like to think.

Indeed, in 2009, Elinor Ostrom was awarded the Nobel Prize for Economics for demonstrating that the communal ownership of land can be both sustainable and efficient and has been proven to be so in practice in numerous real world scenarios. Nevertheless, even if Garrett's argument did bear out in its entirety, it would still provide little rationale for private property rights as they relate to intellectual property.

For the tragedy of the commons argument is predicated on scarcity, and that simply doesn't apply to creative works. The existence of the Star Wars fan film Darth Maul: Apprentice, for instance, doesn't deplete the resource of Darth Maul. It was still possible for Disney to make use of the character in Solo: A Star Wars Story, and it remains possible for other fans to make use of the character in other pieces of fan fiction and fan films.

From an efficiency or practicality standpoint then, the application of concepts of private property which emerged in relation to physical property simply don't cohere when applied to intellectual property. In fact, to my mind, restricting the ability of anyone other than the original creator of a work, whether an individual or a corporation, is less efficient than not doing so.

For we're placing sort of false limits on what can be achieved within our culture. The argument that copyright law helps to ensure a better distribution of copyrighted material becomes even weaker when we take into account the increasing lengths of copyright terms over the past few centuries. For where the Statute of Anne granted authors exclusive property rights for just 14 years after that work's creation, successive national laws and international treaties have extended copyright laws to a staggering degree.

In the United States and the European Union, the copyright law currently considers an artistic work private property for the entire life of the author, plus 50 years after their death. In Mexico, it's a full 100 years after the creator has died. And we can talk a great length about how ridiculous it might seem that until 2015, Warner Brothers were earning around $2 million a year from the song Happy Birthday to You, a revenue stream they were only denied due to the efforts of filmmaker Jennifer Nelson, who took the company to court to prove that the song was actually in the public domain.

Yet things are just as troubling on the other end of the spectrum. For many works which are still under copyright, yet are deemed not to be profitable assets by their owners, are likely to not be made available to the public at all. Numerous books, films, and sound recordings which publishers and distributors don't deem it worth spending money re-releasing, thus sit locked up in vaults being enjoyed by no one.

I hope to have so far shown that strong arguments for abolishing copyright law exist from both a creative or aesthetic standpoint and also from one of efficiency and access. Nevertheless, even if you are totally on board with my argument thus far, there remains a pertinent and vital problem to be solved.

For even if we agree that the creative process is not one of an artist drawing inspiration from thin air, but instead the result of their grazing on an intellectual or cultural commons, that doesn't mean they don't deserve to be compensated for their work The argument is solely that the creative process is different, not that it isn't in any way less remarkable.

There's another sort of commons, and that is a commons by necessity. And this is a little trickier. Are there parts of the world that simply cannot be possessed in any meaningful way? That can't be enclosed? That can't be subject to the... Remember how I described the justice, the grounding of rights to possession over certain things, right?

Are there parts of the universe that are unsusceptible to that sort of grounding? And I claim that there are. These are, I would say, commons by necessity, and here's a couple examples. all of the oxygen in the atmosphere Okay? The element oxygen. All right? Laws of nature. Bands of the radio spectrum. I like this one, 'cause this was the one a lot of IP theorists argue about all the time.

Is there any way for me to exclusively possess a band of the radio spectrum?

What do you think? What can I do? If I wanna exert my control over a band in the radio spectrum, I build a radio tower and I start broadcasting on a particular band, right? And then you come along and you wanna exert your control over it, and what do you do? You pump up the volume, right? You turn up the wattage, and then we end up with a, a, a battle, right?

And this is what a lot of economists call, the tragedy of the commons, right? Is when everybody's fighting for, one of these things that, is supposed to be to everyone's benefit. but I don't think most of the discussions account for the fact that there are these two different types of commons, and we can choose to treat them...

We can choose to treat commons by choice in one way, but we have no choice over commons by necessity. I argue that the human genome itself is a commons by necessity. It is a constantly evolving object that involves every member of a species, and like outer space, like the atmosphere, like sunlight, like laws of nature, and like radio spectra, it cannot be enclosed with the exclusion of others simply as a matter of necessity, not as a, a...

it's just logically impossible to conceive of And in fact, we prove this all the time, right? So if somebody wants to come along and reproduce a gene, what do they do? One of these twenty percent of the genes that are patented. Do you have any control over your present violation of the patent law?

Or you could stop yourselves rep-replicating, right? Yeah. You can try to do that, and you can try not to breathe, et cetera. Anyway, this un-unenclosable object is constantly, reproducing, genes. And, I argue that this is an example, just as clear to me as, radio spectra, of a commons by necessity.

And it isn't a pragmatic argument. Okay? So this is distinct from anti-commons argument. When you think of commons, you think of the anti-- because a lot of you, Lawrence Lessig and people like that speak of the anti-commons effect. That's a pragmatic argument, right? That is not what I'm making.

I'm making an ontological argument. I'm talking about the nature of the thing itself

so when people try to patent genes, when they do what, Craig Venter and others have done in trying to patent genes, they are attempting to enclose an unenclosable space to the exclusion of others, and I argue that this is an ethical wrong So what, where does that-- I'll give you an example.

we have people from the ACLU here today as well, who are courageously suing Myriad Corporation, for Myriad's patents on the BRCA1 and 2 genes. and, let me introduce them, 'cause I really think they're doing, great work. I saw Sandra too, right? Okay. Sandra S. Park, is with the ACLU.

She's an attorney on the case, that is, against Myriad, and Tania Simoncelli, is a lead scientist on this case. they are doing the right thing here because Myriad has violated not only the law, they're doing something that I approve of ethically as well, because there is an ethical problem.

Myriad has attempted to possess, through patents, the BRCA1 and 2 genes, which are responsible, for a great number of cancers. and in so doing, they are trying to prevent others from, using those genes. So they have actually sent cease and desist letters, to researchers, who were doing research on the BRCA1 and 2 genes, who were, in the course of that research, reproducing the genes.

All right? I argue that not only is that illegal, which is Luigi's domain and Sandra's and Tanya's domain, it is unethical because this is an attempt, to curtail our autonomy over our own genome. You and I have as much right to investigate what makes us up as anyone else, and this goes back to the axioms I explored early on in the talk.

What Myriad owns through these patents is a right to exclude you from finding out about what is in you, and they're ex-exercising that right to our common detriment. In fact, it does violence to you when they exercise that right, in much the same way as if Peter ripped this book from my hand So our fourth premise, and this now goes beyond the gene argument and goes into, new territory for me, so be gentle.

IP rights are exclusionary rights that prevent the unauthorized expression of pr- protected idea types. So I realized after I made this argument that this-- the two books I've talked about so far lead me to a conclusion that I didn't realize I was gonna end up having to, accept, but which I now accept wholeheartedly.

When an author or inventor owns their intellectual property, they can exclude others from making unauthorized reproductions of their expressions. they re- they can receive royalties for any reproduction made, and they can enjoin the expression, and they can prevent the expression by others of that idea and type.

Okay? That's basic intellectual property law. Now, we allow for all sorts of restrictions on our expressions, right? Consistent with Mill's liberty principle, and what was that again? Where that expression injures another, does some injury. So typically, when the law says you can't make a certain expression, it has to do with, preventing a physical harm or incitement to some physical harm.

And I've come to the conclusion that all intellectual property law is, some form of government restriction on expression having nothing to do with physical harms or incitement And in fact, all expressed ideas belong to the category of commons by necessity, as there is no meaningful way of possessing or enclosing them

So besides the ethical problems of governmentally curtailing free expression, I say that intellectual property law as a category of law is an attempt to enclose a commons by necessity, just like laws that allow for the patenting of genes. IP rights prevent the free use of expressed ideas, which are commons by necessity, just as much as radio waves are, just as much as the element oxygen is, genes and laws of nature 

That's going to be it for today.

As always, keep the comments coming in.

You can record - and re-record - a voice message by tapping the link in the show notes,

You can reach us on Signal at the handle bestoftheleft.01,

or simply email me to [email protected]

The additional sections of the show included clips from;

David Stewart

The Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition

Digging a Hole, The Legal Theory Podcast

Tom Scott

Life with Machines

BBC News

Vertex Effects

This Is Hell!

Just Write

The Final Straw Radio

LegalEagle

Tom Nicholas

and V for Voluntary Library

Further details are in the show notes.

Thanks to everyone for listening, thanks to Deon and Erin for their production work for the show, thanks to Amanda for all of her work behind the scenes, thanks to our editors and thanks to those who already support the show by becoming a member, purchasing gift memberships, or making one-time donations.

You'll find the link to support us in the show notes along with links to join our Patreon and Discord communities for free where you can also continue the discussion. And don't forget to follow us on all the social media platforms as I prepare to relaunch our social media strategy!

So coming to you from far outside the conventional wisdom of Washington, DC, my name is Jay! And this has been the Best of the Left podcast, coming to you twice weekly, thanks entirely to the members and donors to the show, from bestoftheleft.com.