Jack Valenti and the MPAA mobilized, and lobbied strongly against the bill. Their arguments were extremely weak, which led Lessig to the conclusion he presents in the book: that the industry’s concern isn’t about protecting their content. They were interested in stifling potential competition from the public domain; culture derived from public domain works would compete with culture derived from their copyrighted works. The industry exists because it’s a monopoly, and they’re afraid of anything that would diminish it.

I don’t necessarily agree with his conclusion (it’s a little extreme, though the evidence is interesting), but it’s an illustration of just how far the lobbyists are willing to go to defend their monopolies.

Precisely because those few iconic works have come to be identified with their creators (think Mickey Mouse and Disney), however, it seems plausible that they (or aspects of them) would qualify for trademark protection. Though potentially perpetual, that protection is in many respects more limited than copyright protection. Most conceivable non-commercial uses of the marks would probably be permitted (essentially expanding the scope of fair-use), but the mark owner would retain commercial rights. Moreover, the vast majority of copyrighted works would not qualify for trademark protection in the first place. If we combined substantially shortened copyright terms with (perhaps expanded) trademark protection for very well-known copyrighted works, we might be able to accommodate those few outlying works that deserve longer protection without excluding the vast majority of works from the public domain for longer than necessary.

In the words Upton Sinclair, “It is difficult to get a man to understand something when his salary depends upon him not understanding.”

Best,
JL