Pluralistic: 03 Jan 2022

Today's links

The Duke Center for the Public Domain's collage of artwork from movies, music and books that entered the public domain on Jan 1.

Happy Public Domain Day (permalink)

On January 1, 2019 something extraordinary happened. For the first time since 1998, the American public domain got bigger.

What happened in 1998? Congress – led by Rep Sonny Bono – extended the copyright on all works by 20 years. Works that had already been in the public domain went back into copyright. Works that were in copyright got an extra 20 years. The public domain…froze.

This was a wanton, destructive act. The vast majority of works that the Sonny Bono Act covered were out-of-print and orphaned, with no known owner. Putting them back into copyright for 20 years prevented their reproduction, guaranteeing that many would vanish from the historical record altogether.

As to the minuscule fraction of works covered by the Act that were still commercially viable: the creators of those works had accepted the copyright bargain of life plus 50 years. Giving them more copyright on works they'd already produced could not provide an incentive to make anything more. All it did was transfer value from the public domain into a vanishing number of largely ultra-wealthy corporate private hands.

As to living, working creators: those who'd made new works based on public domain materials that went back into copyright found themselves suddenly on the wrong side of copyright. Their creative labor was now illegal. Any working, living creator that contemplated making a new work based on material from the once-public-domain was now faced with tracking down an elusive (or possibly nonexistent) rightsholder, paying lawyers to negotiate a license, and subjecting their work to the editorial judgments of the heirs of long-dead creators.

The Sonny Bono Act is often called the Mickey Mouse Act, a recognition of the extraordinary blood and treasure that Disney spilled to attain retroactive copyright extension. This extension ensured that Steamboat Willie – and subsequent Mickey Mouse cartoons, followed by other Disney products – would remain Disney's for another two decades.

(Actually, there are a lot of copyright historians who believe that Steamboat Willie was already in the public domain due to technical defects in its copyright registration, but no one could afford to fund a lawsuit to find out for sure.)

(What's more: Steamboat Willie is a mashup of Buster Keaton's Steamboat Bill, Jr, relying heavily on the kind of fair use permissiveness that the company would later devote its legal might to extinguishing.)

As the years ticked by towards January 1, 2019 – the day that the public domain would reopen, welcoming in the tattered remains of the creative treasures of 1923 – the people who cared about this stuff grew increasingly anxious. Would Disney stage another full court press to extend copyright again, putting even more of our shared cultural legacy in harm's way to preserve its privilege?

But January 1, 2019 arrived without any further copyright extensions (in the US, anyway – Justin Trudeau let Donald Trump con him into a 20-year retrospective copyright extension in Canada). And on January 25, 2019, hundreds of us gathered at the Internet Archive in San Francisco to ring in the new, old year. I gave the keynote. I think it's one of my best-ever talks, despite a little bobble in the middle:

Jan 1, 2019 was just the beginning. Every year since, there's been a fresh crop of works entering the public domain, and each year's harvest is larger than the previous one's, as the achingly slow advance of the public domain crawls toward the modern era and its superior preservation practices.

January 1, 2022, was the best-ever day for the public domain since Sonny Bono put it on ice in the previous millennium! As ever, this year's crop has been lovingly catalogued and contexualized by Jennifer Jenkins and James Boyle from the Duke Center for the Public Domain.

Jenkins and Boyle have been doing these January 1 roundups for more than a decade, long before the public domain came back in 2019, cataloging what we would have gotten, save for the Disney/Sonny Bono conspiracy of 1998. These older reports were necessarily melancholic, a requiem for our stolen commons.

But since 2019, the Public Domain Day reports have been triumphant, a summing up of the vast storehouses that materials that anyone may access, enjoy, remix and republish. For example, this year, a whopping 400,000 sound recordings from 1926 entered the public domain!

1926 was also a fine year for films, with performances from Harold Lloyd, Greta Garbo, and Buster "Steamboat Bill, Jr" Keaton – the man whose movie Disney took in 1923 for Steamboat Willie, and whose oeuvre Disney put behind a paywall for 20 years in 1998.

On the literary side, we see the public domain debuts of Hemingway's "Sun Also Rises," Langston Hughes's "Weary Blues," Dorothy Parker's "Enough Rope," Felix Salten's "Bambi" and – wait for it – AA Milne's "Winnie the Pooh"!

The liberation of the Poohverse is quite a watershed. Pooh's lifetime earnings are $80.3B, most of which accrued to Disney, its corporate acquirer (Pooh is tied with Mickey Mouse for total historical earnings). Disney has already showed a willingness to play dirty when comes to Pooh. In 2002, the company was fined for illegally destroying 40 boxes of evidence that showed it had shortchanged the Milne estate:

If Disney wants to retain its control over Pooh, it has options. Copyright trolls claiming to own the rights to Sherlock Holmes, Tarzan, Buck Rogers and Zorro have pioneered a legal playbook to lay claim over the public domain.

This copyfraud depends on a mix of trademark claims:

Obscure copyright hair-splitting:

And out-and-out lies:

These tactics are primarily effective at scaring off commercial rivals. Dedicated fans – especially dedicated fans with law degrees and free time on their hands – can defeat them:

When that happens, beautiful things follow:

But Disney is no ordinary adversary – its a monopolist whose access to the capital markets has allowed it to buy up an appreciable fraction of our contemporary culture. In three years, Steamboat Willie will enter the public domain. As Jenkins wrote to me, how Disney handles Pooh might be a clue to what they'll do about Mickey.

It's all kind of messy. Pooh's entered the public domain, as have E. H. Shepard's classic illustrations – but Tigger will stay in copyright for two more years. Meanwhile, Disney has trademark rights for "Winnie the Pooh" on every conceivable product or service – but, bizarrely, Disney also let the trademarks lapse for all the original drawings of the Pooh characters!

Which is all to say: there's never been a better time for someone (else) to edit an anthology of unauthorized Winnie the Pooh stories.

Of course, Pooh's not the only Disney acquisition that entered the public domain on Jan 1: you may have noted Bambi's presence on the list. The Bambi that's entering the PD comes to us from Felix Salten's novel which was banned by the Nazis as an allegory for Europe's treatment of Jews. That Bambi is a bizarre, dark novel for adults, and it's long overdue for an excellent English translation.

The well-known works now in the PD aren't limited to stuff that Disney plundered. There's songs like "Bye, Bye Blackbird" and "Gentlemen Prefer Blondes," and many, many more. They're catalogued here:

As is their tradition, Jenkins and Boyle also give us a look at the parallel universe in which Sonny Bono hadn't locked up the public domain. In that universe, we'd be getting quite a crop of amazing new public domain works, from Heinlein's "The Moon is a Harsh Mistress" to Herbert's "Dune."

Meanwhile, our European cousins' public domain just accepted the works of every author who died in 1951, from William Randolf Hearst to Sinclair Lewis to Ludwig Wittgenstein. Canadians are getting Dianne Arbus, Louis Armstrong, Coco Chanel, Ub Iwerks, Ogden Nash, Bill "AA" W and other creators who died in 1971.

A photo of me with my daughter Poesy, skiing over the Christmas holiday.

2021 Daddy-Daughter podcast (permalink)

Back in 2005, Mark Pesce and I were attending a conference in Montreal and he demanded to know why I wasn't doing a podcast. I said I didn't have time to compose new material for a regular podcast or to find a studio to record in. He pointed out that I could just record readings of my stories and articles with my laptop's mic. He was right. I started podcasting, with a low-fi reading of my novella "After the Siege":

Seven (!) years later, I was the father of a four-year-old daughter, Poesy. Fatherhood was (and continues to be) amazing, and challenging, and exhausting, and wonderful. On December 21, 2012, my wife and I managed to miss the fact that the kid's day-care was closing for the holidays, leaving us flat-footed. I brought the kind into my office, where we colored and played games…and recorded a podcast!

That became an annual tradition. Every year since (except for 2016, when my mic died), Poesy and I have sat down for an interview and a sing-along at Christmastime. Last week, I released the 2021 edition:

Listening to these all in a row (they're all linked in the post) was quite an experience for me. Parenting continues to be hard and rewarding and amazing and terrifying, but these annual snapshots remind me of just how far we've come.

Here's a direct link to the MP3 (hosting courtesy of the Internet Archive; they'll host your stuff for free, forever):

And here's the RSS for my podcast:

I continue to post episodes every Sunday (410 so far!), but I don't know if I'll get a podcast episode out this coming Sunday. I'm having my (other) hip replaced on Jan 11 and I've got a lot of deadlines between now and then. If not, I'll be back some time in Feb, when I'm healed up.

This day in history (permalink)

#20yrsago The Brunching Shuttlecocks’ Geek Heirarchy

#15yrsago Eating at every restaurant in the phone book in alphabetical order

#10yrsago Distrust That Particular Flavor: William Gibson’s long-overdue essay collection

#10yrsago Photos from the first science fiction convention, 1937

#5yrsago Unfuck Your Habitat: compassionate cleaning advice, even for people terrified by Marie Kondo

Colophon (permalink)

Today's top sources: Jennifer Jenkins

Currently writing:

  • Picks and Shovels, a Martin Hench noir thriller about the heroic era of the PC. Yesterday's progress: 1035 words (7548 words total).

  • A short story for MIT Tech Review's 12 Tomorrows PLANNING

  • A Little Brother short story about remote invigilation. PLANNING

  • A Little Brother short story about DIyY insulin PLANNING

  • Spill, a Little Brother short story about pipeline protests. SECOND DRAFT COMPLETE

  • A post-GND utopian novel, "The Lost Cause." FINISHED

  • A cyberpunk noir thriller novel, "Red Team Blues." FINISHED

Currently reading: Analogia by George Dyson.

Latest podcast: Daddy-Daughter Podcast, 2021 Edition (

Upcoming appearances:

Recent appearances:

Latest book:

Upcoming books:

  • Culture Heist: The Rise of Chokepoint Capitalism and How Workers Can Defeat It, with Rebecca Giblin, nonfiction/business/politics, Beacon Press, September 2022

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"When life gives you SARS, you make sarsaparilla" -Joey "Accordion Guy" DeVilla