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PKThinks, the think tank of consumer-advocacy group Public Knowledge, has released the first of what’s to be a series of white papers on “cutting-edge legal issues.”
As more of what we own becomes intangible, and app downloads, online music purchases and streaming video rentals become ever-greater parts of our lives, “Copies, Rights & Copyrights” is a compelling read.
Here are seven takeaways from the report.
1. Macy’s Helped Put in Place the “First Sale” Doctrine
In 1904, publishing house Bobbs-Merrill released a book called The Castaway and on its inside cover wrote that the book couldn’t be sold for less than $1. Macy’s decided to sell the book for 89 cents. Bobbs-Merrill sued and a court decided that the publisher gave up its rights to control how that physical book is sold, once it sold it.
“It’s temptingly easy to draw a line straight from that case to the relevant section of our copyright laws today,” wrote report author, and PK’s Vice President for Legal Affairs Sherwin Siy.
“First sale balances the tension between the rights of property owners and the rights of authors,” Siy added.
2. Enter the End-User License Agreement (EULA)
Often when we download a computer program, we’re made to sign a EULA that includes the phrasing, or some variant: “This software is licensed to you, not sold.”
“That sentence is an attempt to assert that the consumer who pays for a specific copy of that computer program isn’t its ‘owner,'” wrote Siy. “This would mean that first sale doesn’t apply, and the user/owner has no right to distribute the program after purchase.”
3. Is It Possible to Distribute Digital Content Without Reproducing It?
If I buy a record and tire of it, I can sell it to someone. But if I buy an MP3, can I—even if I delete the file on my end—sell it to someone? No, because to share/sell it is to make a copy, and copies infringe copyright.
“When CDs are as obsolete as eight tracks, and if there’s no physical media on the market, then there will never be sales of used media,” wrote Siy. “No more used book stores. No more second-hand music shots. … In light of this, copyright holders have every incentive to ensure that the law interprets any digital transfer as a reproduction and not a distribution.”
An exception, however, is allowed for computer programs, which need to make copies to a computer’s RAM.
4. Digital Restrictions Are Eroding Control of the Media We Buy
Digital rights management (DRM) made headlines early this year for, somewhat inadvertently, making it illegal to unlock a smartphone you own and that is no longer under contract with an operator.
DRM is also the reason it’s illegal to rip a DVD one owns onto one’s computer.
“It’s like being sued by your car manufacturer for picking the lock to your car,” wrote Siy.
PKThinks Tackles Copyright Issues in a Digital Age
5. Tweaking the Law Would Give Us More Rights to What We Own
Simple changes in the language of the law would make it possible to do things like rip your DVD to your computer for easier viewing.
“Just as the essential step rule currently only allows those reproductions that are necessary to use [a software] program, the changes would allow only those copies that [are] necessary to use the media,” Siy wrote.
Siy clarified that “use,” in the law, could be replaced with something like “the ability to read a book or view a movie or listen to music.”
6. Born-Digital Copies Can Have New Life
The problem of distributing born-digital copies could be resolved in at least two ways, wrote Siy. One is that a limited form of reproduction is allowed—I’m allowed the brief moment of reproducing my MP3 in the process of selling it to you, and in the quick moment before destroying the version on my end.
A second solution could be not transferring a copy but one’s rights to the work. To transfer a DVD to someone, a user would give up “her possessory interest in the DVD.” Ditto for the licensee of a copy of a game.
7. Adjusting to Changing Technology Isn’t as Hard as It Sounds
Property ownership is an old idea. Copyright is newer, said Siy, and it “can be made flexible enough to allow the new normal of digital ownership and usage of copies, while reserving for copyright holders a right for actions that multiply market-relevant instances of their works.”