And it’s in the financial interest of copyright holders to keep the law from embracing that commonplace copying. As the physical form of content becomes not much more substantive than a flash of thought, content-lovers are being told they are buying access to it, rather than a copy of the thing itself. And Siy’s paper sneakily builds the argument—you hardly notice it happening—that content companies are taking away rights from their customers. They are now selling content in a way that’s limiting what the buyer can do with her copy. In this world, you’re not allowed to lend out your copy of a book or destroy it. You’re certainly not allowed to resell it.
We’re left with a more limited relationship to the creative work that we purchase. Right now, if you think you want to listen to Joni Mitchell’s Blue forever, you can buy that privilege, in the form of a CD or a record. And, if you change your taste, you can change your mind and sell your copy of the album.
“It’s important to keep these rights, because you end up with a system where everything is contingent,” Siy says. “You have no certainty that you’ll be able to get something. Will I be able to access it 5 years from now? 20 years from now? Until the day I die, and after that? I think the extent to which that certainty is powerful gets taken for granted.”
Public Knowledge is more sympathetic overall to the concerns of large copyright holders than some Internet rights groups, but on this issue, the organization ends up strongly on the side of preserving first sale rights. In his paper, Siy makes a number of suggestions, some relatively limited and some that will send chills down the spine of copyright holders, that would align copyright law with digital reality. His small fixes would recalibrate the law so that making incidental copies while reading an ebook or listening to a song doesn’t constitute illegal activity. But he also lists more radical proposals, not all of them his own—that the law could either create a limited right to make reproductions or allow the sale of access to a particular piece of content. If you’re tired of listening to Blue, you can sell your right to listen to it to another person. He also raises the idea of limiting the assertions that companies are allowed to make in license agreements.
“Some of the proposals are radical and will piss people off. And some of them won’t. Most of the solutions suggested aren’t ones I’ve come up with. I just wanted to point out the need for something to happen. The law hasn’t really kept up,” he says.
Disclosure: CJR has received funding from the Motion Picture Association of America (MPAA) to cover intellectual-property issues, but the organization has no influence on the content.