In its current iteration, copyright law gives us content consumers a right that we’ve internalized so thoroughly that most people exercise it without noticing. It’s what lets you sell a pile of books during a stoop sale, haul in a stack of old records to trade for store credit, or lend a CD to a friend. It’s called “first sale doctrine,” and it means, simply, that while only the owner of a copyright has the right make the initial sale of each particular copy of a work, once that sale’s complete, the new owner of that copy can do almost anything she wants with it. Sell it, lend it, rip it up—it’s all allowed.
That’s not necessarily true for digital works, for reasons both technical and financial. And as scholars and advocates look at reforming copyright law, updating the first sale doctrine could be one of the more contentious issues.
In a new white paper, Sherwin Siy, vice president of legal affairs at Public Knowledge, a DC-based digital rights group that “promotes creativity through balanced copyright,” describes the problem of digital first sale in simple, straightforward language—a rare treat in copyright land. The problems and policies this paper lays out won’t be new to copyright nerds, but it’s unusual in its attempt to make this issue legible to the public as an issue of basic personal property, rather than an obscure, technology-driven question.
“I think Larry Lessig and other people about a decade ago did a fantastic job to get people to understand that there are speech issues tied up in copyright,” he says. “I want to get people understand that there are personal property rights issues involved in this, too.”
In other words, he’s trying to tell the world what it has to lose. Right now, first sale doctrine means it’s possible to own a copy of a work that someone else created. But that could change in the future.
“As more and more media is born digital…the idea that no one can ever actually ‘distribute’ a digital file without reproducing it can reap big rewards for copyright holders,” he writes in the paper. “When CDs are as obsolete as 8 tracks, and if there’s no physical media on the market, then there will never be sales of used media. No more used book stores. No more second-hand music shops. You would have to buy everything from the original producer. 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.”
But judges have interpreted the law, as currently written, to say that digital transfers are reproductions—illegal copy. Extrapolating forward from this principle, though, its possible to imagine a radically different media market than the one that now exists. Siy’s paper argues for a rethinking of the law that would preserve a consumer’s rights to own and resell copies of art, software, music, and written work, even if they’re born digital.
Innovators that have tried to work within the current law to exercise those rights so far have not done well in court: In March, for instance, New York district judge Richard Sullivan sided with Columbia Records against a company called ReDigi, a resale marketplace for unwanted digital music files, when he declined to apply first sale rights broadly to digital music. ReDigi promises that, at the end of a sale made through its site, the seller will no longer have a copy of the song on her computer. But that didn’t matter. “The fact that a file has moved from one material object—the user’s computer—to another—the ReDigi server—means that a reproduction has occurred,” Sullivan wrote. Copy made; copyright violated, no matter the intention.
But every time you use a digital media, your computer creates copies—temporary ones, usually. Transferring an mp3 or an ebook to a new owner necessarily means making a copy of the file.
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.