Wednesday, November 7, 2012

Music Ownership, First Sale Doctrine, and a Potential Parade of Horribles

The US Supreme Court is hearing an appeal that could change your ownership rights to music.

If you purchase music as physical media or license-free downloads, you are protected by the so-called First Sale Doctrine of the US Copyright Act, which gives people the right to lend, resell, or give away the works that they've bought, even if those works contain copyrighted elements.

If you purchase music as licensed downloads (or by storing it in the cloud) you accept terms clearly outlined in the end-user agreement for doing business with services like iTunes. Consumers do not own their iTunes material; rather, they get a non-exclusive right to access the files, a right that cannot be sold, donated, or given away, even to your descendents after you die.

But the case of Kirtsaeng v. Wiley, currently being heard by the US Supreme Court, could undermine First Sale Doctrine, making ownership feel more like licensing.

Book publisher John Wiley & Sons is suing to prevent an entrepreneur from (legally) purchasing cheap editions of Wiley textbooks in his native Thailand and (legally) importing and selling them to foreign students in the US at below list price.Wiley is asking the Court to rule that First Sale Doctrine only applies to goods made in the USA and that Mr. Kirtsaeng needs their permission to run his import business. [Transcript of oral arguments.]

The so-called "Parade of Horribles" resulting from a ruling for Wiley are many and far-reaching: foreign manufacturers like Toyota having to seek permission from all owners of copyrighted content in their vehicles before import and sale in the US; companies perversely moving manufacturing operations overseas specifically to escape First Sale Doctrine on their products; libraries requiring permission from copyright holders before lending titles in their collection; US citizens requiring permission before bestowing gifts of copyrighted items (books, fashion, textiles, jewelry) brought home from the design capitals of the world. All would have negative US economic impact.

Furthermore, once a precedent is established that First Sale Doctrine can be limited, the slippery slope scenario imagines a tangle of special-interest exemptions passed by a lobbyist-influenced Congress until the suburban garage sale becomes a bureaucratic nightmare, used book and music stores become extinct, and eBay and craigslist shut down completely.

The Electronic Freedom Foundation has joined Demand Progress and the Free Software Foundation in giving you a platform to contact your legislators to urge them to stand up for First Sale. While you're at it, ask them to pass legislation conveying legacy rights for licensed media. Take action today.

             Vinyl-to-Digital Restoration #45             

Title: The Modern Jazz Quartet
Artist: The Modern Jazz Quartet
Genre: Jazz
Year: 1972
The Modern Jazz Quartet (2-LP, Prestige PR 240050) is a re-packaging of three Modern Jazz Quartet titles: Concorde (PR 7005), Django (PR 7057) and MJQ (PR 7059). I recently purchased it at an estate sale for $2 and made a high-res digital transfer with tracks organized according to original title and album sequence. (Yes, you can do that.) If First Sale Doctrine is not universally applied, how many copyright holders' permissions (euphemism for payments) would have been necessary to buy this used record — one, three, four? Any number greater than zero is too many.

© 2012 Thomas G. Dennehy. All rights reserved.

1 comment:

  1. Update: The Supreme Court has ruled 6-3 in favor of right of first sale, and against Wiley & Sons. Critics worry the decision might spur publishers to hasten their exit from the print world to the digital world, where they can license their books rather than sell them.