Does DRM violate the 1st Sale doctrine

[neilmarr]

Having been in the ebook (and treebook) publishing biz for over a decade now, this subject is close to my heart. Must confess, though, that my sympathies lie with Bremen Cole and his feeling that DRM is a form of virus (actually anti-viral, but a bug no less). And ECW couldn't be more right in saying that the cat's already out of the bag.

What I'd like to see more than imposed legislation and electronic roadblocks is simple fair play. I have absolutely no beef with anyone sharing my own ebooks in the same way my paperbacks are shared around and recycled ... as long as they don't make a business of it to hurt us and our authors and as long as they don't vandalise the books we so carefully prepare.

Just play by the rules of cricket, chaps and all's fine.

Cheers. Neil (13 3/4 years old)

[Lemurion]

Originally Posted by Shaggy

That's absolute nonsense. First sale has nothing to do with content vs media. First sale says if you own something, you can sell it. You certainly do own a single copy of the content, it makes no difference if that copy is paper or digital.

You're absolutely right that the doctrine of first sale has nothing to do with content vs. media. This is at least in part due to the fact that when the doctrine was first established there was no way to separate content from media so no one even considered the possibility. Content and media were inseparable and considered indistinguishable, what applied to one applied to the other.

One important point to note is that the doctrine therefore had and has nothing to do with copyright because no copies were involved and so copyright law didn't come in to play.

However, with the move to digital and separation of content from media, there was a renewed look at the doctrine which led to the shift to a licensing rather than a sale model. Licensing came in partly to sidestep first sale (you can sell the media but not the license to the data on it) and partly because copyright had entered the picture because now the end user could easily make copies.

This could lead to a situation (with sale rather than licensing) where a person could legally sell the movie they bought on DVD but not the DVD. (They buy the movie - so they own it and first sale applies). But then what happens to the physical DVD that they still own? It contains the movie they no longer "own" (after all, they sold the movie) but they still have it because they have the DVD it's on.

That sounds like giving lawyers a license to print money.

The problem is simple: First sale was created with the idea that content and media are inseparable; copyright comes from the idea that content has value in and of itself separately from any media.

It's a mess.

[tompe]

Originally Posted by kennyc

And that is exactly at the core of it and what COPYRIGHT is about it has nothing to do with the physical item it's the RIGHT TO COPY, which is granted by law to the original creator of the item (whether a book, story, movie, music, ...).

Not it is not. The natural state is that everybody can copy including the creator. You do not need to be granted copyright as creator to be able to copy. Copyright is a set of EXLUSIVE rights that are granted to the creator. It is the "exclusive" part that is the important part.

[kennyc]

Originally Posted by tompe

Not it is not. The natural state is that everybody can copy including the creator. You do not need to be granted copyright as creator to be able to copy. Copyright is a set of EXLUSIVE rights that are granted to the creator. It is the "exclusive" part that is the important part.

The Creator of the work is the owner of the copyright. End of story. The law defines certain exemptions to others in copying or excerpting parts of the work.

There is no such thing as a "natural state" -- I can as easily say the natural state is that no one can copy. The only "natural state" is that if I create something it is mine, not yours, not anyone elses and I get to decide what I do with it. If you take it without my permission, you are a thief.

[luqmaninbmore]

Originally Posted by kennyc

The Creator of the work is the owner of the copyright. End of story. The law defines certain exemptions to others in copying or excerpting parts of the work.

There is no such thing as a "natural state" -- I can as easily say the natural state is that no one can copy. The only "natural state" is that if I create something it is mine, not yours, not anyone elses and I get to decide what I do with it. If you take it without my permission, you are a thief.

There is nothing natural at all about that. It's simply a social custom enacted into law according to the emerging mercantilist/capitalist mind set of the 17th and ensuing centuries. Chaucer would have no clue what on earth you were talking about. Copyright isn't even a factor in all legal/juridical systems of the present age. This is not to say that it may not, at times, serve a socially useful purpose (i.e. giving an incentive to create works of value to the populace). You can't, however, abstract a 'natural' right from a social convention which is justified by its utility. Or do you think that the right to a jury trial in civil matters amounting to more than 20 dollars (7th Amendment of the US Constitution) is a 'natural' right?

Luqman

[=X=]

Originally Posted by BooksForABuck

The first sale doctrine exists specifically because with paper books, the content and the media cannot be separated. Although you don't own the content, you own the package (the paper) and can sell the paper should you wish, assuming you've bought it legally in the first place. The logic of this doctrine does not apply to eBooks which are separate from the media on which they're displayed.

I dunno, the argument can be made that the file format you buy is the "package" since it is a tangable thing. To read a mobi book you must have the right reader.

For me the real issue is that digital media is easily duplicated where as the physical book is not so. I suspect if a technologgy existed where people could replicate paper books just as easily this law would be revisited

[Elfwreck]

Originally Posted by ecw0647

The cat is already out of the bag as "first-sale" disappeared years ago as it relates to software. All software is sold under license and if you read most EULAs you are prohibited from selling or giving it away.

The US courts decided that the EULA is irrelevant if the software is sold; the new owner still has the right to sell it. Vernor v. Autodesk established that whether the developer calls it a "license" or not, a sale is determined by the conditions of transfer--most notably, whether it's short-term or permanent.

If you hand over money for expected permanent possession of something, it's a "sale," regardless of what the terms-and-conditions documentation says. And you can resell something you've bought instead of licensed.

Reselling ebooks without making copies can be problematic--but could certainly be done; you could download them to your device & sell the device, or download them to a flash drive & sell that. The fact that you *could* make an unauthorized copy before selling doesn't affect your legal rights--after all, I *could* photocopy (or scan) all my books before reselling them, and nobody questions the right to sell used books.

[Xenophon]

Sorry I'm late to this thread. That said, Elfwreck's post just above is spot-on. According to US courts (and paraphrasing a bit, here): "If it looks like a sale, and smells like a sale... it's a sale! Regardless of what the EULA says."

And that's a darned good thing, too!

Xenophon

[DawnFalcon]

Originally Posted by kennyc

The Creator of the work is the owner of the copyright. End of story.

Only if he's not assigned it to the company he works for, which is true of most commercially useful copyrights. Honestly, this isn't complex and you seem to keep getting it wrong

Elfwreck - Right. And the right to return, resell and so on in the UK dosn't have any exemptions for eBooks (since they're not either programs or audio or video media, and if it looks like a sale, it's a sale in UK law...)

[Pardoz]

Originally Posted by kennyc

The Creator of the work is the owner of the copyright. End of story.

In law the reality is otherwise - or at least in law the person who did the creating isn't necessarily the "creator", legally speaking, as absurd as that is.

(And a copyright is a privilege reluctantly granted by the state because the evils of copyright were held to serve the public interest well enough to make copyright a tolerable evil. I know you already know that this is the case in the world outside your skull, this is just a PSA for others reading the thread.)

[kennyc]

Originally Posted by Pardoz

In law the reality is otherwise - or at least in law the person who did the creating isn't necessarily the "creator", legally speaking, as absurd as that is.

...

Wrong. The original creator is the owner of the copyright. If they assign or sell it to someone else then that someone else is the owner.

[Pardoz]

Originally Posted by kennyc

Wrong. The original creator is the owner of the copyright. If they assign or sell it to someone else then that someone else is the owner.

You're right that the "original creator" holds the copyright. The catch is that under a work-for-hire/corporate authorship contract the person doing the actual creative work is never, legally speaking, the creator. This is a separate issue from transfer of copyright.

[kennyc]

Originally Posted by Pardoz

You're right that the "original creator" holds the copyright. The catch is that under a work-for-hire/corporate authorship contract the person doing the actual creative work is never, legally speaking, the creator. This is a separate issue from transfer of copyright.

True if that is the case, but it has nothing to do with what we were "discussing."

You are attempting to spin the issue.

[Greg Anos]

For those of us who are not US citizens, and for those who are, here is a layman's guide to the US legal chain for first sale doctrine as applied to e-books.

(I am not a lawyer, this is my listing and interpretation...)

First US law structure. All law must conform to the US Constitution, as amend and added to by treaty, as interpret by the US Supreme Court. What the Supremes say, goes - period. The only way to override them is with a Constitutional Amendment. A long and arduous process. (Or get them to change their minds, which they hate to do...)

Here's the legal base...

The US Supreme Court has stated that First Sale Doctrine is valid (see Bauer & Cie. vs O'Donnel and Bobbs-Merrill vs. Straus). These were pre-digital days, so the information at question was not being duplicated, merely resold.

While not directly applicable, the Supreme Court ruled in the SONY Corp vs US (the Betamax decision) that time shifting was legal, and that just because a technology could be used for a copyright infringing use, did not mean that a technology should be blocked. However, this was time shifting, not format shifting.

Various district level rulings have held EULA to be sales, not licenses. However, there is no appellate decisions or Supreme decisions, either way.

(US court structure - district is the lowest. the next level is appellate, and finally the US Supreme court. Neither the appellate or Supreme court is required to rule on any particular case, they pick and choose which cases they deem worthy. Any ruling by any court applied only to the area covered by the court, so the district court ruling only apply to those districts. Either the appellate level refused to hear any appeals - unlikely - or the losing software companies didn't want the ruling to potentially apply to more areas than the District Courts where they lost.)

Once again, not directly applicable, but close, is section 117 of the copyright law, allowing software programs to be loading on relevant devices to execute them, allow archival backup and restores, and make copies of software to maintain or repair machines (if they are later deleted).

This lead to the issues of how different (legally) static data files are from executable programs, and the legal basis for DRM and the DCMA.

The DCMA is a legislative implementation of the WIPO Internet treaty. While the treaty has constitutional force in the US, the question of whether it overrides the First Sale or Betamax rulings (or the US free speech amendment) has not been ruled upon by the Supreme Court. (While ruling at lower levels have upheld it.)

Nor has format shifting been adjudicated, however there are others close rulings that suggest that format shifting would probably pass muster. However, this is an opinion, not a fact.

None of these rulings allow for dissemination, that is still a copyright violation. Whether acquiring a copy of a copyrighted work from a third party of which you already own a existing analog copy is still at issue. Finally, definition of a lawful copy is still not defined, despite widespread sales.

(This is not trivial. I purchase a data file X, from a legitimate purveyor of said data file. How can I prove that I purchased said data file, as opposed to a claim that the file was obtained in an infringing manner? the purveyor may no longer be in business, or have purged their purchase records. Since data files have no physical existence, I can't point to an object showing original purchase.)

[Pardoz]

Originally Posted by kennyc

You are attempting to spin the issue.

Eh? I'm pointing out that the person doing the creating isn't necessarily the legal creator, no more, no less. It's a fairly important legal distinction.