On copyright law

I think we’re fast approaching a major upheaval in copyright law. There is a point in which we have major conflict between law and practice. Here in the US this means either the law gets modified or it becomes mooted. For an example of mooting I can think of nothing so obvious as speed limits. I know of nobody personally who does not speed – not necessarily all the time, but some of the time in some places. (In Georgia the law is actually written, now, that if you’re detected at less than five miles an hour over the speed limit a ticket cannot be issued – but if you’re fast enough they can ticket you the ticket is based on the posted, not the gray area, speed. In other words, “Yeah, this is the law on how fast you can go, but we’ll look away as long as you don’t go too much over it.) For an example of what people do forcing the law to change, see the history of slavery in the US.

Note that the law CAN win, but it takes dedicated and comprehensive enforcement. That’s why those who favored making abortions legal won in the US – too many weren’t being enforced because the daughters/wives were “of family”, and we started seeing pictures of the consequences of those who weren’t able to have a dozen appendectomies meeting coathangers in desperation, and as a consequence the people who had to enforce it (not just law enforcement) started looking the other way. The dead fetus images the current anti’s use are shocking. So were the images used by the pro’s back when. Both work. Add that “This means you may have to put your daughter in jail,” and, well, we know who has won so far. But I digress.

The first and more obvious conflict is in the realm of ‘who owns the product.’ It is in simple a revisitation of the ‘right of first sale’. The doctrine was first espoused in Bobbs-Merrill Co. v. Straus and has been refined a bit since. In very simplistic terms, once you’ve purchased it the original producer has no say in what you do with it. Slightly more refined, the original producer has no say in whether nor at what price you resell the product. It does not give you the right to copy and sell multiples, it just gives you total control of the single item you have legally obtained. Eventually this was codified into the Copyright act itself.

But there was a snag when computers became a bit more common. Actually it started with videotapes, but got really wild with computers. Producers lost when they tried to control rental prices of videotapes (they might be used as basis for copies, and besides a lot of people are going to pay to see these but we’re getting none of that money). Then in the computer age we got “licenses” and for quite some time those got upheld. Well, they got upheld until a recent case that deserves a lot of attention. Timothy S. Vernor v. Autodesk Inc. had a federal judge tell a company that ONLY licensed its products that this didn’t matter – that the license wasn’t that so much as it was an attempt to get around the right of first sale.

That said, things have gone the other way for downloadable content. Courts have so far supported the idea that downloaded movies and music have restrictions – that they’re limited in ability to move to another system, whether one belonging to the original purchaser or to another user’s system. This, then, is where our major point of conflict exists.

The recent Kindle embarrassment may be the lighting of the fuze for this change. For those who don’t recall, Amazon has been able to remove or modify purchased material that was on the Kindles. This came to the news when some of George Orwell’s books (of particular irony 1984) were removed without notice. Yes, the purchasers were reimbursed, but it doesn’t change the impact.

If a book company prints and sells some books and then discovers it didn’t have the right to do that it creates problems – you can’t unscramble the egg. Amazon is claiming the right to do this, however, if the item is electronically published. It’s not an easy decision in law, but there’s one critical thing that probably clinches that this will (should) be another fall to the first sale doctrine. A few people who’d purchased the item had moved them to some memory cards. When the story broke about the removal, they acted to preserve their copies. This runs into DMCA which prevents modification of software, but it doesn’t change one simple fact: Amazon didn’t unscramble the egg.

Because you can’t unscramble the egg, I think we’ll wind up with laws that say downloaded products are subject to the first sale doctrine.

But what if we don’t? What if courts and lawmakers decide that it doesn’t apply for this sort of issue? Well, then we make the law moot. Put simply, a lot more people will become “pirates”. We’ll see unspoken and eventually codified ‘gray areas’. “Well, if you only download so many GB we’re going to leave you alone, but if you go over it’s all going to count against you.” Anybody who’s played competitive games or who has had to deal with children knows the next step – – everybody games the system to get as much (or more than) as allowed. At that point we run into a generation or so of the entire copyright system under assault because if part is considered absurd, that opinion bleeds to other elements.

At which point we’re back to wondering – is it going to be enforced like civil rights or like speed limits? My bet is the latter – IF it’s not changed in the first place. But it will be an interesting ride.

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