The phrase “you bought it, you own it,” sounds simple enough, but it turns out that this raises a lot of tricky issues when “it” is a digital good.
One area getting an increasing amount of attention in copyright reform conversations is: How should copyright’s first sale doctrine – your right to sell or otherwise do what you want with your own copy of a work – apply to digital copies? Academics and advocates have been writing about the issue for a few years, and the U.S. Commerce Department is looking into it through an Internet Policy Task Force. In comments my organization – the Center for Democracy & Technology – made to the task force late last year, we laid out the issues as we see them and offered some starting suggestions for figuring out what a digital first sale doctrine should look like.
(For some other troubling issues in this area, read this post by the Electronic Frontier Foundation, and one from Public Knowledge that explores end-user agreements and whether you really own your software.)
Undoubtedly, the first sale doctrine carries substantial benefits to users of copyrighted works.
- First and foremost, it’s what enables secondary markets like rental markets, secondhand stores, and hand-me-downs to offer innovative, lower-cost ways to access copyrighted works.
- It preserves the accessibility of older, rare works that are harder to find new.
- It limits rightsholders’ control over how people engage with their works – how to frame or display an artwork or in what order to read short stories.
- It can promote privacy by limiting publishers’ knowledge of who buys what works from secondary markets.
- It reduces lock-in to particular technological platforms For some, the option to resell vinyl records, for instance, may have helped offset the costs of upgrading to CDs.
Clearly, for these benefits to simply fade away would be a big loss. Yet first sale, as it now exists, doesn’t apply when new copies are created, and digital resale usually requires making a new copy of the work in question.
Digital marketplaces may be able to replicate some of the benefits listed above without relying on the first sale doctrine, but they cannot fully replicate all of them. For example, you can lend titles on some e-book platforms, but not all titles, and the number and duration of allowable loans is typically limited by the publisher. Without the first sale doctrine, the benefits of preserving access may be lost entirely. If a work’s original distributor goes out of business, no one would have the right to keep it circulating in secondary markets.
That Awkward Digital Moment
These and some other examples we discuss in our comments suggest that first sale should be carried forward to apply to digital goods. At the same time, however, there are growing business models for digital content where first sale seems an awkward fit. The growth of subscription services for music and movies suggests that, in some respects, consumers’ access to works need not involve ownership at all. And it would be unwise for an all-or-nothing solution to the digital first sale conundrum to force distribution through ownership models exclusively.
So the challenge for policymakers is to find ways to achieve digital first sale without foreclosing business models where it does not fit. CDT suggested to the task force that it would be useful to develop criteria for distinguishing those scenarios where it would be appropriate to extend first sale principles from those where it would not. For example, a digital first sale rule should not try to restrain all non-purchase business models. But it makes sense for the regime to recognize a “forward and delete” approach, applying first sale to digital purchases even where resale requires making a copy, so long as the original is deleted.
Others may have other criteria to suggest. Whatever they may be, ideally the end result will be a regime for the digital environment that captures the benefits of first sale in the offline world, but that is perhaps more nuanced and carefully tailored in its application than an all-or-nothing approach.
Andrew McDiarmid is a Senior Policy Analyst for the Center for Democracy & Technology. This piece first appeared on CDT’s PolicyBeta blog.