Today, a group of public interest organizations, including Public Knowledge, launched a petition asking the Obama administration to affirm the concept of ownership rights—the idea that consumers should actually fully own the things that they buy.
This may seem like a fairly obvious concept not in need of affirming, but the fact of the matter is that increasingly bizarre interpretations of copyright law threaten to make it illegal for you to sell, lend, or give away many of the things you own.
The most immediate example if this is the case of Kirtsaeng v. Wiley & Sons, Inc.. The Supreme Court has agreed to review an appellate court’s decision that any goods made outside of the United States that contain copyrighted works can’t be distributed within the U.S. without the permission of the copyright holder. That doesn’t just mean that it prevents imports without permission. It means that, even after a book, DVD, or iPad has legally entered the country, any further distribution of that object infringes copyright law.
I’ll be discussing some of the particular intricacies of Kirtsaeng in a later post (or you can see some of our earlier coverage here, here, or here), but one central point is that copyright law doesn’t just prevent the copying of creative works, it prevents their distribution. The idea is that only the copyright holder has the right to sell, lend, or give away copies of her works.
Taken to its logical conclusion, though, this would prevent the existence of independent bookstores, DVD rentals, or even just giving away copyrighted works as gifts. Even packaging has copyrighted material on it. So that box of Swiss chocolates, or that shampoo bottle made in China become illegal or not, at the whim of the manufacturer. To prevent this, we have the first sale doctrine, which says that if you own a particular copy of a copyrighted work was made legally, you don’t have to get permission from the copyright holder to distribute it.
What makes first sale such a centrally important part of copyright law is that it reconciles copyright law with the fundamental laws (and our natural understanding) of personal property. It’s not some strange exception to copyright laws; it actually makes sure that I own my books the same way that I own my coffee cups; that I’m as much in control of my aging collection of CDs as I am of my aging collection of socks. In the same way that fair use ensures that the more basic rights of free speech aren’t overridden by copyright, first sale makes sure that our basic rights to personal property aren’t superseded by copyright, either.
Kirtsaeng threatens this by saying that the first sale doctrine doesn’t apply to copies made outside of the U.S. But Kirtsaeng isn’t the only threat to consumers’ ability to own media. Any digital media, from software to digital music, movies, and books, has to be copied in order to even be used. So just reading your ebook means you’re making a reproduction. Copyright holders can leverage that necessary copying to hold restrictive license terms over your head. And if you want to sell or give away that ebook, or that mp3? Plenty of copyright holders will argue that sending that digital file to a friend is making a copy, and therefore infringement—even if you delete your copy upon sending.
Add the likelihood of restrictive DRM on top of digital goods (and laws that make it illegal to break that DRM, even if it’s for a legal purpose), and we have a whole system of growing restrictions on how we can use the media that we’ve already bought. As more and more media is born digital, our ability to have our own libraries and collections of creative works becomes eroded; our access to these works comes at a higher price. Maybe that higher price isn’t monetary, but the costs can come in the form of arbitrary denial of access to works, or a surrendering of privacy as to what we’re reading, watching, and listening to.
Even without getting into the gritty details of how section 106 of the Copyright Act interacts with sections 109, 602, 117, or 1201, we need to recognize that intellectual property wasn’t meant to, and shouldn’t, trump actual property. And that’s the message we want the administration to understand. Help send that message by signing the petition here.