Does First Sale Still Exists?

3-State Bit asks: "Ah, the doctrine of First Sale. (Sources two, three, and especially, four). The last bastion of fair use. Or is it? In a highly insightful comment, user Kjella explained to me that I had been naive to think that First Sale would continue to exist in the world of DRM. (Of which I had pondered the ramifications here.) So Slashdot, where does the First Sale doctrine stand? Are libraries throughout the nation in jeopardy? Will they no longer carry digital media? Can a corporation, without any form of legal safeguard, really control whom I can sell my stuff to? It's enough to make you shudder."

Comments

Re:Copyright licensing versus Sale

[Twylite]

Bullshit. Read the history of Copyright, and you'll find that the name is a complete misnomer, and doesn't represent the rights nor the intended rights of the law.

Copyright is intended to reserve to the holder the rights of publication. That's it. It was also formulated to apply to written works, which is why it dealt specifically with publication. The act of publication combines reproduction and distribution, and usually commerce. The intent was to allow the copyright holder control over the more powerful groups which were able to publish.

The question of copying was never intended to be part of copyright law. Copying does not hurt anyone in the chain so long as there is no associated distribution. A million CDs in your basement doesn't hurt the musician until you attempt to distribute those CDs.

The whole issue is whether or not you buy anything. When you "buy" software, have you really bought it? Current legal opinion says no - you are restricted by the license, because those are the terms on which the copyright holder is prepared to grant you permission to enjoy his/her rights. Can you transfer the rights you are granted under that license? Yes, unless the license forbids it, in which case no.

So what makes software any different from musical or literary works? Is there anything which stops a musician or author placing a restrictive license on their work? In all likelihood, no. Copyright law does not say they have to sell a license; it doesn't even say they have to grant licenses.

IF they choose to grant licenses, they may grant any combination of their rights they please, and they may subject you to a legally binding contract. A sale, for your information, is a legally binding contract. So is a service contract which permits limited repetition or limited duration use of a work.

So tell me, when you buy a CD, what rights do you acquire? Well common law says that you can do whatever you want with the physical media, because ownership has transferred to you. But intellectual property rights still apply irrespective of the physical media. Common law will then say that any fair use of the CD is game.

Since the intended use of a CD is arguably to be played so you can listen to music, its safe to assume your purchase gives you that right. Resale? Maybe. Copyright provides that any non-exclusive license granted by the holder may be revoked at any time (scary huh?), which raises some interesting legal problems: the holder's responsibility if (s)he revokes the license is to refund any amount you paid, possibly less pro-rata use of the content, since this is a common law approach to recalled products. Note that the responsibility is to YOU. If you have sold your CD to a third party, the contract (and license) is not necessarily transferred to the third party (in the same way that warranties normally only apply to the first owner). While you can sell a second hand washing machine without passing on the warranty, you can't sell a second hand CD without passing on the content.

In a simple world, you could buy a CD, and it would be yours. We don't live in a simple world.

Re:Unless EULAs are struck down, First Sale is dea

[bwt]

That claim is made with respect to software, but not with respect to DVD's. There is no "licence" on a DVD.

The current state of EULA enforcement is very evenly divided. The 5th and 3rd Circuits have ruled EULAs are not enforcable. The 7th and Federal Circuits have ruled they are enforcable (the Fed Circuit case is being appealed -- we'll see). The 9th Circuit hasn't squarely addressed the issue, but "good" precedent exists there to draw from -- a bankruptcy case there says "manifest assent" is required to form a contract, and the recent Adobe v Softman district court case ruled that the transactions to retailers are "sales". This doesn't settle the issue, but it certainly puts clouds in the "licence" crowds sky.