How a Fight Over Star Wars Download Codes Could Reshape Copyright Law (arstechnica.com)

An anonymous reader quotes a report from Ars Technica: A federal judge in California has rejected Disney's effort to stop Redbox from reselling download codes of popular Disney titles like Frozen, Beauty and the Beast, and the latest Star Wars movies. Judge Dean Pregerson's Tuesday ruling invoked the little-used doctrine of copyright misuse, which holds that a copyright holder loses the right to enforce a copyright if the copyright is being abused. Pregerson faulted Disney for tying digital download codes to physical ownership of discs, a practice that he argued ran afoul of copyright's first sale doctrine, which guarantees customers the right to resell used DVDs.

If the ruling were upheld on appeal, it would have sweeping implications. It could potentially force Hollywood studios to stop bundling digital download codes with physical DVDs and force video game companies to rethink their own practices. But James Grimmelmann, a copyright scholar at Cornell Law School, is skeptical that the ruling will survive an inevitable appeal from Disney. "I don't see this one sticking," Grimmelmann told Ars. Copyright misuse has such sweeping legal implications that an appeals court will be reluctant to apply it to a common movie industry practice.

Comments

Well Fuck Me Up The Ass

[Frosty Piss]

Copyright misuse has such sweeping legal implications that an appeals court will be reluctant to apply it to a common movie industry practice.

The Appeals Court: "It's so common that consumers are getting fucked up the ass, we see no compelling reason to change this established practice."

Re:Fucking Disney...

[Lunix Nutcase]

Copyright misuse is not a crime and never has been so there is no crime to charge them.

Re:I think it might stick

[dgatwood]

They absolutely can prevent transfer of a license. The license is obtained by entering the code into a website, and that code is usable only once. That's not where Disney's argument falls apart from a legal perspective.

The problem with Disney's argument is that their reasoning, when applied to slightly different situations, results in a legal interpretation that fails the common sense test. Consider three scenarios:

• Case 1: You buy a DVD for $10. You use the code, and keep it, because it is nontransferable. However, you sell me the DVD for $5 because you don't need it, according to your right of first sale.
• Case 2: I buy a DVD for $10. I sell you the code from that DVD for $5. The company claims that I'm not allowed to sell the code to someone who is not the original buyer.
• Case 3: I buy a DVD for $10 and sell it unopened to you for $10, which is my right (first sale again). You open it, use the code, and sell back the disc to me for $5.

In all three cases, the result is the same: I have a DVD and you have an electronic copy, and we each spent $5.

Nothing in Title 17 could plausibly explain why only one of these three transactions is legal, given that the end result and process are effectively identical except for trivial accounting differences. Such a requirement completely fails to stand up to the slightest bit of logical scrutiny, and any legal code that would result in such an outcome would have to be patently absurd.

Now the question of whether the second person (being not the original buyer) has the right to *use* the code is another question, but if you apply the same reductio ad absurdum to that, you get the same results.

So the correct question is not whether the judge's decision is correct — it very clearly is — but whether the particular path to that conclusion will survive appeal or will be replaced with a different path to the same inevitable conclusion.

You really have to wonder what Disney's lawyers were smoking to have believed that they could pull this off. IMO, it isn't just clear-cut legally; it is *laughably* so.