This WEEK in LAW 20
Guests: Colette Vogele, Ernie Svenson, Evan Brown, Ben Franske
Published: February 1st, 2009
iPodMeister and CD first sale doctrine, hiring tech-savvy lawyers, Obama's BlackBerry, and more.
Talking points: http://delicious.com/thisweekinlaw/20.
Legality of iPodMeister
Colette Vogele expands on the TWIL panel discussion on the legality of iPodMeister Her conclusion is iPodMeister would lose any U.S. copyright action that is brought against it.
Ben Franske's comment on the economic effects compromising the fair use rights to make a digital copy of the CD are important. Consider a world that contains 26 people. A is an artist who produces a CD, and sells it to B for $10. B make a digital copy - a fair use - and then to remove house clutter, sells the CD for $2 to a second-hand store run by Z. Z then sells the second-hand CD to C for $5 who makes a digital copy, and then sells it back to Z's store for $2. Z then sells it to D and so on.
At the end of this, A the artist will have sold one CD and received $10 (less any costs of production), B the original purchaser will have a digital copy for a net cost of $8, C to Y will also have a digital copy for a net cost of $3, and Z, the second-hand dealer will have the CD and made a net profit of $67.
So the scenario that Denise Howell practices, of keeping digital copies and selling her CDs second-hand can, in the extreme, mean no payment to the artist, significant payments to the second-hand stores, and everyone else owning a digital copy. That can't be justified by fair use.
Colette Vogele's article referenced above refers to this problem of the longevity of a fair-use copy. Denise makes a fair-use copy of her CD. Does it remain a fair-use copy after she sells the original CD? The market argument above, where everyone keeps a digital copy, suggests that for public-policy reasons the answer should be no. Would you argue that you could keep and use a backup copy of commercial software, when you have on-sold the original commercial software CD? That argument seems unsustainable.
Put simply "space-shifting" copying of a CD is a fair-use right of a product you own. Because you own it, you may do with it as you wish. Once you cease to own it, you may no longer do with it as you wish. After you sell your CD to your friend, you can't go a rip a fair-use copy of it. So why should you be able to keep the copy you made earlier. Does the fair-use copy expire? This has not been tested by the courts. It is unlikely that a court would find that the fair-use rights exist indefinitely, and continue after the originating source of the right - ownership of the CD - has ended.
Colette also dispatches the relevance of the "right of first sale" doctrine, noting that it relates to distribution rights, and not reproduction rights.
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