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When President Obama recently visited Queen Elizabeth, he came bearing gifts, including an iPod loaded with Broadway songs. This seems harmless enough, but Fred von Lohmann at the Electronic Frontier Foundation (EFF) has pointed out that the president may have unwittingly committed copyright infringement.
The problem has to do with the first sale doctrine and the lack of clarity concerning how it applies in a digital world. We know that we are allowed to sell something once we own it–that used book you bought on eBay may have changed hands ten times before you got it, which makes perfect sense since you are dealing with a single, physical copy of the book. The same applies to CDs. But what about MP3s? When you put a song on your iPod, you are creating a copy rather than physically transferring the song. In other words, if I put a copy of “Music of the Night” onto an iPod and give that iPod to the queen, I still have the song on my computer. This raises a series of questions. If I legally purchase the soundtrack to Phantom of the Opera from iTunes, am I allowed to give it away–even if it’s just to one person as opposed to everyone on a file-sharing network? Does it matter if I never listen to it again? Do I have to delete it from my computer? After all, music can be a fantastic gift, evidenced by the delicate art of creating a mix tape. If peer-to-peer file-sharers are “pirates,” then are these gift-givers as well?
Actually, EFF has already litigated a first sale issue with respect to promo CDs; are you allowed to sell those CDs with “not for resale” stamped on them? The Central District of California thinks that you can, but Universal Music Group has appealed to the Ninth Circuit. Though the facts are a bit more sympathetic than digital copying, the defendant’s invocation of Harry Potter does provide an interesting counterpoint to the first sale doctrine. Says Bill Weasley to Harry in Harry Potter and the Deathly Hallows, “To a goblin, the rightful and true master of any object is the maker, not the purchaser. All goblin-made objects are, in goblin eyes, rightfully theirs . . . . They consider our habit of keeping goblin-made objects, passing them from wizard to wizard without further payment, little more than theft.” So really, in the realm of digital content, it seems that we’ve moved from “owning” to “licensing,” and have become nothing more than a world of goblins.
The issue isn’t whether President Obama did anything wrong (especially since, considering who he is, he could feasibly even license the songs directly from the record label), or even if the music industry would be “goblins” for suggesting otherwise–but simply the fact that the law is so unclear on the issue. As von Lohmann pointed out, when there doesn’t seem to be an answer to the question, it may mean that the laws are broken. After all, it seems intuitive that there’s nothing wrong with the gift of an iPod with a few songs on it, but consider this business model: (1) purchase $1000 worth of songs from iTunes, (2) load the songs onto a $200 iPod, (3) sell the fully loaded iPod on eBay or a similar venue for $400, (4) load the same songs onto another iPod, and (5) rinse and repeat until profit. For every digital copyright question where the law is unclear, there is usually both a sympathetic and troubling fact pattern.
And especially considering that a new study suggests that kids today are growing up without proper moral intuitions about the Internet, it will probably be extremely helpful when the law catches up to technology and provides some clear answers on this kind of behavior. It kind of makes me long for the old days–when kids slipping CDs under their jackets at Tower Records at least knew they were stealing.
– Casey Fiesler
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