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There’s something about sharing a beloved book, CD, or movie with a friend. Not only you do you get to share something you enjoyed, but it increases the social nature of media, sparking discussions and expanding horizons.
Unfortunately, the days of sharing media are disappearing. As digital distribution models proliferate, options for sharing books, software, CDs, and even video games are increasingly limited. It started with iTunes limiting the number of computers linked to a single account and continued with Amazon limiting users’ ability to share Kindle books between devices. The movement to restrict consumer rights to control their media purchases is apparent in services like Ultra-Violet, which tie movie purchases to a user-specific Flixster account.
The latest salvo came from Sony and Microsoft, who recently announced plans for the successors of the popular Playstation 3 and Xbox 360 video game consoles. Sony recently filed patents for technology which would use RF tags to prevent sales of secondhand games. Microsoft plans to require a constant internet connection to prevent sharing of games.
Obviously this makes business sense: used video game sales are at least $250 million a year. Figures for used CDs are unavailable but the music industry worried enough about them to justify lobbying for laws restricting their sales.
Yet while digital distribution has certainly improved access to media, at what cost have these gains come? As companies continue to focus on reducing secondhand sales and restricting lending, the first-sale doctrine—which allows consumers to lend, sell, destroy, and give away products they buy—may disappear.
In fact, the Supreme Court is currently considering a case, Kirtsaeng v. John Wiley & Sons, Inc., which may significantly reduce the power of consumers to control products that they’ve purchased. The defendant, a Thai national, noticed that the textbooks he was required to buy at Cornell were must costlier than similar textbooks sold in Thailand. In order to subsidize his education, he legally bought books in Thailand and resold them in the United States. The publishers have sought damages and an injunction to stop the resale of these “grey market” copies of their textbooks.
At question is § 109(a) of the Copyright Act, which codified the first sale doctrine: “Notwithstanding the provisions of Section 106(3), the owner of a particular copy . . . lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell . . . that copy.”
Plaintiffs argue that, because the textbooks were purchased in Thailand—outside the reach of the Copyright Act—the books were not “lawfully made” under the act (even though the textbooks are manufactured and sold by a company licensed by the copyright holder). Moreover, allowing people like Kirtsaeng to profit off of international arbitrage would hurt the ability of publishers to profitably provide textbooks.
The last time a similar case came before the Court, it split 4-4 (with Justice Kagan not participating). While it would certainly be a big blow to consumer rights if the Court limited the first-sale doctrine, will digital downloads eliminate the doctrine regardless? Should there be more concern about consumer rights, and should courts follow the lead of the European Union Court of Justice in UsedSoft v. Oracle, where it laid out a “first download doctrine” which would expand consumer rights in purchased software? Do consumers even care about owning media anymore? Share your thoughts in the comments.