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Court Rules That Books On Tape Can Be Rented Without Copyright Owner's Permission
from the good-decisions dept
The right of first sale is an important feature of copyright law that doesn't get that much attention. Since copyright has fundamentally different characteristics than traditional property, questions have arisen concerning whether things that you can do with tangible property also apply to copyrighted creative works. So, for example, if I buy a chair from the guy who built a chair, I can legally resell that chair without getting permission from the guy who made it. However, if I buy copyrighted content from someone, can I then resell that content the same way I could resell that chair? The right of first sale says that, in most cases, I can -- assuming, of course, that I haven't just sold the content, but also gotten rid of any copies I own as well. Of course, in most cases, content owners have now gotten around this by not selling you content, but merely licensing you the use of their content under very limited terms. Either that, or they've put in place technical measures, such as DRM, that make it effectively impossible to exercise your right of first sale. There are some areas where the right of first sale still matters. In fact, it's an issue that's been fought about in some areas, such as when the UK discussed banning the right of first sale on artwork -- meaning that any sale of a particular piece of artwork (even after it was sold initially) needed to have the approval of the artist.
Back in the US, there was recently a case that looked at first sale doctrine as it relates to audio books. William Patry explains the decision found that there's no copyright violation in renting out audio books without first getting the copyright holder's permission. The law has banned that right for music and computer software -- but since the law doesn't clearly describe audio books as well, the court found that it was not exempt from right of first sale coverage. This is definitely a good decision -- though, it wouldn't be surprising to see publishers now freak out about this and push for more explicit language to be added to the law at some point.
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What is appaling here is that the right of first sale is actually suspended for anything. That should be changed. If the right of first sale does not exist for computer software or music, then my local video game rental store and my library are potentially both in violation of a law that should not exist.
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Rental Audiobooks
Before there was a public internet, my wife and I operated an audiobook rental store. It took a few months to catch on, but it was a great business in a city where so many people commuted each day.
Back then, when publishers learned about the business, they couldn't wait to do business with us. They knew that rentals often lead to sell-through, and we were quite happy to sell our customer the tapes, even after they rented them.
It was a wonderful business, and my customers were the best. So, if I still had the business now, it seems the publishing industry would be more than happy to put me out of business along with the other audiobook stores around the US.
They must have hired the RIAA as their representatives.
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good decisions dept?
Why is it "good" when someone rips off what is intended for library use? In the case, the copyright owner distributed two versions of the same audiobook - one for retail and one for lending libraries. The defendant bought the cheaper version, and repackaged it as the one with the permission to lend. Why should that be thought of as "good"? If the result is that audiobooks can't be provided to lending libraries, without someone cutting in on the deal to their own benefit, then how does that help libraries and promote the public good for those who use libraries?
It's not about whether the first sale doctrine is good or bad (it's good), but about whether the law expressly prohibits repackaging and redistributing copies of another's copyrighted work to benefit oneself.
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"Why is it "good" when someone rips off what is intended for library use?"
Er, "rips off?". Nothing rip off about it. The case involves legally purchased audiobooks. The question is whether audio books can be rented out and/or resold like books and videos or not. The court's answer is yes they can.
First sale is the only reason that used book stores exist and it is the primary reason that video rental stores exist. Without first purchase you couldn't sell your used books legally. First sale is good for consumers with no downside for consumers.
The copyright maximalists don't want consumers to own anything and they want the secondary market for books, videos and music gone. Corporations want you, essentially, to temporarily rent all of your content so that everyone has to buy (rent) it new from them and so they can create artificial scarcity to control pricing. There is no reason for consumers to dislike the right of first purchase.
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You are confusing the right of First Sale with the
If you look at USC17, Sec 109, the right of first sale clearly permits selling the material, and clearly forbids renting the material.
Selling the material does not deprive the author of their rights; one person merely transfers to another, and is not laden with something he no longer needs.
Renting is a viable income process, however, and doing so deprives the author of same.
"Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. ...
"Notwithstanding the provisions of subsection (a), unless authorized by the owners of copyright in the sound recording or the owner of copyright in a computer program (including any tape, disk, or other medium embodying such program), and in the case of a sound recording in the musical works embodied therein, neither the owner of a particular phonorecord nor any person in possession of a particular copy of a computer program (including any tape, disk, or other medium embodying such program), may, for the purposes of direct or indirect commercial advantage, dispose of, or authorize the disposal of, the possession of that phonorecord or computer program (including any tape, disk, or other medium embodying such program) by rental, lease, or lending, or by any other act or practice in the nature of rental, lease, or lending."
Or, as I more succinctly put in my poetic treatment of the copyright code:
"You can always sell off
What you've legally bought, honey
But you can't lease or rent it
If you're doing it for money"
Yehuda
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Reading statutes
Yehuda:
I think you are misreading the statute. The general rule is you can rent a lawfully made copy. The exceptions to the general rule are two and set forth in the "Notwithstanding" language: computer programs and musical works. Literary works don't tape fit into neither category.
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Bill,
I think you are misreading the statute.
That is entirely probable.
Yehuda
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Re: don't want to break the law
Hey there - can you all help me on this one?
I am a public librarian and I don't want to break the copyright law.
There was a standing practice at our library to purchase CDROM software and then lend it out and I have put the skids on that one - without multiple use licenses I think it is against the copyright restrictions. But I don't find the same copyright restrictions inserts on video games - so we lend those out fine.
But we don't get copyright inserts one the music CD's - but this article makes me re-think that one. You mean all this time we are breaking the law by lending music CD's?
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Copyright infringements
I would like to ask you if the following statement is true:
Once a copyright holder sells an item (in this case a phonorecord CD) at retail price the license to that item transfers to the possessor and they have a right to listen to it, transfer it, or sell it at any price they see fit.
This means that somebody can buy a lot of music CDS and reselling wihotou infringement of the Copyrights? Does the first sale doctrine mean I can re-sell music CDS?
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Renting books-on-tape
I'm confused. If I purchase a book-on-tape then, say duplicate it on CD's. Can I rent the CD's to the public without paying a copyright fee?
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