The First Sale doctrine is one of those modest little sub-paragraphs buried in the copyright law whose importance far outweighs its length. It says, in brief, that you own what you’ve bought. Couldn’t be more obvious, right? Think again. There’s a reason it ended up in the copyright statute.
Vernor v. Autodesk is a case with wide implications, so I’m going to quote at length:
Today, Public Knowledge, Electronic Frontier Foundation, and a coalition of consumer and library groups filed a friend of the court brief before the Ninth Circuit Court of Appeals in a case devoted to protecting the first sale doctrine.
In Vernor v. Autodesk, Timothy Vernor bought four copies of AutoCAD software from a design firm that was having an office sale. Vernor then put the disks up for sale on eBay. Autodesk, the publishers of AutoCAD, complained to eBay, claiming that the sale of the software was an infringement of its copyrights getting the listing taken down and eventually getting Vernor kicked off of eBay. Vernor then went to court to have a judge declare that his sale of the software he had bought didn’t infringe Autodesk’s copyrights.
If I were to put my old copy of Harry Potter and the Order of the Phoenix up for auction on eBay, Scholastic, the publisher, would have absolutely no right to tell me otherwise. So what makes Vernor’s case different?
Well, from our perspective, not too much. But Autodesk’s software comes along with a fine-print “License Agreement” which, among other things, tells whoever buys it that they haven’t actually bought it. As in, the software that you paid money for isn’t yours. Instead, the agreement says that you’ve only bought a license to use the software.
This might at first seem like a pointless bit of semantics. Whether I’m buying the software or buying the right to use it, I’m still paying money and I’m still using software. Except that this software is copyrighted. If I buy something outright, I have the right to sell it to someone else. The same thing is true for copyrighted works—but only because of a particular feature of copyright law: the first sale doctrine.
How many times have you ripped a CD to your computer, and then given the CD away? Think about it. Unlike a book you finish and give away, which you then don’t have and can’t read, there are now two copies of those songs — you still have them on your computer and can listen to them, even after giving the CD away. In short, it’s a very different situation when a book/music/content is digital.
As everything goes digital, our First Sale rights will be challenged, and endangered. We may be left with no right to own our own copies of content we purchase. It will all be rented, time defined, non-transferable, and impossible to migrate or update — or preserve. Amazon may end up with your marginal notes to an e-book, which you can no longer access.
Scary? Or just bizarre and we’ll have to get used to it?
