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Better clear out your library while you can

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For over a century it’s been considered settled law that one you have bought a copy of a copyrighted work, you own that copy and can resell it, give it away, or lend it. The Copyright Act of 1976 explicitly allows this. This allows libraries and used bookstores to thrive, and allows a much wider access to books, music, and other creative works.
 
But content creators have been trying for years to find ways to block such resales, forcing every person to buy their own copy: software and downloadable music routinely requires user to check off a click-through agreement or “shrink-wrap license” in order to use the item they bought. But the legal status of such agreements has been murky.
 

A federal appeals court said Friday that software makers can use shrink-wrap and click-wrap licenses to forbid the transfer or resale of their wares, an apparent gutting of the so-called first-sale doctrine.

The first-sale doctrine is an affirmative defense to copyright infringement that allows legitimate owners of copies of copyrighted works to resell those copies. That defense, the court said, is “unavailable to those who are only licensed to use their copies of copyrighted works.” (.pdf)

The 3-0 decision by the 9th U.S. Circuit Court of Appeal, if it stands, means copyright owners may prohibit the resale of their wares by inserting clauses in their sales agreements.

The defendant in question was an eBay vendor who bought brand-new, shrink-wrapped software at garage sales and resold it on his eBay storefront. Since the software hadn’t been opened, there’s no way to argue that he agreed to the shrink-wrap agreement, which usually has verbiage like “by breaking this seal, you agree to…”. The appeals court ruled that the licensing agreement applied in this case anyway.
 
This is more than a little scary. How long before books routinely come with a notice on their back cover saying you’re not actually buying the book, but buying a license to read its contents, and can’t resell it without permission from the publisher? Same with sheet music, CDs, DVDs, and all other intellectual property. If this ruling is upheld on appeal (and it likely will be, considering the current makeup of the Supreme Court), used bookstores will probably be out of business within a few years. 
 
If you’re planning to clear out your old music library, better hurry up.

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Comments

  1. Well, the simplest way to deal with this issue is to boycott composers and publishers that don’t allow it. There’s enough good choral music out there that isn’t under the strangle-hold of larger corprate structures. Maybe we should all simply visit CDPL and perform more early music…

  2. Ah yes, the “borrowning” controversy–I remember it well. However, what I remember is that it was some smaller publishers who got their “panties in a bunch” (and I’m not being sexist, as some of them were male). When I solicited an opinion from someone I knew in the choral department at Hal Leonard, they said that they actually *supported* the lending/borrowing of their music, because of the exposure that the music received when performed more (as opposed to sitting on a shelf getting dusty) and the eventual money they made on selling replacments for the copies that had gotten lost or worn out through additional use. That was in direct contradiction to the assumption that the publishers didn’t like the practice, so you just can’t assume about this sort ot thing.

  3. It could easily go the “race to the bottom” route. All it takes is one publisher to decide to put a “purchaser agreement” on their books, and all the other publishers feel they have to follow suit to protect their competitiveness. Just like charging for luggage on airlines.
     
    But you know well that publishers have tried for years to block lending and resales of their works; it was only a few years ago that we had a big confab on ChoralNet as the music publishers tried to convince us not to allow borrowing requests on Choralist on the grounds of their being “unethical.”

  4. Now before we all get up in arms, I got some straight facts from a lawyer in our region. First, it only applies to the Ninth Circuit, second, it’s a particular issue out of California where copyright holder rights tend to take precedent because it’s where most of the performing arts and software industries are headquartered, and third, it is only an appellate level and not Supreme Court level case. Let’s wait to see if this goes any further before we all go selling our old chestnuts and vintage music.

  5. Not sure I’d agree with your “sky is falling” generalization of this specific case to things like used books and music, Allen. I think the key word (and a VERY significant one) is “may.” To me, that doesn’t imply that anyone actually “will.”
     
    Peace,
    David T

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