Coming Ruling Seen As Way Out Of 'First-Sale' Confusion
Lecturer and executive director of the Fair Use Project Anthony Falzone is quoted in Consumer Electronics Daily News on the "first sale doctrine." Louis Trager filed this story:
A coming federal appeals court ruling offers hope for clearing up a legal morass involving the "first sale doctrine," which defines the rights that the Copyright Act gives those who lawfully acquire entertainment and other works, experts said. But there's no telling how long the three 9th U.S. Circuit Court of Appeals judges who heard arguments last month will take to decide the cases, said lawyers, including participants in the cases, late Tuesday at a Bar Association of San Francisco seminar. The cases concern applying the first-sale doctrine to the World of Warcraft videogame and to productivity software and promotional music on CDs. In any event, buyers of purely digital works, not on physical media, can't make use of the right as it's written, the speakers said.
"The courts really cannot sort out who owns a copy of a copyrighted work," said Brian Carver, an assistant professor at the University of California, Berkeley's School of Information. Courts have taken four to six approaches, depending on how they're classified, to challenges by rights owners to actions by customers that Section 109 of the copyright statute seems to allow but that violate stated sales terms, he said. "There has been just a lot of logical confusion in these cases."
The digital revolution has thrown first sale into an "identity crisis," said Tony Falzone, executive director of Stanford Law School's Fair Use Project. Section 109 is "inadequate when it comes to building a digital library," because that requires duplicating copyrighted works, and the first-sale doctrine doesn't go that far in limiting content owners' rights, he said.
"It's really hard to claim that you're doing any harm" to copyright's underlying policy of encouraging creativity by allowing a business like Augusto's, Falzone said. But "Vernor gets a little harder" to decide against the rights holder, and MDY really "starts to get a little tough," because it involves Blizzard's effort to protect the integrity of its game, he said.