The US Supreme Court is hearing an appeal that could change your ownership rights to music.
If you purchase music as physical media or license-free downloads, you are protected by the so-called First Sale Doctrine of the US Copyright Act, which gives people the right to lend, resell, or give away the works that they’ve bought, even if those works contain copyrighted elements.
If you purchase music as licensed downloads (or by storing it in the cloud) you accept terms clearly outlined in the end-user agreement for doing business with services like iTunes. Consumers do not own their iTunes material; rather, they get a non-exclusive right to access the files, a right that cannot be sold, donated, or given away, even to your descendents after you die.
But the case of Kirtsaeng v. Wiley, currently being heard by the US Supreme Court, could undermine First Sale Doctrine, making ownership feel more like licensing.
Book publisher John Wiley & Sons is suing to prevent an entrepreneur from (legally) purchasing cheap editions of Wiley textbooks in his native Thailand and (legally) importing and selling them to foreign students in the US at below list price.Wiley is asking the Court to rule that First Sale Doctrine only applies to goods made in the USA and that Mr. Kirtsaeng needs their permission to run his import business. [Transcript of oral arguments.]
The so-called “Parade of Horribles” resulting from a ruling for Wiley are many and far-reaching: foreign manufacturers like Toyota having to seek permission from all owners of copyrighted content in their vehicles before import and sale in the US; companies perversely moving manufacturing operations overseas specifically to escape First Sale Doctrine on their products; libraries requiring permission from copyright holders before lending titles in their collection; US citizens requiring permission before bestowing gifts of copyrighted items (books, fashion, textiles, jewelry) brought home from the design capitals of the world. All would have negative US economic impact.
Furthermore, once a precedent is established that First Sale Doctrine can be limited, the slippery slope scenario imagines a tangle of special-interest exemptions passed by a lobbyist-influenced Congress until the suburban garage sale becomes a bureaucratic nightmare, used book and music stores become extinct, and eBay and craigslist shut down completely.
The Electronic Freedom Foundation has joined Demand Progress and the Free Software Foundation in giving you a platform to contact your legislators to urge them to stand up for First Sale. You bought it, you own it, you should be able to do what you want with it. And while you’re at it, ask your representatives to pass legislation conveying legacy rights for licensed media.
[About the author. Consumer Electronics and Software industry veteran Tom Dennehy publishes the online journal Surface to Air, triangulating among ideas and events at the intersection of the physical music past and the weightless digital future. Follow him on Twitter @InAurem_a2d.]