Re: first sale doctrine

On Wed, Mar 22, 2000, James Rogers <jetan[_at_]ionet.net> wrote:
>
> I imagine that this has been discussed before, and I have just
> missed it, but what happens to the first sale doctrine on the
> internet? If I pay to download the Stephen King thingie from
> it's site, may I presume that I am not as free to give it away
> or loan it as I would be with it's physical counterpart?

James,

The answer depends on the Digital Rights Management copyright protection technology in use, the rules set when the content object was licensed or purchased, and the cost and capabilities of the clearinghouse supporting the sale. Some of the DRM technologies do support the concept of loaning or giving your copy of a file to someone else. (My memory is fuzzy on this point, but I believe that SoftLock, the technology provider behind the Steven King novelette, does have such capabilities.) You lose access to the copy while it is under the borrower's control, and re-acquire access to the file when it is returned. I recall that one of the DRM technologies even allows you to set an automatic return, whereby the borrower loses access and the lender reacquires access after a set time period.

So there is technology capable of supporting first sale doctrine. The second part is the policy issue. Is the transaction that takes place a license or sale. Are first sale rights included in the license? Those issues have to be determined by negotiation at or prior to the transaction and entered into the rights management meta-data for that file. My feel is that the default "norms" will vary depending on the market.

The final piece is the clearinghouse that administers the keys for the content. There are costs associated with each transaction, whether it is a purchase or a friendly loan. In the case of a "lending library", those costs could become significant. It remains to be determined who will carry those costs. Right now they are generally carried by the publisher and considered part of the "list price." So, for a free or very low cost item I doubt the publisher would support the more expensive option of allowing second-hand use, unless of course they wanted to monitor for marketing purposes just how much such use was going on.

David

David K. Ades
Principal and Founder
AuthentiKey
david[_at_]AuthentiKey.com Received on Thu Mar 23 2000 - 19:03:09 GMT