Re: first sale doctrine

On Fri, Mar 24, 2000, Kathy Olson <kko[_at_]mindspring.com> wrote:
>
> On Thu, 23 Mar 2000, Douglas M. Isenberg <disenberg[_at_]gigalaw.com> wrote:
> >
> > I have not downloaded the reader or the e-book, but I suspect
> > the user agreement for one or both of these files might restrict
> > transferability of the e-book (in addition to the technological
> > transfer restrictions that are built-in and apparently pretty
> > stringent). However, if the agreements do not attempt to override
> > the first-sale doctrine, then shouldn't someone who downloaded the
> > e-book be able to give or sell it to someone else without violating
> > copyright law? (Of course, who wants to give their laptop to someone
> > else just so they can read a free or cheap novella?!)
>

....
>
> "Copy: No text selections can be copied from this book to the clipboard.
>
> Print: No printing is permitted for this book.
>
> Lend: This book cannot be lent to someone else.
>
> Give: This book cannot be given to someone else."
>

....
>
> Are these terms enforceable? Are readers "manifesting assent" to the
> terms, when the terms aren't readily found? I'm not sure I see a
> contract here.

I think the technological "rights management systems" (RMS, Glassbook's in this case) are the important features of this new way of publishing. After all, it is not so new--there are more than 11,000 FREE electronic books on the Internet, and electronic books have been sold on the Internet since its beginning. The only thing new is that King's book is an attempt to get readers to download and use their RMS so they will get into the habit of buying their books that way, locked up.

If readers do so, they will find that the license is not so important. All the license does is show that the manufacturer attempted to lock up the system and make the DMCA apply. So all they need to prove is that a work was copyrighted, that a RMS was used, and so any fair use such as printing, lending, reading by the blind using a text-to-speech synthesizer, and so on--that all those uses (if the RMS doesn't allow them) are copyright infringements, and that can quickly be prevented by a TRO and injunction in federal court.

So in my opinion (IANAL) the critical part here is not whether the license can be enforced in state courts, but rather whether or not the DMCA applies. If so, then anyone who attempts to resell the book can be charged with infringement, because in order to do so one must have broken the RMS. (In fact, the RMS is not very good and was quickly broken after the King work appeared, but as the CyberPatrol case points out, it is risky to try to criticize the effectiveness of such software.)

I for one object to the practice here of trying to replace copyright, as we know it under federal law, with licensing and technical locks such as encryption. Fair use as we know it with normal printed books has allowed a blind reader, for example, to scan the book and read it with a text-to-speech synthesizer (how else could she use it?) But the RMS specifically prohibits this and this is enforced not only by license, but by technical means that it is a crime to bypass (at least in the jurisdiction of the DMCA). Right of first sale won't enter this discussion, even academically, nor will the actual terms of the license (which never grants you the right to break their encryption even if that is the only way to attain fair use).

If many readers embrace this type of "eBook" with its RMS, then goodbye used bookstores and libraries (each book is locked to one computer only, and only the first few chapters of the King work can be read on another computer once you download it, so you have to buy another copy and download to that one if you want to read the rest). And then what is the utility of copyright law? We ought to encourage publishers to use copyright wisely and not lock up books--that will come back to haunt us in the future. Perhaps there ought to be some other incentives provided? What happens when the term of copyright expires--what will it mean to have this work enter the public domain?

If you don't think the DMCA should restrict fair use this much, then you are invited to submit your comments to the Librarian of Congress as I did.

BTW, Richard M. Stallman (the "good" RMS) predicted all this years ago. Read his science fiction piece (for free): http://www.eldritchpress.org/right-to-read.html

-- 
"Eric"  Eric Eldred  Eldritch Press
mailto:Eldred[_at_]EldritchPress.org
http://www.eldritchpress.org/EricEldred.vcf