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Scrivener’s Error – Hasn’t Anyone Ever Heard of First Sale?

Scrivener’s Error has some strong criticism for the bill as written, views the bill as an attempt to undermine the first-sale doctrine, and notes several other problems. I was not aware that the bill was a stealth bill, heading to the Committee on Energy and Commerce rather than the Committee on Judiciary, the typical home of copyright legislation. The blog author also recognizes that the bill seems to contradict the Audio Home Recording Act in several ways, particularly the prohibition on certain infringement actions.

The first sale doctrine implications are troubling, and I’m glad he pointed them out. For those of you unfamiliar with the first sale doctrine, that is the portion of copyright law that allows activities like selling, giving away, burning, etc. legitimately acquired copies of materials without infringing copyright. It also allows things like DVD rentals, and oh, say, libraries lending books. It is an important part of copyright law.

There have been several challenges to the first sale doctrine when dealing with digital materials. The U.S. Copyright Office generally tends not to discount first sale applying to digital objects, although this is a debated subject. I’ll write more about this at another time, but the different views usually break down from “digital objects should be treated the same as physical objects” to “transferring digital objects is infringement because you always make a copy when you try to transfer,” with various arguments in-between. Some libraries do attempt to lend digital materials, with varying degrees of success (note that in the linked example, they are actually lending a physical object). Of course, companies generally attempt to direct the usage of digital copies by DRM and complex licensing, which attempts to take first sale out of the picture altogether.

And of course, once again, this is an attempt to use legislation to direct the development of technology in such a way that could potentially harm the public.

From a Boing Boing story noting that the US House of Representatives has introduced a mandatory radio-crippling law.

There are serveral disturbing parts of the proposed law, dubbed the Audio Broadcast Flag Licensing Act of 2006. The relatively short full text of the bill can be found on Thomas at the Library of Congress.

One of the most problematic portions of the bill would prohibit “unauthorized copying and redistribution” of digital radio. The bill itself has language that MIGHT allow exemptions such as fair use or the myriad other exemptions, but it isn’t clear, and the bill relegates these uses to the “custormary use of broadcast content by consumers.” I find the terms customary use and consumers disingenuous. “Customary use” smacks of the problematic “historical use” that some content publishing industries are advocating as a replacement for fair use. Historic/Customary use is not sufficient to protect the public interest in copyrighted material. “Consumers” completely ignores members of the public who are not necessarily what a market would consider consumers- like, say, instructors teaching in the classroom, for one example.

There, I’ve said it. Shut up already.

Why?

Well, there’s things like this, for instance. In one news post, an “El Dorado” reference (from old-time Superfriends) AND a practical joke from Sony Online Entertainment. This could only be more complete if they posted images of some of the Elemenstor Saga cels they salvaged (although that might have just been a rumor).