Scrivener’s Error on the Audio Broadcast Flag Licensing Act

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.

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