10.08.07
You Can’t Resell That CD
The RIAA won a $222,000 lawsuit against an individual woman in Minnesota who was using a peer-to-peer network. As absurd as that sounds, it didn’t alarm me much until I read more of the details. Apparently, the woman wasn’t found guilty of downloading copyright music. She was guilt of making copyright music available for download.
Apparently, copyright law also grants distribution rights to the copyright holder. For example, in this particular case, Virgin Records filed the following statement with the court…
A person also violates a copyright holder’s distribution right by making copyrighted works available to others without authorization from the copyright holder. Section 106(3) of the Copyright Act gives the owner of copyright “the exclusive rights to do and to authorize any of the following: . . . (3) To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending . . . . 17 U.S.C. 106(3).” This language makes it clear that it is an actionable infringement for one to violate a copyright owner’s exclusive right to authorize the distribution of copies or phonorecords of a copyrighted work.
I can only hope that Virgin Records somehow took 17 U.S.C. 106(3) completely out of context. If I interpret it as written above, it seems that I am legally required to keep every CD, DVD, LP and VHS tape that I’ve ever purchased. I can’t sell my old DVDs. I cannot give you a CD, even as a gift. Can I even toss a VHS tape in the trash? Why aren’t there massive raids going on at all the second hand book stores around the country? Are all libraries required to explicitly obtain distribution rights for every work in their collection?
Any of these acts are undeniably prohibited under the aforementioned copyright distribution clause. Technically, I must get permission from the copyright holder of my Air Supply record before I transfer ownership to the city landfill.
wfrantz said,
October 15, 2007 at 6:18 pm
The defense is asking the judge to overrule the award. http://www.wired.com/politics/law/news/2007/10/copyright
wfrantz said,
April 30, 2008 at 2:46 pm
Another Judge Says Music Sharing Doesn’t Necessarily Equal Infringement http://blog.wired.com/music/2008/04/judge-says-musi.html
wfrantz said,
May 23, 2008 at 10:00 am
Another Judge says that the First Sale Doctrine trumps DMCA. I wonder if this also means that First Sale Doctrine trumps 17 U.S.C. 106(3).
http://arstechnica.com/news.ars/post/20080523-court-smacks-autodesk-affirms-right-to-sell-used-software.html
Autodesk tried to argue that eBay merchant, Timothy Vernor violated the terms of the End User License Agreement by reselling copies of AutoCAD. The Judge ruled against Autodesk. I don’t know why Autodesk did not try to cite 17 U.S.C. 106(3) and claim Tim was violating their exclusive rights to distribute or transfer ownership.
More on First Sale Doctrine: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=210&invol=339
wfrantz said,
May 23, 2008 at 10:30 am
A little more research reveals why my analysis of 17 USC 106 is off. It appears that in a later section, 17 USC 109, the law re-establishes the right to resell or trash copyrighted works. The law basically says, “you can’t do X” then later says “you can do X”. I guess this is why I shouldn’t be an armchair lawyer. The law just doesn’t make sense.
Why can’t Jammie Thomas in Minnesota cite 17 USC 109 and claim the right to redistribute the copy that she got from somebody else? Then the RIAA would have to prove that Jammie gave away more copies than she received.
In other words, as a P2P user, I can claim every copy of every work that I download was a legal transfer of ownership from the previous owner to me. I can’t help it if the previous owner (illegally) kept a copy for themself when then sent it to me. Furthermore, if somebody takes the file from me, I will delete my copy so as to comply with 17 USC 109. Of course I might go fetch another copy of the same work from somebody else, but I’m free to do that. Now the RIAA has to track every transfer in/out of my computer and show that I have sent out more copies than I have the legal right to “resell”.
It seems that, as long as the total copies in circulation do not exceed the total copies published, then there is no distribution infringement. Furthermore, even if you can prove circulation exceeds publication, you can’t really identify who is making the extra copies vs. who is abiding to 17 USC 109.
wfrantz said,
May 23, 2008 at 11:25 am
The jury in Jammie Thomas’ case was told that merely making a copyrighted song available in a shared folder amounts to infringement. Now judge Michael Davis may grant a new trial because on further consideration, those instructions maybe wrong.
http://news.cnet.com/8301-13578_3-9945643-38.html