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Hmmm . . .

Posted by JoshT (A) on July 7, 2012 at 09:55:42

In Reply to: RE: Pre-loaded music? posted by Tony Lauck on July 7, 2012 at 09:35:25:

Hey Tony,

Some questions and comments:

"That would clearly be ethical. Whether it is legal or not depends on the jurisdiction(s)."

Do you mean what Presto is suggesting, with his conditions? Or do you mean what the guy on Audiogon is doing, which appears to be an unconditional sale of a back-up disc of thousands of dollars worth of music that he is keeping for his own use?

"You didn't mention downloads, for which would be no CDs to package for shipping. Most downloads are supposedly "licensed" to the original purchaser and not transferable. If these "license" provisions stand up, then transferring the files would be legal as well as ethical."

Not following you. If the licenses are non-transferrable, then how would transferring the files be legal if they held up? Non-exclusive, not-transferrable licenses are enforceable, and enforced, all the time under our legal system. Also, and separately, I don't believe any license is at issue whether the music is copied from a disc or a website. When one buys a copyrighted work, one may not make copies for resale (absent an express license to do so). Period.

"It is my understanding that some courts in the EU have ruled this way, i.e. the right of first sale doctrine applies to downloads as well as CD sales. Whether this will stand up and/or spread to other jurisdictions remains to be seen."

The first sale doctrine does NOT apply to making and selling unauthorized copies, whether under the patent laws or the copyright laws. The first sale doctrine allows you to use, repair and resell the original copyrighted work (or patented invention). So, you can certainly sell a CD that you purchased, just like you can sell a book, and that's true whether what you purchase in reduced to physical medium or not. The first sale doctrine does not allow you to make or copy the work/invention and then sell the copy or the original. I doubt any courts have a held otherwise. With Presto's conditions, I at least see no harm.

"This issue is more complex where there are DRM "teeth" such as with Kindle books. There are also issues of inheritance upon death of licensee, sharing of accounts, etc..."

OK, I'm a bit out of my element here, but let's assume no DRM applies to this example. I find it a clear violation of U.S. copyright laws. Not a gray area, or even an off-white area.

"In the US, according to the Constitution (assuming it's not a totally dead letter), Copyright exists to encourage the publication of creative works. It would seem that the present system is doing a rather poor job of accomplishing this. It is well past time to reassess the entire system, but given the corrupt political structure this is highly unlikely to happen anytime soon."

Like it or not, I think the point of the constitutional language was ensure that the creator and owner of creative works would know that he, she or it has a limited legal monopoly from which to profit without infringement. The notion being that if anyone could copy a creative work (or on the patent side practice a novel, non-obvious invention) regardless of whether or not he had anything to do with the creative work (or invention) would chill innovation. That might be misguided, but that's what was intended. The fact that the system may be failing doesn't open the door to allowing infringement of other people's proprietary rights. IMHO.

Josh
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"If you are the owner of a new stereophonic system, this record will play with even more brilliant true-to-life fidelity. In short, you can purchase this record with no fear of its becoming obsolete in the future."

Edits: 07/07/12

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