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First-Sale Doctrine Under Fire

By Posted by Alan Wexelblat

A notice of filing an amicus brief from the EFF reminded me that I had also meant to blog about Vernor v Autodesk, another crucial case that has received far too little mass-media press attention.

Technically the issue at the heart of the three-judge opinion issued last month is a technical point of copyright law. Practically, though, you could write a headline that screams "Decision threatens eBay, GameStop, and thousands of other used-product businesses." Bet that would get some attention.

OK, let's take it one step at a time. The basic idea, which has long been held to be valid copyright law, is that the legal buyer of a copyrighted product may resell that product within certain limitations. For example, I can't claim that a resold product is mine or otherwise commit fraud, but in general the legal sale of a legally bought copyrighted work is... well, legal.

Or it was until some software marketing weenie got the brilliant idea to stick a shrink-wrap/click-through license agreement on a pile of bits and claim that you didn't actually buy that program you think you bought. You're just leasing it. And since you're not a legal buyer you don't have the rights of a buyer, including the right to resell.

It will surprise approximately no one that the software makers and the MPAA all sided with Autodesk in this case. Ebay and the American Library Association sided with the defense. And, as I mentioned at the start, the EFF has asked for an en banc hearing on the issue.

The sad part is that once again the software makers are failing to understand their audience. People who buy used do so because they can't afford the full price of something. Even if it was possible shut down the entire legal resale marketplace (which it's not) the fact that someone can't find a legal resale copy is not going to make them suddenly able to afford the product in the first place. What will instead happen is that people will find something they can afford. Torrents are still free, last time I looked.

There's another interesting sidebar to this, which is that SCOTUS is set to consider a case this term - Costco v Omega - in which the question at issue is whether the fact that a product was created overseas has any bearing on the applicability of first sale doctrine.

Full post as published by Copyfight - The Politics of IP on October 19, 2010 (boomark / email).