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You bought it, you own it: Copyright policy should foster freedom

To celebrate Copyright Week, the American Library Association will join a number of organizations to exchange ideas, information and actions about copyright reform. From Monday, January 13th until Saturday, January 18th, copyright experts will explore different aspects of copyright law on the District Dispatch.

Guest blogger: Tomas A. Lipinski

Kirtsaeng’s legacy

With the Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351 (2013) decision behind us, clarion bells were rung  across the copyright-land announcing the decision as a victory for user rights and the downstream public distribution of works protected by copyright.

Consider these pleasing and positive excerpts from the opinion:

“Is the buyer, like the buyer of domestically manufactured copy, free to bring the copy into the United States and dispose of it as he or she wishes?…Can that buyer…sell it or give it away? Can, for example, someone who purchases, say at a used bookstore, a book printed abroad subsequently resell it without the copyright owner’s permission? In our view, the answers to these questions are yes.” Id. at p.*4-*5.

“Associations of libraries, used-book dealers, technology companies, consumer-goods retailers, and museums point to various ways in which a geographical interpretation would fail to further basic constitutional copyright objectives, in particular ‘promot[ing] the Progress of Science and useful Arts.’” Id. at p. *10, quoting the Copyright Clause of the U.S. Constitution.

“Used-book dealers tell us that, from the time when Benjamin Franklin and Thomas Jefferson built commercial and personal libraries of foreign books, American readers have bought used books published and printed abroad.” Id. at p. *11.

“[U]nder a geographical interpretation a contemporary tourist who buys, say, at Shakespeare and Co. (in Paris), a dozen copies of a foreign book for American friends might find that she had violated the copyright law.” Id.

“And they believe that a geographical interpretation will injure a large portion of the used-book business.” Id.

However the decision portends an even darker future age of control, of domination over the flow of information, the stagnation of online commerce and the stifling of creative civil society.

As with most “contracts” the devil is in the details and the future of the social contract between copyright owners and users, a contract that has heretofore been arbitrated, negotiated and leveraged by Congress, the courts and to a lesser extent the U.S. Copyright Office is at precipitous point.

As the Kirtsaeng Court observed, the prior iteration of the statute did not have a geographical component but did use the word ‘possession of’ instead of the current ‘owner of’ language: “the change in language makes clear that they [possessors] (like bailees and other lessees) cannot take advantage of the ‘first sale’ doctrine.” Id. at p. *8.

valetA bailee is person charged to take control of your property for particular purpose, for a particular time, etc., like when you valet park your car. You are the bailor and the restaurant, hotel, etc. is the bailee. They might possess your car for a few hours or overnight but you still own it; it remains your property and they are obligated to care for it and return to you at some point. Thus the Court commented that one in the position of a valet (a bailee) does not obtain ownership rights in the car, such as the right to unilaterally decide to lease it or paint it a metallic fuchsia. Bailments operate in numerous places like DVD lending markets like Netflex and library books and other material lending. The customer or patron might take possession of the disk or book, but not ownership of the item. If the movie or novel is not returned or damaged the bailee customer or patron is responsible for the harm. But in the emerging online markets movies are now streamed and books are downloaded onto readers.

First sale protections after Kirtsaeng

Does this leave the customer, patron, consumer out of the equation? No, as the Court also includes another category of possessor: “Section 109(a) now makes clear that a lessee of a copy will not receive ‘first sale’ protection but one who owns a copy will receive ‘first sale’ protection, provided, of course, that the copy was lawfully made’ and not pirated.” Id., italics original, bold added. A person who is a lessee of content is also sans ownership rights and sans rights of public distribution under the first sale doctrine as interpreted by the Kirtsaeng Court.

So what’s the connection? In today’s information marketplace the consumer watching Game of Thrones, Season II via stream and the patron reading books on their Nook are likely not bailees, more likely an agreement governs the transaction; an agreement the end-user likely clicked-to-agree without ever reading and more important with terms that establish the rules of use. These users are lessees, parties to some sort of Terms of Service or End User License Agreement. Such agreements remove information transactions from the land of copyright and place in the land of contract. It is a dismal landscape indeed, often stripping users of rights hard fought and hard won under the copyright law’s list of limitations on exclusive rights (sections 107-122 of Title 17, United States Code, i.e., where the codified copyright law is found) such as fair use (section 107) and first sale (section 109).

Copyright to contract and license: implications

Information contracting removes the process of owner/user “negotiations” out of public sphere and into the private ordering of disparate bargaining positions, self-interest and winner-take-all motivation. As Margaret Jane Radin writes in her 2013 monograph entitled Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, this results in both “normative degradation” (chapter 2, pp. 19-32) and “democratic degradation” (chapter 3, pp. 33-51).  As I explain in a forthcoming review of her book in the Journal of Information Ethics, Radin recounts the various heuristic biases and tendencies that encourage humans to move forward (click-to-agree, click to download, etc.) even when we suspect it is not in our best interest to do so. As a result we are poor judges of our own legal risk, rationalizing that the worst will never happen to us in the transaction to which we have just assented. Sellers, vendors, licensors, etc., use these tendencies to restructure the world through a successive ordering of legal relationships based on contract not for example consumer protection law or fair use of copyright. This contributes to further degradation as the rule of law is replaced with “whatever I say it is based on the terms you’ve just agreed to.”

This is the apocalyptical “Wellsian” future we can expect as ever more information transactions move from copyright to contract and license. As the recent Capital Records, LLC v. ReDigi, Inc., 934 F.Supp.2d 640 (S.D.N.Y. 2013) underscores the current copyright law does not readily accommodate transfers of digital content: The transfer of iTunes files results not in a mere distribution, but a reproduction that is not lawfully made: “Put another way the first sale defense is limited to material items, like records, that the copyright owner can put in the stream of commerce.” Id. at *10 (emphasis added). Oddly, music from iTunes is subject to license but the court did not discuss the iTunes license provision limiting use to a particular user.

So even if the law is amended to allow such re-distributions, the breathing “information space” created by such amendment will likely and quickly be filled by an increased turn to license as a vehicle for content dissemination. What is needed is a comprehensive solution that addresses both the shortcomings of the current copyright law in light of new social models of content innovation and exchange as well as the “loopholes” of the sacrosanct contract law on which much licensing application and interpretation is based.

Thomas A. LipinskiTomas A. Lipinski is a Professor at the Kent State University School of Library and Information Science. His teaching and research interests are in copyright, licensing and free speech. Recent work includes a paper “Click Here to Cloud: Issues in Cloud Computing EULAs or TOS Agreements” presented at Fourth Annual International Symposium on Information Management in a Changing World (IMCW), Limerick, Ireland, September 4-6, 2013 and TOMAS A. LIPINSKI, THE LIBRARIAN’S LEGAL COMPANION FOR LICENSING INFORMATION RESOURCES AND SERVICES (2012), published by Neal-Schuman/ALA.

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Carrie Russell

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