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Keith Irwin
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1 year ago
in “First Sale” Doctrine - Keep it to “Sale” and Don’t Extend it to “Use” on The Technology Liberation Front
I believe your argument that a world with less licenses would result in more contracts, however, I have trouble believing that these contracts would effect ordinary retail consumers. A world in which ordinary retail consumers have to deal with less licenses in exchange for businesses having more contracts sounds like an improvement to me. Currently, a consumer has to have an understanding of copyright law in order to know what they can and cannot do with something they own. Most people are not aware of the restrictions on renting out certain things or public performances. Simplifying the copyright law to allow for any use other than copying would bring the law into balance with most people's sense of what's fair and appropriate and allow us to have a law which isn't routinely violated by well-meaning citizens.
Now, I should argue why I believe that the contracts generated by a decrease in the restrictions of copyright law would not trickle-down to ordinary consumers. First off, the example of there being a click-wrap license every time a CD is inserted is rather silly. Since the possessor of a CD already has the right to play it, a license to play it is not needed. As such, any contract which purports to grant this right in exchange for certain provisions would actually be granting nothing. A contract which takes rights away from one party and gives them nothing in return is too one-sided to be legally enforceable.
An ordinary sale of a physical good is not something which media companies are going to be able to easily impose a contract onto. Doing so would require that sellers only sell to customers who agree to certain contracts, and this is something that retailers would not agree to. It is easy to grant additional rights to the possessor of something, but quite difficult to take away the rights granted by law. In truth, expanding the use right makes this more difficult, not less difficult since currently they can claim that only certain uses are permitted and that they are authorizing additional uses in return for prohibiting others, thereby enabling them to present the consumer with contracts which are not one-sided.
PC software routinely comes with click-wrap or shrink-wrap licenses because there are additional rights which the software can grant the user (permission to make a copy in order to install the software) in order to take away other rights (reverse engineering). If all users were given the right to install any software that they owned, then companies would not have click-wrap or shrink-wrap licenses on the software, thus meaning one less contract in the life of an ordinary user. The obvious example of this are video game consoles whose software does not come with a license because such a license would not be enforceable since playing the video game does not require making an additional fixation of the work. When the consumer has all the rights they need to use something they do not need to enter into a contract, and hence expanding use rights would lead to less contracts in the daily lives of users.
Issues relating to things which are not for resale are already governed by contract since elsewise the doctrine of first sale would allow for resale. Those are currently not a copyright issue and expanding use rights would not change that.
Keith Irwin
Now, I should argue why I believe that the contracts generated by a decrease in the restrictions of copyright law would not trickle-down to ordinary consumers. First off, the example of there being a click-wrap license every time a CD is inserted is rather silly. Since the possessor of a CD already has the right to play it, a license to play it is not needed. As such, any contract which purports to grant this right in exchange for certain provisions would actually be granting nothing. A contract which takes rights away from one party and gives them nothing in return is too one-sided to be legally enforceable.
An ordinary sale of a physical good is not something which media companies are going to be able to easily impose a contract onto. Doing so would require that sellers only sell to customers who agree to certain contracts, and this is something that retailers would not agree to. It is easy to grant additional rights to the possessor of something, but quite difficult to take away the rights granted by law. In truth, expanding the use right makes this more difficult, not less difficult since currently they can claim that only certain uses are permitted and that they are authorizing additional uses in return for prohibiting others, thereby enabling them to present the consumer with contracts which are not one-sided.
PC software routinely comes with click-wrap or shrink-wrap licenses because there are additional rights which the software can grant the user (permission to make a copy in order to install the software) in order to take away other rights (reverse engineering). If all users were given the right to install any software that they owned, then companies would not have click-wrap or shrink-wrap licenses on the software, thus meaning one less contract in the life of an ordinary user. The obvious example of this are video game consoles whose software does not come with a license because such a license would not be enforceable since playing the video game does not require making an additional fixation of the work. When the consumer has all the rights they need to use something they do not need to enter into a contract, and hence expanding use rights would lead to less contracts in the daily lives of users.
Issues relating to things which are not for resale are already governed by contract since elsewise the doctrine of first sale would allow for resale. Those are currently not a copyright issue and expanding use rights would not change that.
Keith Irwin
