A short version, a long version, and a surprise.

The short version: who has precedence, the CC NC clause or the First Sale doctrine?

The long version: First, a little background on the First Sale doctrine from Wikipedia (normal caveats apply):

The first-sale doctrine is a limitation on copyright that was recognized by the U.S. Supreme Court in 1908 and subsequently codified in the Copyright Act of 1976, 17 U.S.C. § 109. The doctrine allows the purchaser to transfer (i.e., sell or give away) a particular lawfully made copy of the copyrighted work without permission once it has been obtained. That means that copyright holder’s rights to control the change of ownership of a particular copy end once that copy is sold, as long as no additional copies are made. This doctrine is also referred to as the “first sale rule” or “exhaustion rule”… In 1909 the codification originally applied to copies that had been sold (hence the “first sale doctrine”), but in the 1976 Act it was made to apply to any “owner” of a lawfully made copy or phonorecord (recorded music) regardless of whether it was first sold. So, for example, if the copyright owner licenses someone to make a copy (such as by downloading), then that copy (meaning the tangible medium of expression onto which it was copied under license, be it a hard drive or removable storage medium) may lawfully be sold, lent, traded, or given away.

(For more detail, see this entry on copyright.gov.)

And now, a little background from the bottom of each and every Creative Commons license (for an example, see the bottom of http://creativecommons.org/licenses/by-nc-sa/3.0/):

Your fair dealing and other rights are in no way affected by the above.

To be more specific, from the Legal Code version of the license,

2. Fair Dealing Rights. Nothing in this License is intended to reduce, limit, or restrict any uses free from copyright or rights arising from limitations or exceptions that are provided for in connection with the copyright protection under copyright law or other applicable laws.

Clearly, Creative Commons does not mean for their licenses to interfere with the limitations on copyrights granted us elsewhere, like our rights under the First Sale Doctrine.

Now, let me try to string these beads together here.

Someone, say MIT OCW, grants me permission to make a copy of some of their materials subject to the terms of the CC By-NC-SA. Let’s say it’s a collection of biology video lectures from Eric Lander, who President-elect Obama has just named co-chair of the President’s Council of Advisors on Science and Technology (congrats!). I’ll burn these to DVD so that they won’t take up space on my hard drive, and use them as a free replacement for a textbook to study for the biology class I’m taking this term.

Now I find myself in possession of a copy of Prof. Lander’s materials, which I have obtained legally. When the semester is over, do I have First Sale rights to this copy of Prof. Lander’s work?

Let’s think about it in terms of textbooks. They are fully copyrighted. All rights reserved. At the beginning of the semester, I obtain a copy of the book through legal means. At the end of the semester, when I no longer want the textbook, First Sale means I am free to sell that copy of the textbook for whatever price I can get.

Now what about my DVD? (Remember, I didn’t buy a textbook for my class.) Having obtained this copy of Prof. Lander’s work through legal means, now that the semester is over, does First Sale mean I am free to sell my DVD? Can I sell this copy of an NC-licensed work?

If not, isn’t something very wrong?

If I can’t sell the DVD, it means that somehow the limitation on copyright that applies to an All Rights Reserved work does not equally limit the copyright of a Some Rights Reserved work. Shouldn’t the First Sale limitation that applies to All Rights Reserved works also apply to Some Rights Reserved works?

This question can be asked in a more basic way. When I download a video from MIT OCW, do I own that copy of the video? If so, it seems that First Sale limitations apply and I am free to later sell that copy.

If not, then I don’t actually own the copies I make of CC-licensed materials? If not, a CC license is actually a EULA or clickwrap license that gives me permission to use a copy but should make it clear (but doesn’t) that I don’t own the copy?

The surprise: Is the First Sale doctrine a hole in the NC clause big enough to drive a truck through? It may not be, but I would sure like for someone who knows more about the statute and the case law to explain to me why not.

Happy New Year!