A New Year’s Copyright Puzzler

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!

10 thoughts on “A New Year’s Copyright Puzzler”

  1. It’s an interest legal lacuna, but I don’t think it’s a practical problem, since the First Sale doctrine only applies to individual copies. I suspect you could make a plausible argument that it really has to be the original downloaded file that’s sold, not a copy; else you could buy a book, make a photocopy, and then sell the photocopy while keeping the original book. So the import MAY be that you can sell an electronic copy but only if you are giving up YOUR copy (or copies). That would allow you to sell the hard drive with the file, for example, but not make a DVD and sell it.

    But even if I’m wrong, I think the worst case is that you could sell a single DVD copy on eBay, which would be pretty silly since everyone could download the file for free.

    In a practical sense, I think that the CC NC license limits the ability of commercial enterprises from falsely claiming or implying that they are selling something that they have exclusive rights to. To distribute something commercially, they’d have to go to the rights-holder and get permission to falsely claim or imply… and my guess is that in most instances, the rights-holder will say, “Sure, go sell this and give me money, but you need to put the link in there that will show the user that they can get more for free.”

  2. I’m inclined to agree with Sherman Dorn; the doctrine only applies to individual, original, copies. It would be very difficult to make a commercial enterprise out of such a practice without making copies.

    To take your example even further, why not sell something even more intangible: a *link* to the original? There’s nothing in CC-NC that would prevent that.

    Despite the occasional effort by publishers to, say, clamp own on the used book market, a copyright is limited to the right to *copy*. And therefore, the CC-NC condition can apply only to commercial copying.

    Other uses – commercial or otherwise – are not impacted by the NC clause. Which includes commercial air dealing, right of first sale, reference and citation, and whatever other non-copying behaviours inventive commercial enterprises can think of.

  3. My official Wyoming State Quarter says First Sale doctrine wins. Hooray for the guy on the bucking bronco!

  4. i think that since the internet has become so prevalent, the laws should be changed. large companies expect resellers to sell their items and then prosecute them for copyright or intelectual rights?? whats with that. we are all grown up and people know that to sell a gucci bag, you need to use a gucci picture..lol

  5. “To take your example even further, why not sell something even more intangible: a *link* to the original? There’s nothing in CC-NC that would prevent that.”

    I think selling links is reasonable, so long as providing the link constitutes a “service” beyond the CC’ed “goods.” Isn’t that part of what databases like Lexus-Nexus do? sell *access* to pointers to publicly available content?

    I CC’ed By-NC-SA my dissertation (shh. Don’t tell the library.), but that doesn’t mean that Proquest has to abide by those terms because they’re not selling my work. They’re selling a link to it.

  6. I have been trying to find out solution of this problem for last one year. I am trying to promote open educational content in India(already burnt lot of my personal money for promotional activities). There are many places in India where people don’t have access to Internet. So I approach MIT OCW(to start with) and they allowed me copy the content in DVDs with some conditions :

    1. You are welcome to recover nominal actual costs for copying DVDs.

    2. Only under 1000 copies of CDs are allowed.

    3. Allowed only for Educational Purpose.

    4. There should be no profit motive.

    5. Intended use of the copies is in compliance with all license terms.

    6. People must be informed that the materials are freely available on the OCW web site and that their purchase of copied materials is optional.

    There are lot of people in developing countries who buy CDs for Linux as they can’t download it. There are people who sell it for profit.

    Now, If I am spending a lot of time and energy in collecting content and organizing it around a particular course(catered to local syllabus) in a DVD apart from burning and sharing it with others, can’t I make little profit for my effort ? I am not a rich guy, I have just passed out of college couple of years back and I need money to sustain myself and my family. So If I can’t do it for some profit , I am waiting for a person who can donate money and help me spread this world class lectures in India to million of students who don’t have access to Internet.

    Also, we are talking about these projects on global scale. I have to check Indian version of first sale doctrine.

  7. kapil, cost of copying DVDs includes cost of labor and materials, as you would have to pay someone to do it if you weren’t doing it yourself. you should be ok building in an acceptable hourly rate for the time you spend copying, marketing and distributing, unless MIT OCW expects you to do it all with volunteers. did you ask them what they consider “profit”?

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