There’s going to be a public meeting scheduled for December 12 in Washington D.C., and the U.S. Department of Commerce is seeking public comment from all interested stakeholders on the issue of first sale doctrine and digital files, including ebooks.
According to the notice published in the Federal Register, they, along with the U.S. Patent and Trademark Office and the National Telecommunications and Information Administration, will be considering:
the legal framework for the creation of remixes; the relevance and scope of the first sale doctrine in the digital environment; the appropriate calibration of statutory damages in the contexts of individual file sharers and of secondary liability for large-scale infringement; whether and how the government can facilitate the further development of a robust online licensing environment; and establishing a multi-stakeholder dialogue on improving the operation of the notice and takedown system for removing infringing content from the Internet under the Digital Millennium Copyright Act (DMCA)
The important piece here for TeleRead readers is the part about scope of digital first sale. It’s this doctrine that (theoretically) forbids people from pirating content. First sale does allow users to buy a DVD and gift it to someone. It’s also the doctrine that allows students to sell their textbooks at the end of the semester. Without this doctrine, in theory, a gifter or reseller would have to ask for publisher permission to take those actions. Good thing I don’t have to ask permission before giving someone a DVD!
However, eBooks have been troublesome. First sale doctrine does not give permission for someone to copy a work in its entirety and transfer it to another party. Neither does fair use doctrine. Ebooks effectively can’t be loaned or (potentially) resold without copying. This has led to the legal battleground between publishers and resellers, with publishers generally arguing that the ease of copying and transferring digital files makes rights holders especially vulnerable to piracy. (Never mind the fact that studies show that increased legal availability of content reduces piracy.)
Lack of first sale protection is the main reason publishers “sell” content under a licensing instead of owning arrangement. It’s also what leads to caps on the number of times library books can be checked out.
I know from comments on past articles that the TeleRead community has strong opinions on both sides of this issue. Well, here’s your chance to make your thoughts known. Public commentary is being accepted via email to: CopyrightComments2013@uspto.gov before the November 13 deadline.