Dan Gillmor: In Our Digital World We License, Not Own
Corporations and lawmakers have put us on course for a world where consumers do not own the things they buy.
A federal judge has reminded us of a fundamental reality: if it’s digital, we don’t own it. In an unfortunate but unsurprising ruling, District Judge Richard J Sullivan sided (pdf) with the Copyright Cartel – specifically, Capitol Records in this case – against an innovative startup that was providing a marketplace for used songs.
Had the users of the startup, ReDigi, been selling used CDs via any number of online stores, there would have been no issue. But the music in this case was stored in computer files, so the doctrine of “first sale” – your right to resell what you’ve bought – didn’t apply.
ReDigi tried hard to live up to the spirit of copyright law. It created a system where the uploader of a “purchased” iTunes song would lose access to the music after the file was transferred to the new “buyer’s” computer. Yeah, right, said the record company and the judge – there’s no way to ensure that the “seller” wasn’t keeping the song anyway.
The first-sale doctrine has been an essential part of American copyright law. If you buy a book, you can resell it or give it away (or even throw it away). The new owner, or your heirs, will have the same rights. First sale got a big boost recently when the supreme court rejected a publisher’s stance that a book it sold overseas couldn’t legally be resold in the United States.
But with digital material, as I noted in this space a few months ago, the original owners are only providing you a license to use the material. This creates a market condition they absolutely love, where your possession of the material lasts, essentially, only as long as you do. Less freedom for you, more sales – sorry, licenses – for them.
America’s top copyright official, Maria A Pallante, has at least noted the first-sale conundrum in a world where so much of what we read, hear and watch is born – and remains – digital. In testimony before Congress and in a recent speech, she recalled that the Copyright Office, which she heads, recommended in 2001 that Congress not change any laws to create digital first-sale rights. And she listed some of the choices lawmakers might make should they review the issue.
“On the one hand, Congress may believe that in a digital marketplace, the copyright owner should control all copies of his work, particularly because digital copies are perfect copies (not dog-eared copies of lesser value) or because in online commerce the migration from the sale of copies to the proffering of licenses has negated the issue.
On the other hand, Congress may find that the general principle of first sale has ongoing merit in the digital age and can be adequately policed through technology – for example, measures that would prevent or destroy duplicative copies. Or, more simply, Congress may not want a copyright law where everything is licensed and nothing is owned.”
Neither choice is especially appetizing, though the idea of absolute control of absolutely everything by copyright holders should be anathema by definition. Policing of reselling rights “through technology” – what ReDigi was attempting to do – is better, but has an enormous flaw: it invites a regime in which everything people read (hear, watch, etc) is tracked. We already have a problem in this regard with digital licensing; we need to find ways to restore anonymous media consumption for all kinds of licensing and sales.
But let’s be clear: Congress and corporations have not disguised that a world where “everything is licensed and nothing is owned” is exactly what they want. And it’s not just media content that’s involved. As software becomes more and more embedded into everyday products, their manufacturers are using code restrictions – and copyright law – to thwart buyers’ choices. As Kyle Wiens recently wrote at Wired, we don’t own our phones, which carriers refuse to unlock, or even our cars, which are becoming computer networks on wheels.
The people who gain inordinate profits from abusing copyright to control their customers won’t see things my way anytime soon. So I’m casting my lot, at least to the extent that I can, with the people who give me tools to liberate myself from that control. I hope you will, too. A lot rides on who prevails.