Responding to my post about the Tom Waits lawsuit, in which I distinguished between an ordinary CD and a DRM-limited-CD as different “things,” Ernie Miller at The Importance of writes:
I don’t see the distinction. Is there some contract involved? If not, why can’t I do whatever I want to do with the recording, so long as it doesn’t violate copyright law?
No, there is no contract involved. That’s precisely the point. There’s nothing in copyright law (even pre-DMCA copyright law) that says that the author can’t produce, and sell, a thing characterized as a “DRM-enabled-CD.” You can’t “license” a “book,” but so far as I know, and aside from vague prohibitions on equitable servitudes in chattels, there’s no clear rule holding that you can’t sell a “restricted use book.”
Suppose the digital download service characterizes the product that you buy (not license) as a DRM-enabled-CD. Suppose further that the point of the DRM is to limit playback to you and you alone. You can move the file from device to device, but it will play only on your devices (say, your iPod) — set aside the technical reality that this won’t actually work. Now, run the DRM-enabled-CD through the Section 106 rights, with the Section 107, etc. limitations, and ask: What happens when you loan your iPod to a friend? Are you liable for copyright infringement?
Before you react — no, if I’ve bought a copy of the work, I can dispose of the work under Section 109(a) — consider that you bought a “my use only work,” not an unadorned copy of the work. And before this sounds too fanciful and metaphysical, consider the Creative Commons license. No one assents to CC licenses — the “legal code” versions of the CC “deed” purport to constitute a sort of CC-wrap, but that language is so far removed from ordinary CC license notices that it really stretches the shrinkwrap fiction beyond the breaking point. I can’t imagine a court enforcing a CC license on a contract theory. So, suppose a user of a CC-licensed work violates the license. Does the author of the work have a remedy? I’d like to think so. But I suspect, also, that the only legitimate way to get there may be to argue that the user accessed a “CC-licensed work,” no assent to terms involved, rather than a “work.”
If somebody violates the CC license on my website, I sue them for copyright infringement. The license exists not to give me a basis for suing them — copyright law does that — but to give them a defense if I sue them for doing something that is permitted by the CC license. If we end up in court, it’s the user of the website, rather than me (the publisher), who will be arguing for the validity of the CC license. And I can’t very well argue that I didn’t properly consent to my own CC license.
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There is a contract involved. The iTMS Terms of Service are very specific that you are not purchasing the song, only a license.
Note: Characterizing a transaction as “purchasing” a license to a copyrighted work perpetuates confusion regarding application of the doctrine of first sale.
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