Today, the Supreme Court decided the Kirtsaeng case. The Court held that the first sale doctrine limits a copyright holder’s ability to control distribution of copies lawfully purchased by the defendant, even when the defendant lawfully obtained the copies outside the United States. In so ruling, the Court clarified questions left behind by cases such as Quality King v. L’Anza, which many thought stood for the proposition that the first sale limited the right of distribution only for copies originating within the United States.
The 6-3 majority opinion, written by Justice Breyer, relies primarily on a textual analysis. The Court also noted that the plaintiff’s interpretation of the Copyright Act would, if accepted, lead to a number of unacceptable results such as libraries needing to get permission to circulate copies of books purchased overseas. The Court acknowledged that its ruling would make it hard for copyright holders to engage in price discrimination, stating that it could find nothing in the statute of the Constitution amounting to a preference in favor of “market division.”
As an academic, I’m particularly curious about effects of this latter statement in the future interpretation of para-copyright provisions. To the extent that the Copyright Act has been interpreted in ways that support the use of Digital Rights Management to limit free use of copyrighted works for the purpose facilitating price discrimination, it’s possible that the Supreme Court has sent a signal that these interpretations stand on shaky ground. Of course, we can’t know that until the proper case makes its way to the Court, but Breyer’s opinion at least opens the door to the possibility that the Court is making its opinion about these issues known.
Yesterday, Bloomberg Businessweek published a piece by Charles Kenny calling for the reduction of IP, particularly patent. An interesting component of Kenny’s argument is that patent is now a drag on GDP, and that trimming patent protection would raise GDP and – by extension – help raise tax revenue to solve the deficit problem. It’s an interesting argument, though I doubt it will get much traction in the present political environment. For better or worse (probably worse), we’re in times where more IP is seen as pro-business and pro-job, even if growing numbers of business executives are reaching the opposite conclusion.
By now, every sports fan has heard about the hoax apparently perpetrated against Notre Dame linebacker Mantei T’eo. And though most of the discussion has revolved around whether T’eo can credibly claim to be a victim, a few people have begun discussing whether the perpetrator of the hoax bears legal liability for what he’s done. Most of these discussions talk about the difficulty of holding the perpetrator liable.
Now, I realize that for a man with a hammer, everything looks like a nail. Nevertheless, what about a copyright action against the perpetrator for taking the photos from someone else? Granted, it’s not the most traditional use of copyright, but it doesn’t seem so far-fetched to me. Maybe there wouldn’t be a lot of provable damages, but willful statutory damages (up to $150,000 per infringement – and I believe the perpetrator used multiple photos) could get large enough to really hurt, especially since the perpetrator isn’t a wealthy man.
The AP reports that the founder of Megaupload has started a new file sharing venture. Apparently, the new venture allows users to upload large files for downloading by others. The new service also apparently includes encryption that prevents the service from knowing what has been uploaded. This is supposed to shield the new venture from liability. However, given the possibility of applying Grokster-type inducement, I’m not sure it will work out as the service hopes.
Perhaps the most interesting thing about this story is the apparent inability of criminal prosecution to deter services from facilitating copyright infringement. Throughout the “war” on Internet copyright infringement, the assumption has been that powerful penalties will deter people from infringing. In this case, however, Megaupload’s founder is facing extradition to the U.S. to face prosecution, yet he has pretty much come right back for another go. Makes me think that now, more than ever, security for digital works will always be evanescent, at best.
As the New York Times reported, the title of the album says it all. Apparently Sony has released for limited sale a number of old Bob Dylan recordings strictly for the purpose of retaining copyright. If Sony had not done so, the recordings would have fallen into the public domain.
The story makes me wonder about how we could better tailor our (in my opinion) overly long copyright term of life + 70 into something more workable. I’m not naive enough to think that we’re likely to shorten the term of copyright. But what about requiring publication of a work as a prerequisite to bringing suit (or perhaps monetary damages or injunctive relief) at any time after the death of the author? Or what about requiring publication within the last 5 years before suit for any work that is more than (for example) 35 years old?
The Dylan story suggests that Sony would not have released these recordings unless it was faced with loss of copyright. Presumably this was the case because a sufficient market for the works does not presently exist. Sony’s willingness to publish implies either that they think the chance of profit in upcoming years is reasonable or that there is intrinsic value in holding copyright to unprofitable recordings. Either way, I think it’s smart to consider how we might use the threat of a diminished copyright right to get better public access to presently unpublished works.