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Category: copyright/fair use (Page 2 of 15)

Who Owns That Book?

PBS’s Media Shift blog discusses that question, which has been come very complicated in the age of digital books.

Analog books are simple: pay your money and ownership transfers to you.

More importantly, you have the right to resell the copy (love used bookstores!), give it to someone, loan it (the founding principle of libraries), or even rent it (if you can find willing customers).

It’s all part of copyright law and even has a name: the first sale doctrine.

The ruling in Bobbs-Merrill Co. v. Straus was subsequently codified in what is now Section 109(a) of the Copyright Act, which states that “the owner of a particular copy or phono record lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phono record.”

You would think the same principal would apply to digital copies of the same materials.

However, are you the owner of that digital copy of Stephen King or are you leasing the right to use it from the publisher?

Section 109(a) doesn’t define the seemingly simple term “owner” in this context and big publishers see in that an opportunity to apply the concept of pay-per-view (or per read in this case) if they can get away with it.

When software, music, and other media people think they own is added to the mix, the result is a giant copyright mess now being hashed out in the legal system.

As much as I like the iPad, Kindle and similar digital readers, this issue of not being able to easily share a book is the primary reason why I’m reluctant to pay for ebooks from Amazon, Apple and others, and canceled my Audible audiobook account several years back.

It’s also why schools and libraries, not to mention anyone who likes being able to pass along a good read (listen?) to friends and family, need to look very carefully at what they’re actually getting for their money when they decide to go digital.



Watch This

From the TEDxNYED event this past Saturday in New York, one of my favorite big thinkers, Lawrence Lessig with an excellent presentation on openness and the remixing of culture.

Although the theme of this great set of talks was supposed to be education, even in the broadest sense Lessig never really makes the connection.

So, it’s up to you. Every educator needs to understand how our intellectual property laws are making unwitting criminals out of our most creative students.

Fixing Fair Use

There’s a good reason why most educators don’t understand US copyright law, especially the Fair Use provisions.

Current fair use law is hazy by design; instead of laying out specific use cases, the law relies on the famous “four factors” about the purpose of the use, the nature of the copyrighted work, the amount borrowed, and the effect on the value of the original work. This can be maddening in many situations, because it is impossible to know in advance if a particular use qualifies.

Clarifying and strengthening fair use is one of the five major goals of Public Knowledge’s proposed Copyright Reform Act.

The current law provides for seven purposes in which fair use applies: “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

Among other changes, PK suggests adding three other areas: “incidental uses, non-consumptive uses, and personal, non-commercial uses.”

Incidental uses “involve capturing copyrighted works, where the copyrighted work is not the primary focus of the use–for example, capturing music playing over radio when filming a family moment.” Incidental use is hugely important to documentary filmmakers, for instance, who routinely capture copyrighted photographs hanging on walls or copyrighted shows playing on televisions in the backgrounds of their shots.

The second category, non-consumptive uses, “do not directly trade on the underlying creative and expressive purpose of the work being used.” In other words, a non-consumptive use might take the complete text of the novel, make a copy of it, but use it only as the input for a lexicographical analysis of style, not to produce a free e-book.

But it is the third proposal that might prove most controversial. “Personal and noncommercial uses” are said to “have little chance of harming copyright holders. At the same time, they are ubiquitous: every day we timeshift television shows via TiVo, create mix CDs for the car and iPod playlists to the gym, backup up our computer hard drives, and read books to her children before bed.”

Considering all the confusion over what the law allows us to do with media under fair use, not to mention the increasing number of law suits largely designed to intimidate average people from exercising their rights, these extensions and clarifications only make sense.

Unfortunately, big media companies will probably fight it with every dime they can find.

You Only THINK You Own It

If you own a product, do you then have the right to give or sell it to someone else? Millions of yard sales every year would seem to say “yes”.

And when it comes to intellectual property-based items (books, for example), the Supreme Court has even given the concept a name: the first sale doctrine.

However, at least one software publisher believes that piece of legality does not apply to their products. That they have the power to restrict an owner’s right to resell them.


Autodesk has appealed, arguing that so long as its license agreements recite the right magic words, it can strip purchasers of any ownership in the CD-ROMs on which software is delivered. If that’s right, then not only don’t you own the software you buy, but any copyright owner can simply recite the magic words and effectively outlaw libraries, used bookstores, and DVD rentals, among other things.

Ah, the magic of the end-user license agreement (EULA) which we’ve all had the pleasure of reading* during a long pause in the software install process. Right? :-)

Anyway, the EFF, which just celebrated their 20th anniversary, is involved in this and many other battles over consumer rights when it comes to digital property.

Unfortunately, most media companies these days, including software publishers, want to move away from the concept of “ownership” when you pay money for their products, whether it’s a physical package or digital download.

An idea that is only reinforced by files locked up with DRM, such as the books you buy for reading on a Kindle (something I hope is missing from Apple’s iPad book reader).

BTW, if you can afford it, contribute a few dollars to the EFF to help them continue defending our rights to own and control the media we pay for, no matter the format.

* I’ve read a few EULAs over the years, mostly so I can help people understand their fair use rights (the one that used to come with the Microsoft Office clip art collection was rather interesting). While I can’t tell you exactly what the EULAs say for any of the commercial software on my current MacBook, I’m pretty sure most read similar to Autodesk’s.

We Are Controlling Transmission

When it comes to having absolute control over the content they sell, big media companies don’t give up easily.

Or more accurately control over the content they want you pay for every time you watch it.


You may remember that at the end of last year, the FCC declined to give a small group of Hollywood studios the ability to turn off the video inputs that over 20 million high definition televisions rely on. Almost a year later, the MPAA is back, threatening not make content available, responding to year-old arguments while trying to pretend 2009 never happened, and making a lot of noise without saying anything new.

Fortunately, groups like Public Knowledge and the EFF are working hard to block the efforts of the MPAA and others who want laws mandating switches in your TV, DVD player, computer, DVR or future devices that would allow them to determine what you can and cannot do with the media you’ve already paid for.

Which reminds me, I still haven’t put Handbrake on my new machine. Get it while it still works. :-)

The graphic comes from Wikipedia and is here because reading about this issue always seems to trigger the opening narration from the 60’s TV series The Outer Limits (“There is nothing wrong with your television set…”) in my warped little mind.

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