HIVE EXCLUSIVE: Copyright Office Supports First Sale30 Aug, 2001 By: Joan Villa
In a legal interpretation that could propel video retailers into the digital age, a Copyright Office report to Congress upholds the First Sale Doctrine for downloads of movies and other copyrighted material to a computer hard drive or disc.
In a 200-page report that will reportedly be the subject of House Judiciary Committee hearings this Fall, the Copyright Office determined that “fixed” downloads could be sold, viewed, or shared as allowed under current First Sale provisions. However, a download that is viewed but not considered a “tangible” copy cannot be legally transmitted to another consumer, according to the report.
The First Sale Doctrine is “the bedrock of our industry,” says Sean Bersell, v.p. government affairs and member communications for the Video Software Dealers Association, who applauded the ruling.
“So the recommendation that the First Sale Doctrine applies to that [fixed digital] product is good news,” explains Bersell. “The problem is the Copyright Office didn't go the next step to address those technological and legal tools that some copyright owners are using to circumvent First Sale rights.”
Specifically, the report determined that the current practice of some services to require download recipients to agree to “end-user license” restrictions before viewing content was outside the study's scope, and did not recommend Congressional action. Such agreements are contracts that override the First Sale law, Bersell says.However, the report acknowledged that end-user license restrictions combined with access control technology that restricts viewing to, say, a 24-hour period, could change “the landscape of consumer privileges in the future.” Although currently the report found “no convincing evidence” of present-day problems, it said Congress may in the future consider statutory changes to protect consumers.
Although the report is a recommendation to Congress that the legislative body can choose to accept, reject or modify, Bersell says the Copyright Office's interpretation that digital downloads fall under the auspices of First Sale was “extremely persuasive” and would likely be given great weight. “Absent Congress overruling it, that pretty much settles the issue,” he says.