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A First Sale Legal Hack?

July 17th, 2012 · 11 Comments

Here’s a little puzzle for the lawyers out there. It’s pretty obviously copyright infringement to buy a legitimate copy of a CD, make a copy, and then give away or sell the copy. But how about the reverse? Millions of people in their 20s and late-30s have large CD collections acquired back in Ye Olden Tymes, when Australopithecus purchased music encoded on shiny plastic discs rather than our modern formats of MP3 and vinyl. Most of those shiny plastic discs are gathering dust in a closet somewhere, having long since been ripped to the hard drives and iPods from which we actually play them. Would it be legal to give away or sell those mouldering original discs while retaining the digital copy you actually listen to? And could the buyer then repeat the process, and on indefinitely?

Intuitively, the answer is: Of course not! That would be indistinguishable, in its practical effect, from the infringing act of selling or distributing an unauthorized copy. It would defy common sense for it to make a difference whether you keep the copy or the original. And when it comes to computer programs, the copyright statute is quite explicit: Archival copies have to be destroyed as soon as one ceases to be the lawful owner of the original purchased copy. On face, you’d think the same principle would have to apply to sound recordings.

Except it’s not obvious from the statute that it does, technically, and a little quick Googling didn’t turn up any cases directly on point. Here’s the probably-too-cute-by-half argument for why there might be a loophole here. The RIAA has been notoriously cagey about this—but even their attorneys have argued before the Supreme Court that the ubiquitous practice of copying a CD you’ve purchased to you hard drive (and from there to your iPod) is a protected Fair Use that doesn’t infringe the exclusive rights of the copyright holder. The Ninth Circuit implicitly relied on the idea that noncommercial copying for personal use is noninfringing in RIAA v. Diamond, which established (over the recording industry’s objections) that MP3 players are, in fact, perfectly legal.

Now the tricky bit. If the CD owner genuinely makes that copy purely for the purpose of personal use—not as step one in a larger plan to later sell the CD—that’s a lawful copy under the statute. The statute still limits the further copying, sale, and distribution of that lawful copy for anything other than personal use. But “retention” isn’t one of the exclusive rights protected by copyright. Except for the provision covering software backups, there’s nothing explicitly suggesting that a lawful copy can become unlawful without some further triggering action—again, copying, sale, distribution, rental, and so on. Now flip back to the original CD copy sitting in a closet. The owner has a clear right under the First Sale doctrine to sell that particular copy without authorization from the copyright owner. And I can’t find anything explicit in the statute requiring anything be done about lawful copies previously made when the original CD is legally sold or gifted. Obviously if you’re trying to follow the spirit of the law, you’d delete those lawful personal copies when you transferred ownership of your original copy—though that might actually be a trickier than it sounds in a household where music is shared among several people with iPods and laptops. But technically, “not deleting a copy” doesn’t appear to be an action that violates an exclusive right of reproduction, distribution, or display. And all the other allowances for personal use hinge on whether a particular copy was lawfully made—not lawfully retained. (It’s implicit in the whole idea of a “backup copy” that one would continue to use it if the original is lost or destroyed, of course, so it can’t be that continued use of the music is contingent on physical possession of the original CD.)

Assuming the appropriate intention on the user’s part, then, there’s no infringement when the personal copy is made—unless we’re prepared to accept that essentially every legal CD owner is either an infringer or listens to their digital copies only at the sufferance of the RIAA, which could revoke permission at any time. Under the First Sale Doctrine, there’s no infringement when the original is sold. And there’s no infringement when the copy is retained, because “not deleting something” isn’t generally an act of infringement. Your gut says this overall pattern of conduct has to be infringing—even if in practice it would be impossible to police—but it’s hard to actually pinpoint when the infringement happens if you hew strictly to the statute’s definition of infringement.

Since the result is absurd on face, I’m pretty sure this line of argument can’t be right. I’m just not sure where it goes wrong if we’re applying the actual statute and case law, as opposed to our intuitive feelings about what makes sense. Any IP lawyers want to throw me a life vest?

Tags: Law



11 responses so far ↓

  • 1 Sigivald // Jul 17, 2012 at 1:17 pm

    It may simply be that the statute does lead to that counterintuitive result.

    I view the moral aspect much as you do, viewing “buying the physical media” as a license to possess all the personal-use and backup copies I want, and morally losing that right if I re-sell or give away the original.

    (Not that lacking a moral right has even stopped me from downloading music, but I practice what I preach and do actually buy things I’ve downloaded if they end up getting listened to a lot.)

  • 2 Julian Sanchez // Jul 17, 2012 at 1:51 pm

    Well, there are clearly moral/legal disconnects in the other direction. If someone has paid for a legal copy of a CD that’s buried in a pile in a closet somewhere, I don’t think anyone would say it’s morally wrong to download a copy (or ask a friend to IM one over) after a disk crash, if that’s less hassle than rummaging through the junk for your physical copy. But I also don’t think there’s any argument that it meets the legal definition of infringement, since fair use only covers copies made from one’s own legally accessed original.

  • 3 Phillil // Jul 17, 2012 at 2:36 pm

    Fair use is an affirmative defense to an otherwise infringing act. In the unlikely event that the CR owner came after you for making a copy (and not, say, the distribution or sale of copies), showing that you had a right to make the copy, perhaps by producing the original, or perhaps by other methods, would be an element of the defense.

  • 4 Sigivald // Jul 18, 2012 at 3:36 pm

    What Phillil said; “I own a physical copy of it” is going to make it very, very hard for them to claim damage.

    (Ridiculous hypothetical: Say someone takes my original copy of Disc A and replaces it – unknown to me – with someone else’s original copy.

    If I make a backup, am I infringing because I made it from an original I didn’t own, even though I own an identical original?

    One imagines that in the real world nobody would ever consider prosecuting that case, but the legal issue is interesting.)

  • 5 ML // Jul 19, 2012 at 5:02 pm

    I actually sold all my physical CDs recently, figuring I had the digital copies so the CDs were just taking up valuable space. I never actually thought about the legality as I did it, it was just practicality to me. I’d feel worse about it if I hadn’t gotten pennies on the dollar for all those CDs.

  • 6 J Mann // Jul 22, 2012 at 10:51 am

    It’s a funny result, but if followed faithfully, it wouldn’t have much real world impact. If I can’t copy the digital copy from the device it’s currently on onto my next device, we’re really talking about one or two years of overlap. Once I sell the cd, it seems unlikely that I have the right to make additional copies.

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  • 8 Joel Snyder // Aug 22, 2012 at 12:23 am

    Just to throw another shot of gasoline on the fire, consider the case where you copy all your CDs, and put them in a box in the shed. Now, what happens if someone steals that box? Are you morally or legally obligated to delete the copies? OK, let’s suppose the shed burns down. Has your moral or legal obligation changed? Wait, let’s keep going: the shed burns down, but you can proffer a box of melted plastic which represents the CD, but cannot be played.

  • 9 Web Design Company // May 17, 2016 at 7:51 am

    Of course not! That would be indistinguishable, in its practical effect, from the infringing act of selling or distributing an unauthorized copy.
    Thanks for sharing this article for us, it is worth reading!

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