Doctrine of First Sale in Our Digital World

Doctrine of First Sale in Our Digital World

On March 26, 2009, the Queen held a reception for leaders attending the G-20 summit. President Barack Obama and his wife Michelle were the first dignitaries to meet the Queen. During their private meeting, President Obama and the first lady presented the Queen with a gift. The gift was a personalized iPod - complete with 40 show tunes and video footage of the Queen during her 2007 visit to Washington and Virginia – as well as a rare songbook signed by composer Richard Rodgers.

As the British media speculate as to whether Michelle Obama broke protocol by touching the Queen, the Electronic Frontier Foundation wonder if President Obama violated any copyright laws when he gave the Queen her iPod gift.

Traditionally, the “first sale” doctrine in the United States has allowed for gift giving. The doctrine allows the purchaser to transfer (sell or give away) a lawfully made copy of the copyrighted work without permission once it has been obtained. For example, the owner of a CD, book or artwork can give or resell that item, despite the copyright owner's exclusive right of distribution. However, the doctrine of first sale has often been questioned in our digital age. Many, including the United States Copyright Office, have commented that the doctrine does not have a place in a digital world where copyrighted material is not owned, but rather, licensed.  

One has to wonder how our marketplace and attitudes within it will be affected if the first sale doctrine – in the digital context - was to be abolished. After all, the concept of first sale is ubiquitous in our everyday life. The acts of giving a CD gift or re-selling a book on eBay were once simple and intuitive. The fact that they now exist and can be obtained digitally presents such complex issues. Now, it is not so easy to figure out what one can or cannot do with digital works.

Presumably, President Obama purchased the 40 show tunes songs from the iTunes website and placed them onto the Queen’s intended iPod. When it comes to iTunes, songs that are downloaded can be placed on an unlimited number of iPods or portable music players, but can only be placed on a limited number of computers. According to the Electronic Frontier Foundation, the iTunes terms of service is not explicitly clear as to whether a customer who purchases iTunes are merely licence holders and completely stripped of ownership. The terms of service mainly state that the downloads are “only for personal, noncommercial use.” What falls within the range of personal and noncommercial use?

In this case, it seems as though iTunes on the iPod were given to the Queen as more of a diplomatic use. Thus, copyright owners may be able to argue that the copy of the songs on the iPod was beyond the scope of the iTunes license and thus, considered to be a copyright infringement. However, what if you were to do the same, but instead give the iPod, filled with songs, to your best friend for his birthday? Would that fall within the range or “personal and noncommercial use?” While the Amazon MP3 terms of use expressly forbids any sort of redistribution, the iTunes service agreement is more vague on that issue. This leads to another point, and that is, if different online stores have different terms of service agreements, it makes it that much more difficult to adapt to our digital world.

While the digital world has afforded us with many opportunities we would not otherwise have, living and maneuvering in our digital world has also presented many challenges which we must adapt to. One would assume that if the iPod gift was clearly wrong, President Obama’s advisers would have picked up on it. All this is to say that, if a team of presidential advisers has trouble pinpointing what exactly is allowed and not allowed in our digital world, how are we, as unguided individuals supposed to do the same thing? At the same time, we must remember that our digital world is only in its infancy and with time, terms of service agreements will improve, we will become more accustomed to these types of transactions and ultimately, dealings in the digital world will become more intuitive. We also should not be discouraged by the fact that President Obama and his advisors were uncertain of the relevant copyright law. After all, the fact that President Obama is the first American president to use e-mail and carry a Blackberry is indicative that the White House is only beginning to embrace emerging technologies.