Can First Sale Doctrine exist in a digital age?

The First Sale Doctrine is an everyday part of life for used booksellers. If you are not familiar with the term it is essentially a limitation in the copyright act that allows the purchaser of copyrighted good to transfer (sell, lend, giveaway) said good without gaining permission from the copyright holder.  This limitation was recognized in 1908 after the case of Bobbs-Merrill Co. v. Straus, in which the publisher Bobbs-Merrill attempted to limit the price that the Macey's Dept. Store could sell their publications for.

This ruling has been, mostly, sufficient for regulating physical goods, however since the proliferation of digital media artists, producers, and consumers have been unsure how to proceed.  Can I lend someone my mp3 collection? Can I borrow a digital book from a library? Should a digital books have a lifespan?

I was reading a post on the Brave New World blog which got me thinking about this topic again.  If publishers want consumers to value digital books in the same way they value physical books they will need to solve this right of first sale, because until an eBook can be re-sold or in some way traded after initial use they will always be perceived like a permanent rental and something you don't actually own. 

In the Brave New World article they bring up an interesting service that I actually didn't know existed called ReDigi, who are currently being sued by at least one major record label.

Founded only last year ReDigi is different again and operates under the “first sale doctrine” legal concept, that allows users who buy a copyrighted item like a book or CD the right to sell it or give it away. ReDigi operates a ‘used music store’ where users upload unwanted songs and buy others at a discount. ReDigi claim that they can verify individual MP3 files were legally purchased and not ripped or downloaded from a file-sharing network. Interestingly the sellers must also install a ReDigi program on their computer that removes any copies of a song from the seller’s computer.

If publishers could get together and agree on a service like this which would allow the right of first sale to exist on digital files it would go a long way towards not only adopting digital media but literally "buying" in.  This is, of course, assuming you do not already prefer physical books, are not a collector of books and said books are not first editions, signed copies, leather bound, etc. In those instances this discussion is moot.

What do you think about digital books? Would a legal re-selling service make you more likely to buy e-books?

[Now Reading: The Difference Engine by Bruce Sterling and William Gibson]

Comments

[ed]

I can see a day where the original content owners will require one to use similar software to unlock the media, but this will only last until some bright kid somewhere hacks the system.

In the meantime it seems like a good compromise solution between protecting against digital piracy and retaining the value of ones purchase. Of course the limitation is that only willing participants will install the software in the first place.

[The Sixler]

DRM in its current form pretty much allows producers to completely ruin property rights including first sale doctrine, so I dunno why producers would downgrade their intellectual monopoly to benefit customers.

I also think that the system would fail because people would get around it like they get around current DRM, but since these smaller producers more willing to try the system suggestion wouldnt have access to the windfall profits that large producers would, they'd get crowded out of the market.

[Scott]

Sixler - I agree, producers would not give up their position easily. However to say that everyone would steal simply because they can also feels a bit of an overstatement. I think if producers respected consumers rights, and made it just as easy to buy and sell the media as it was to steal it people would generally prefer to do the right thing and support the producer. I realize there are a lot of if's in that statement but it shouldn't prevent us from trying to think of a better system.

[Capt. Chris]

The appropriation of the term 'book' for digital e-pubs is what is causing our industry problems; an e-pub is leased not bought and owned; those selling such leases should not be permitted to term them e-books!

[The Sixler]

scott - yeah I think it could work if enough small time producers bit the bullet and produced with first sale doctrine that could be uniformly agreed upon. If they could make a strong enough market presence, the idea may catch on. I don't say that everyone would steal, but if you consider the size of the pirating community, you can bet that some of those people would turn to this new media to pirate because it'd be much simpler than pirating products with hefty safeguards and DRM. And if only small producers used the new concept, they would be hurt more by piracy than big producers which used the old concept. Thats what I meant when I said that. But it is possible with enough support.

[Ramona]

I don't really see it working very easily, although it's an intriguing idea. Personally, what keeps me from buying e-books is the cost. I find it a lot less expensive -- considering how many books I read -- to buy used books. When e-books are less expensive, I might buy them. If I could buy a "used" e-book, I probably would.

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