“First Sale Doctrine and “Fair Use Doctrine” Clash in Digital Environment


Anyone who’s ever worked in a book-resale environment knows of the “First Sale Doctrine.”  It essentially means that once the book has been purchased it can be resold without compensating the author or publisher.  There are wrinkles to the law, but that’s essentially what it means.

Digital books create a new playing field.  And I find it remarkable how the “Fair-Use Doctrine” fits in with this.  I discussed this law in detail via a past Newsletter article.  The primary focus involves how much of something can be copied before reaching the status of “too much.”  I know, define “too much.”  But “too much” is the issue.  Because if “too much” is determined to be the case, a new book will need to be purchased.  And the author/publisher/distributor, and a few other entities, then receive compensation.

I bring up that matter now because the latest ruling applies to print only.   In adjudicating this case, the jurist made the brilliant assumption that the digital environment will sort of take care of itself.  I guess this really means that no way exists to determine how often something can be viewed digitally, in segments.  This might make sense for books in the public domain.  However, shouldn’t authors’ copyright laws still apply?

Watermarking can control distribution.  And other methods will be developed to keep material from remaining on someone’s hard drive in perpetuity.  But this will take time to both develop and implement.  In the meantime I’d like to see some weight placed on authors’ rights.  Rights that get trampled on at every turn these days.

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