DISQUS

Walter_E_Wallis · 2 years ago

There is an increasing attitude in working software to prohibit transfer of ownership. I bought it, I carry it on the bools as an asset, and yet if I can no longer make personal use of it its value goes to zero.

Steve R. · 2 years ago

The assertion that including "use" as a protected consumer right would be an "expansion" of fair use is logically flawed. I have trouble with statements purporting that a copyright holder is somewhow giving the consumer a right that the consumer already possess. ("I like the current framework that allows copyright owners to rely on copyright for default rules, but allows them to grant more freedoms via licensing.)

The reality is that the content producers are attempting to expand their control over a product by depriving the consumer of uses that they have historically possessed.

For example if I buy a book I can read it anytime and anywhere that I want. Technology has "liberated" the content producers to impose unilateral restrictions on content. For example, the use of region encoding for DVDs, or the use of DRM so that music played on a Zune will not play on an iPod.

Companies have an entitlement to segment the market through price. This can come in the form of hardback versus paperback, a DVD of just the movie itself or a 5 Disc DVD collectors edition. Content producers do not have a right to restrict a consumers rights under the auspices of "granting" something that can't be given. The consumer has an intrinsic right to use the content. Including "use" under first sale
is not an expansion of copyright.

Keith Irwin · 2 years ago

I believe your argument that a world with less licenses would result in more contracts, however, I have trouble believing that these contracts would effect ordinary retail consumers. A world in which ordinary retail consumers have to deal with less licenses in exchange for businesses having more contracts sounds like an improvement to me. Currently, a consumer has to have an understanding of copyright law in order to know what they can and cannot do with something they own. Most people are not aware of the restrictions on renting out certain things or public performances. Simplifying the copyright law to allow for any use other than copying would bring the law into balance with most people's sense of what's fair and appropriate and allow us to have a law which isn't routinely violated by well-meaning citizens.

Now, I should argue why I believe that the contracts generated by a decrease in the restrictions of copyright law would not trickle-down to ordinary consumers. First off, the example of there being a click-wrap license every time a CD is inserted is rather silly. Since the possessor of a CD already has the right to play it, a license to play it is not needed. As such, any contract which purports to grant this right in exchange for certain provisions would actually be granting nothing. A contract which takes rights away from one party and gives them nothing in return is too one-sided to be legally enforceable.

An ordinary sale of a physical good is not something which media companies are going to be able to easily impose a contract onto. Doing so would require that sellers only sell to customers who agree to certain contracts, and this is something that retailers would not agree to. It is easy to grant additional rights to the possessor of something, but quite difficult to take away the rights granted by law. In truth, expanding the use right makes this more difficult, not less difficult since currently they can claim that only certain uses are permitted and that they are authorizing additional uses in return for prohibiting others, thereby enabling them to present the consumer with contracts which are not one-sided.

PC software routinely comes with click-wrap or shrink-wrap licenses because there are additional rights which the software can grant the user (permission to make a copy in order to install the software) in order to take away other rights (reverse engineering). If all users were given the right to install any software that they owned, then companies would not have click-wrap or shrink-wrap licenses on the software, thus meaning one less contract in the life of an ordinary user. The obvious example of this are video game consoles whose software does not come with a license because such a license would not be enforceable since playing the video game does not require making an additional fixation of the work. When the consumer has all the rights they need to use something they do not need to enter into a contract, and hence expanding use rights would lead to less contracts in the daily lives of users.

Issues relating to things which are not for resale are already governed by contract since elsewise the doctrine of first sale would allow for resale. Those are currently not a copyright issue and expanding use rights would not change that.

Keith Irwin

David · 1 year ago

Here is an interesting aspect of some glaring confusion in the video game industry. Video games are sold, through retail merchants. Yet, video game publishers are attempting to assert an End User License Agreement on the transaction. The merchandising of the games makes not mention of an enclosed licensing (in some cases precluding the ability to sell) agreement. The consumer has not engaged in any contractual relationship regarding the licenses (shrink wrap, click-through, or other soft acknoledgement). The video game publishers sell their products primarily for "at-home" use, and deter other uses through the EULA. However, use is not determined through the EULA, but by "First Sale" and "Fair Use" as identified through copyright law. Recently, a large video game publisher has filed a suit against a company on this particular issue. Activision v FragIsle. The Plaintiff appears to be claiming a licensed relationship with the manufacturer, even though they are purchasing commercially available game software. It will be interesting to see how this plays out.