Re: [dvd-discuss] Report on Sec. 109 and 117 out

[Bryan Taylor <bryan_w_taylor(at)yahoo.com>]

It's about what I expected. 

Isn't it interesting that they made no mention of the Supreme Court case
recognizing that private viewing of movies is a first sale right? This despite
the fact that they explicitly consider the first sale rights of movie
purchasers? Sad, sad, sad.

Unfortunately, they missed my entire point because they appear to view "first
sale" completely incorrectly. First sale is the beginning of ownership of
ordinary property by the purchaser. That comes with all property rights not
specifically reserved to the copyight holder by laws made in accordance with
the Constitution. Because the first Supreme Court case (Bobbs-Merrill v Straus)
on the interplay between property rights and copyrights found that the right to
sell your property was one such property right, the copyright fascists latched
on to that precedent and equated the conclusion (right to resell) with the
totality of the principle. Judge Kaplan did this and so does the Copyright
Office. 

That view is profoundly wrong. One need look no farther than the plain text of
section 109 and Supreme Court cases like PREI, INC. v. COLUMBIA PICTURES, 508
U.S. 49 (1993) to find the unsurprising idea that property rights entail more
than just the right to sell. In particular, in PREI the Supreme Court agreed
with the lower court that private viewing of movies is a first sale right that
belongs to the owner of the copy, even when it occurs over the active objection
copyright holder. 

This wasn't even an issue in the case, though. The issue was whether that fact
was so obvious that Columbia's raising it was "sham" litigation. The fact that
the Court granted certiori on that issue says a lot, even if they didn't
ultimately decide that it was a sham. 

Property rights actually are property rights, while intellectual property
rights are not. The copyright fascists seems to get this backwards.

--- Wendy Seltzer <wendy@seltzer.com> wrote:
> As reported by Reuters, the Copyright Office' released its report on first 
> sale and archival copying today.
> <http://dailynews.yahoo.com/h/nm/20010829/wr/tech_copyright_dc_1.html>
> 
> The report:
> <http://www.loc.gov/copyright/reports/studies/dmca/dmca_study.html>
> doesn't appear to think that anticircumvention poses a problem for first 
> sale, but has some concerns about calling buffered streaming audio a 
> copy.  Several dvd-discussants submitted comments that were considered in 
> the report.
> --
> Wendy Seltzer -- wendy@seltzer.com
> Fellow, Berkman Center for Internet & Society at Harvard Law School
> http://cyber.law.harvard.edu/seltzer.html
> 


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