A Nice Bit on the Impact of “First Sale”

In a Copyright Ruling, the Legacy of the Betamax [pdf] (See Justices Permit Resale of Copyrighted Imports [pdf])

Before Napster and LimeWire, before Megauploads and the Pirate Bay, media companies’ epic struggle against copying, piracy and generally losing control over their creations can be traced to a legal fight more than 30 years ago over a device that has long since passed on to the great trash heap in the sky: the Sony Betamax.

[…] Last week, the Supreme Court made another call that could have equally far-reaching implications. The ruling referred only to printed books, another technology that predates the Internet. Yet it, too, is likely to reshape the information economy in unexpected ways.

In a 6-to-3 decision, the court took sides with Supap Kirtsaeng, a Thai math student at Cornell who generated roughly $900,000 in revenue reselling in the United States cheap textbooks that his friends and relatives sent from Thailand.

[…] The decision picks at the scab of an argument that has raged since the first copyright law was enacted in 18th-century Britain: how to balance the interest of copyright holders to profit from their creations — giving them an incentive to create more — against the social goal of promoting access to the movies, books and software programs they create.

Like the Betamax decision in 1984, the Supreme Court’s ruling last week underscores the challenges placed by globalization and information technology on the very idea of protecting intellectual property. It adds to a maze of laws, legal decisions and technological barriers governing what companies and people can do with their stuff in the new economy. And it will probably change the way companies deliver media.

Kirtsaeng v. John Wiley & Sons, Inc. [local copy]; see also Imagining a Swap Meet for E-Books and Music [pdf]

Nothing New Here, But Nice To See It’s Getting Attention Again

From “The Copyright Rule We Need to Repeal If We Want to Preserve Our Cultural Heritage” [pdf] — critiques familiar to those who complained about the DMCA when it was first proposed.

Opponents of the DMCA anti-circumvention provision claim that the law threatens consumer control over the electronic devices we buy, and they’re right. But the stakes are much higher than that. Our cultural history is in jeopardy. If the DMCA remains unaltered, cultural scholarship will soon be conducted only at the behest of corporations, and public libraries may disappear entirely.

That’s because the DMCA attacks one of the of the fundamental pillars of human civilization: the sharing of knowledge and culture between generations. Under the DMCA, manmade mechanisms that prevent the sharing of information are backed with the force of law. And sharing is vital for the survival of information. Take that away, and you have a recipe for disaster.

[…] The anti-circumvention provision of the DMCA was created primarily to protect DVDs; it did not anticipate our rapid shift to media-independent digital cultural works, so it is absurdly myopic when it comes to digital preservation.

To properly preserve digital works, libraries must be able to copy and media-shift them with impunity. It may sound strange, but making a DRM-free copy of a digital work is the 21st century equivalent of simply buying a copy of a paper book and putting it on a shelf. A publisher can’t come along and take back that paper book, change its contents at any time, or go out of business and leave it unscrambled and unreadable. But publishers can (and have done) all three with DRM-protected works.

So why don’t librarians just defeat DRM, as it is often possible to do, and jailbreak Kindles and iPads to collect these materials? Because it’s illegal, of course. And if these chronically under-funded institutions want to keep their funding, they need to stay above the board.