You know your copyright laws are broken when there is no easy answer to this question.
Traditionally, it has been the job of the “first sale” doctrine to enable gift giving — that’s the provision of copyright law that entitles the owner of a CD, book, or other copyrighted work, to give it away (or resell it, for that matter), notwithstanding the copyright owner’s exclusive right of distribution.
In the digital era, however, first sale has been under siege, with copyright owners (and even the Copyright Office) arguing that it has no place in a world where “ownership” has been replaced by “licenses” and hand-to-hand exchanges have been replaced by computer-mediated exchanges that necessarily make copies. But it’s precisely because first sale is central to everyday activities like giving an iPod to a friend, selling a used CD on eBay, or borrowing a DVD from a library, that EFF and others have been fighting for it in case after case.Second, even if the first sale doctrine applies to iTunes downloads, what about the additional copies made on the iPod? iTunes does not download directly to an iPod. So President Obama’s staff made an additional copy onto the Queen’s intended iPod. How are those copies excused? The iTunes terms of service say that downloads are “only for personal, noncommercial use.” Is giving a copy to a head of state a “personal” use? Seems more like a “diplomatic use,” doesn’t it? So copyright owners could argue that the copy on the iPod was not authorized, because it was beyond the scope of the iTunes “license.” And according to the typical rightsholder argument, any use beyond the scope of the “license” is a copyright infringement.
But does it matter here whether President Obama’s staffer first deleted the copy that is still on her computer? Should that matter?
And all of this even before you start asking what happens when the Queen connects her new iPod to her computer, thereby making even more copies (the UK, after all, lacks a fair use doctrine)…
Of course, no one thinks that copyright owners are going to send lawyers after either President Obama or the Queen over this. But none of us should want a world where even our leaders–much less the rest of us–can’t figure out how copyright law operates in their daily lives.
Image Source: ? John McNab