From Copyright and Technology:
When you hit a “buy” button on Amazon, iTunes, or another digital content retail service, do you actually own what you’ve paid money for? If you look at most retailers’ terms of service, the answer is no: you are licensing it on some terms that the retailer sets, which usually don’t amount to ownership. In their important new book, The End of Ownership: Personal Property in the Digital Economy, legal scholars Aaron Perzanowski and Jason Schultz assert that this is a problem, and that the law is the best way to solve it.
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[The book] raises this fundamental issue: as more and more objects in our daily lives incorporate software, and that software is conveyed to people under contract (license) and not ownership, we don’t really own those objects anymore. Instead, we’re subject to limitations on our use and handling of those objects that are imposed by both law and technology. DRM is the shorthand they use for that technology, even though some of it doesn’t fit the classic definition of DRM.
The authors take it as axiomatic that ownership is an important concept that needs to be preserved in the digital age — at least as a choice we can make when we obtain goods (physical or digital). The book starts out with an explanation of the three types of property that the law recognizes: real property (like real estate), personal property, and intellectual property. We have a longstanding intuitive grasp of these types of property; Perzanowski and Schultz explain how laws embody and facilitate that understanding. They explain differences among these types of properties in terms of the balance of rights between owners and non-owners and, more importantly, what happens when you alienate (sell, give away, lend, or rent) your property.
The legal construct of exhaustion covers this.
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Perzanowski and Schultz say that it’s important to establish an ownership right in law, which should allow users to use and alienate digital property in any way they choose. That includes interoperability across “walled gardens” like Amazon’s Kindle e-book or iTunes’s movie ecosystems as well as the right to resell files.
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Instead, their proposed solution is to create a law for digital first sale along the lines of current fair use law. The fair use law (Section 107) contains four factors that a court should consider when deciding whether a copy that a defendant in a copyright litigation made is lawful. One of those factors is the effect that the use has on the market for the work being copied. Similarly, Perzanowski and Schultz’s digital first sale law contains several test factors, one of which is whether the alienation affects the market for the work. They point out that copyright law already sets exhaustion boundaries for music and software by preventing rental, lease, or lending.
Link to the rest at Copyright and Technology and thanks to Ruth for the tip.