Amazon Kindle Sparks Debate on First Sale Doctrine - Fordham Intellectual Property, Media & Entertainment Law Journal
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Amazon Kindle Sparks Debate on First Sale Doctrine

Amazon Kindle Sparks Debate on First Sale Doctrine

By BG

Amazon’s Kindle is the latest in a long line of devices aimed at remaking the most ancient of communication methods – the lowly book. But beneath the convenience of the new Kindle lies unanswered questions about the legal status of the books you buy.

As an ‘e-reader’, the Kindle downloads purchased books in electronic form and stores them on the devices’ memory for use. Book pages are displayed on an e-ink screen, closely resembling actual ink print with none of the normal eyestrain associated with reading from a computer monitor. The Kindle provides wireless delivery of purchased books over a normal cellular network. Users can browse and download books without ever hooking Kindle up to a computer.

As users amass more and more digital content in the form of MP3 files, PDF documents, and now “Kindle books,” some basic legal principles are being called into question. Namely, the first-sale doctrine.

The first-sale doctrine says that any value the copyright owner is going to realize from their distribution rights on their work must be made on the first sale of that work into the stream of commerce. Follow-on sales, at least in jurisdictions such as the United States that do not recognize moral rights, generate no economic benefit to the original artist.

The  first-sale doctrine works well under the model of physical distribution such as a paper book or an actual CD or DVD. Putting the issue of illegal copying aside, there is a tangible item the buyer holds that they can then re-sell should they chose to. By virtue of the physicality of the book itself, the user is able to pass on his or her purchase down the stream of commerce.

This entire model has been turned on its head with the advent of electronic content. No longer do users “own” the artist’s work – today, they “license” it. For example, Apple’s iTunes music store has no mechanism to allow the buyer to re-sell their legally bought music as they would a physical CD. Some services like Bopaboo have tried to implement such a mechanism, but legal questions about possible license violations arise.

Amazon’s Kindle similarly attempts to license the Kindle book purchase. The license agreement provides that the user “may not sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to the Digital Content or any portion of it to any third party.” Users are granted a perpetual right to view the content on their Kindle device, but not to remove their copy and transfer it to someone else in the private market.

Is this fair? Should a book bought in electronic format somehow have fewer rights attached to it than the physical copy? The legal question, then, is: should courts enforce the property-as-license setup when the licenses so closely track what was historically an ownership interest (and by virtue, a right to re-sell the purchase)?

As this area of law develops, courts will increasingly be presented with the question of how to treat digital content. As more and more property is digitized, it seems unlikely that the court will allow the first sale doctrine to be completely eviscerated by calling everything a “license” to content. Instead, as consumers begin to hold more of their property in digital form, courts will need to create enforcement mechanisms that allow the orderly transfer of property – digital property – to those who value it the most.

Chris Reid