iPod for the Queen: The Inter-Continental Copyright Kerfuffle
By: Laura Nastase1
President Barack Obama’s April 2009 trip to Europe has been exhaustively chronicled from political, fashion, and protocol perspectives. But commentators have skipped almost entirely over the fact that President Obama may have breached both copyright law and the iTunes licensing agreements by giving Queen Elizabeth II an iPod. True, these are not matters of national security, but surely they deserve at least as much news coverage as the First Lady’s hemline.
Creators and users of content protected by intellectual property laws are currently grappling with the question of how to apply United States copyright law, specifically the First Sale Doctrine, to digital media. Complicating matters in this case is the iTunes licensing agreement, which restricts what a user can do with lawfully purchased digital products.
So was President Obama’s gift to the Queen of an iPod filled with photographs and video of her 2007 trip to the United States, as well as songs and accessories protected by the First Sale Doctrine?2
The First Sale Doctrine was drafted to ensure that gift giving and resale of books and other copyrighted media does not open an individual up to prosecution.3 It allows individuals who own books, dvds, computer programs, and other copyrighted works to give their originals away as gifts, or even resell them, despite the fact that the copyright owner has the exclusive right of distribution. However, can the First Sale Doctrine work in a world where there is one copy of a song on a White House computer, and another on the Queen’s iPod? After all, the item that has been purchased from iTunes, has not been fully transferred to the Queen of England. A portion of it remains in bits and bytes on a hard drive. Even if the data on the hard drive is deleted once it is transferred to the iPod, what about the notoriously ambiguous iTunes licensing agreement?
The agreement states that iTunes products are only available for personal use. Is a gift to the Queen of England a personal use? Gifts to heads of state are generally public gifts. While they are presented to one particular person, the understanding is that they are gifts to an institution of leadership. Thus, how can a gift, purchased with public funds and given in an official capacity from one head of state to another be merely a personal gift for personal use?
The laws and licensing agreements are sadly inadequate in answering these questions. Let me clarify, it is not the gift of an iPod which is a problem, but rather the accompanying legal entanglements. In a digital world where the most important property is intellectual, leaving these questions unanswered is a recipe for disaster. Congress should act quickly to ensure that the principles of the First Sale Doctrine are upheld in the face of evolving technology.
1 Fordham J.D., 2009; Proudly served as Senior Articles Editor, Vol. XIX, Fordham Intellectual Property, Media & Entertainment Law Journal.
2 Helene Cooper, Obamas Give Queen Elizabeth an iPod, N.Y. TIMES, Apr. 2, 2009, at A13.
3 17 U.S.C. § 109