Letting Your Friend Borrow Your CD: Copyright Infringement?
Two weeks ago, Wired reported that Mumford & Sons’s latest album, Babel, contains fine print on the back that could expose individuals who lend the CD to friends to copyright litigation.
The fine print reads: “The copyright in this sound recording and artwork is owned by Mumford & Sons. Warning: all rights reserved. Unauthorized copying, reproduction, hiring, lending, public performance and broadcasting prohibited.”
The controversial term here is “lending,” which Wired claims means the band does not want fans lending Babel to friends. Though most albums contain copyright notices, conventionally they state only the album release year, the copyright owner, and a warning against unauthorized reproduction.
Wired states that Babel’s particular notice is “probably invalid,” citing San Francisco-based copyright litigator Andrew Bridges. Wired also quotes the intellectual property director of the Electronic Frontier Foundation, who says the first-sale doctrine protects downstream sellers and lenders.
The first-sale doctrine, codified at 17 U.S.C. § 109, provides that any owner of a lawfully made copy of a copyrighted work has the right to sell or otherwise dispose of his particular copy of the work without the authority of the copyright owner. The purpose of the doctrine is to allow the free alienability of goods.
Whether the provision is binding is not the end of the question, Bridges told Wired. “[I]f it is not binding, is it fraudulent?” he said.
Bridges was probably referring to “copyfraud,” a form of copyright misuse. Copyfraud refers to the practice of falsely claiming intellectual property rights that do not exist, with little or no legal repercussions. Professor Jason Mazzone, who originally coined the term “copyfraud,” has warned, “The limited penalties for copyfraud under the Copyright Act, coupled with weak enforcement of these provisions, give publishers an incentive to claim ownership, however spurious, in everything.” (For more information on copyfraud, see Professor Mazzone’s article, Copyfraud.)
Bridges explained that a case currently pending before the Supreme Court could have implications for foreign-made albums. Kirtsaeng v. John Wiley & Sons, Inc. presents the question of whether the first-sale doctrine applies to copies of copyrighted goods manufactured abroad and imported to the United States. If Babel was manufactured abroad and the first-sale doctrine does not apply, the notice on the back of the album could indeed be binding.
SPIN claimed to debunk Wired’s report, first by claiming that the copyright notice is not in fact new. According to SPIN, the sentence prohibiting “unauthorized lending” has been on albums for at least twenty years, spanning artists from Pink Floyd to Shania Twain. Next, SPIN explained that the notice is technically lawful in the band’s native United Kingdom, which is a member of the European Union. There, artists retain some rental and lending rights, though those rights are limited to unauthorized public, not private, lending. Thus, under SPIN’s interpretation, Babel’s notice does not purport to limit private lending–it speaks only to public institutions in the European Union, such as libraries.
SPIN’s article failed to convince Mike Masnick, founder of Techdirt, a popular technology blog. “[T]his is clearly copyfraud,” he declared. The problem, according to Masnick, is that Babel’s notice does not specify its jurisdiction or differentiate between public and private lending. Therefore, as written, it allows copyright holders to extend their rights beyond what copyright law protects without legal penalty. And while no one would enforce the prohibition against someone who lends the CD to a friend, the fact remains that it unlawfully restrains the free alienability of goods.
Masnick’s post prompted discussion among members of the Techdirt community. “[I]t depends on how you interpret the word ‘unauthorized,’” Techdirt member MrWilson suggested. “Does “unauthorized” refer to A) actions that are not expressly permitted by the copyright holder[,] B) actions that are not expressly permitted by the copyright holder but also not permitted by copyright law[,] or C) actions that are not expressly permitted by copyright law alone?”
As Masnick noted, whether the notice on the back of Babel is new or has been around for decades does not matter. The legally important questions are what it means, whether it is valid, and, if not, whether it is fraudulent. These questions are likely confined to academic discussion unless and until they appear on Congress’s radar—for now, an unlikely priority.