Re: Fw: Amazon's Ebook License A Scam, Says Doctorow

On 1/15/2010 2:37 AM, joseph harris wrote:

[snip]

> Correct me if I am wrong, but it is within the power of the copyright
> holder to restrict onward use.

OK, you're wrong. :-) Or at least you're wrong in the United States. 
What Mr. Bezos and Mr. Doctorow are referring to is the "Doctrine of 
First Sale." This doctrine allows a purchaser to transfer any lawfully 
made copy of a copyrighted work without permission once it has been 
obtained. This doctrine was recognized by the U.S. Supreme Court in 1908 
(see Bobbs-Merrill Co. v. Straus, 210 U.S. 339) and subsequently 
codified in the Copyright Act of 1976, 17 U.S.C. § 109.

When you think about it, this decision makes a lot of sense. The U.S. 
copyright law only gives authors a monopoly (allegedly for a limited 
amount of time) to make copies of their work. When the tangible 
expression of a copyrighted work (e.g. a printed book) is transferred, 
other than by copying, there is no infringement of that legal monopoly. 
Note that the United States does /not/ recognize the concept of moral 
rights prevalent in Europe.

Of course, it is possible to create a contract between a copyright 
holder and a purchaser, but that contract and its terms must be clearly 
evident, and is a function of contract law and not the grant of 
copyright. Further, the contract is only between the copyright holder 
and the original purchaser, and absent further contracts where the 
copyright holder can be deemed a third-party beneficiary, there is no 
privity of contract between the copyright holder and any third party.

I'm certain that what Amazon is attempting to do with it's "license" is 
create the very kind of contractual obligation that it cannot achieve 
through copyright law.


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