When you create these laws you have to be thinking about the institutions that are going to be able to invest in creating the innovations. First sale saves schools millions of dollars by allowing them to pass down those resources from class-to-class and student-to-student, instead of forcing them to buy new e-books every single year and triple their budgets. How does digital exhaustion affect schools?ĭigital exhaustion enables educational institutions and organizations to have viable models for reusing the digital media they’ve historically purchased for classroom use. So we already live in a “free-for-all” world our proposal offers a legal and legitimate way forward that balances rewards for copyright owners with reasonable consumer rights. People copy media all the time, and there is no enforcement. This happens on college campuses, in corporate workplaces, and among neighbors and friends.
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The average teenager can crack a DVD and have thousands of copies made in a day.
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But the reality is, people are already cheating the system. They should, but the traditional media industries and critics of our proposal are opposed because they worry that digital exhaustion would allow everyone to cheat the system. It seems as though consumers should already be able to sell or lend digital media. But if you say that it’s the owner of a “distinct” copy or an “original” copy or a “single” copy, depending on how you want to phrase it, that basically gets to the point. The current language of the Copyright Act says, “The owner of the particular copy….” “Particular” is the problem.
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If I want to enjoy it again, I have to buy it again, which means the copyright holder is going to get more money.ĭoes the current copyright language complicate the issue? Only one person at a time should enjoy this copy. What you’re doing is making a copy of them for the new owner on her media and destroying your original. Digital technology makes that complicated. The idea is that there shouldn’t be two copies, there should only be one.
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It would have to be within a reasonable time after you’ve transferred it. How quickly would someone need to delete the files? If you get sued, all you have to prove is that you, in fact, did transfer in a lawful manner and that you did delete all your products. So the way it gets enforced, in a sense, is only if you get sued. All I did was transfer this copy for the purpose of effectuating a first sale, or essentially exhaustion.” End of story. My defense could be, “I no longer have any copies. Then a record company decides to come after me and sue me. I want to resell this song and somebody says, “Sure, I’d love to buy that for 79 cents versus 99 cents on iTunes.” We do the transaction and I securely transfer the copies to just this person, and then I delete them all. Let’s make this very practical: I buy a song on iTunes.
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But how do you envision this could be enforced? In “Legislating Digital Exhaustion,” you suggest a transfer of ownership of digital media purchases that would require the seller to delete all of the copies of the transferred content, which makes a purchase of digital media equivalent to a purchase of traditional media. Recently, he sat with staffer Christine Perez to discuss the complex implications of his work on digital exhaustion. He is an advocate for applying the same exhaustion limits to digital media as exist in traditional media.
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In “Legislating Digital Exhaustion” ( Berkeley Technology Law Journal, 2015) and “Digital Exhaustion” ( UCLA Law Review, 2011), Professor of Clinical Law Jason Schultz explores not only the effects of digital exhaustion on both the creator and consumer, but touches upon the potential impact on external communities, such as software developers, schools, and libraries. Buyers do not have a regulated way to resell or even lend songs from iTunes or e-books they purchased on their Kindle. Today, however, the ability to resell and lend digital media is much further reaching. The buyer of a book, for instance, can resell, lend, donate, and even destroy it, and the owner of the copyright has no right to interfere. One of the most important principles in the act is the first-sale doctrine, also known as the exhaustion doctrine, which limits the control the copyright owner has on his or her printed work once it is sold. The Copyright Act of 1976 long preceded the digital age.