Copyright Control

Copyright law is "interesting" to say the least — and incredibly contentious. For some, it is an evil that stifles progress. For others, it is all that stands between them and bankruptcy. As with anything, the nature of copyright is not black and white — there are not just shades of gray, but a whole rainbow of copyright colors.

One item to clarify before going forward: copyrights should not be confused with patents, which are even more contentious, especially in the software world. Copyright, at least in the United States, is automatic — copyright attaches to content as soon as it is created. (The option exists to register ones copyright, but doing so provides protections in addition to those imparted automatically.) Copyright protects creations — written material, works of art, musical compositions, etc. — from being used or claimed by others, much the way trespassing laws protect ones home from being used or claimed by others and a whole host of laws protect ones children from the same.

Patents also involve creations — inventions, advancements, and technologies. Like copyright, they prevent unauthorized use, in their case of an invention, but do so for a limited time. Unlike copyright, they are not automatically attached at creation, and indeed, may not be granted at all. Patents are something of a reward for openness — an ironic twist considering their use, we admit — the patent holder can only be granted exclusive use of their creation by patent after they reveal the details of their invention to the public at large. (The etymological root of patent is patere, meaning "to be open.")

Copyrights are categorized primarily by where one stands. If one wishes to make use of copyrighted material and is prevented from doing so, they are evil and hamper progress. For those whose work is protected from unchecked use by any at all, copyrights are more likely to be considered a blessing that protects ones livelihood and fosters progress by allowing them to continue to create. (It is, after all, hard to paint the Mona Lisa if one is too poor to buy paint.) As in all things, moderation is key. Using copyright laws to prevent others from printing copies of ones book for their own profit is one thing — preventing fans from writing stories about the characters for no profit but their own enjoyment is entirely another.

One of the better points of copyright law — at least in our opinion — is one that has recently been high-profile in the courts. The provision in question is the first sale doctrine, which provides a sort of middle-ground between copyright holders and their customers. Cutting out the hundred years of court decisions and Congressional enactments, the doctrine is that, once you sell a copy of your work, you lose control of that copy. That isn't to say that buying a copy of a copyrighted work confers the right to start selling photocopies of it, but it does confer the right to give away or sell that copy.

The doctrine has been under fire, at least as it relates to software, from a company called Autodesk, which sells a software product known as AutoCAD. Software makers have long asserted — with mixed results — that they don't sell copies of their software, they license them. One eBay seller, Timothy Vernor, ran afoul of this dubious designation while selling a copy of AutoCAD on the auction site. The software was a properly purchased copy, not pirated or otherwise illegal in itself, but as large companies are wont to do, Autodesk issued a DMCA take down notice, which eBay executed not just by canceling the auction, but suspending Vernor's account, which just happened to be a large part of how he pays his bills.

The Digital Millennium Copyright Act is, without question, one of the most frequently abused laws on the books. If the Computer Fraud and Abuse Act is the catch-all for internet crime, the DMCA is ten times over for copyright law. If you want something off the internet, the quickest way to be rid of it is to issue a DMCA notice, regardless of whether there is any basis for it or not, and that's exactly what companies like Autodesk do. There is recourse, however: Anyone who knowingly misrepresents that an infringement has occurred, or falsely represents that a take down was the result of a mistake, is liable for damages for their conduct.

Many believe that a take down notice is final — that once it is issued, the content in question must be removed by the ISP, and it is barred from restoring it. This is not the case, however. The affected party has the right to file a counter-notice denying that the material is an infringement, and if they do so, the ISP must restore it — the DMCA requires that the ISP wait ten days after receipt of the counter-notice, but not longer than fourteen days. If it fails to do so, then it is liable for damages from its failure, just as it would be if it had failed to remove the content initially. Unfortunately, the ISP is not required to disclose that this remedy exists. The only counter-counter-notice available to the original accuser is to file a lawsuit against the infringer.

It Vernor's case, he moved first, and sued Autodesk for damages, on the grounds that a) the first sale doctrine protected his sale, and b) his income was seriously damaged by the suspension of his eBay account. Autodesk, as most software makers do, insisted that the doctrine could not apply, because they didn't sell Vernor a copy, they licensed it to him. The Court, however, didn't buy it, with the United States District Court for the Western District of Washington ruling last week that Autodesk does indeed sell its softwarePDF, and it is thus subject to the first sale doctrine.

The Court appears to have struggled with conflicting precedents regarding the nature of software distribution, but eventually held that it is indeed a sale and not a license. It does not appear to have struggled with Vernor's allegations of abuse of copyright. The Court's order stated quite clearly that he failed to offer sufficient "argument or authority," and that in any case, the ruling that Autodesk could not prevent the sale rendered the matter moot. What was most clear, however, was that Autodesk lost.

iTWire's David Heath predicts three results of the decision:

Firstly, the lawyers who write software agreements will suddenly find they have more work than they can cope with – making sure that this can't happen from now on.

Secondly, it will definitely be appealed, but considering that this final judgement [sic] differs very little from the interim judgement [sic] from May 2008, this is unlikely to succeed.

Finally it will give strength to those who support the argument (first proposed by Borland in the mid 1980s) that the software be treated, for copyright / licensing purposes "just like a book."

We suspect the lawyers are already writing — if they didn't start the day the suit was filed. Appeals are almost as commonplace as DMCA notices, so that will be along before Vernor has his eBay account returned. As for the final, it would appear, at least from the bench, that it has already happened.

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