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.
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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
6 Responses
Perhaps the distinction should not be between “public” and “private” use but rather between use that is designed to produce income and use that is not, or use that is designed to avoid paying royalties to Steve Jobs and the artists involved and use that is more for convenience rather than avoidance?
Eric Holder should get on this post haste.
As far as Obama’s gifting of purchased iTunes songs, this is probably not actionable from a copyright or a breach of contract perspective. First, the iTunes license agreement specifically allows for authorizations of multiple devices, which could theoretically include the Queen’s iPod and the computer she connects it to. The first-sale doctrine may never need to be considered. Second, on a less serious note, and *in a Richard Nixon voice* “When the President does it, that means it is NOT illegal!”
If all files were erased from the original computer, an argument can be made that it does in fact comport with the spirit of the first-sale doctrine [17 U.S.C. § 109(a) (one with a lawful copy of the copyrighted work is entitled to dispose of the work either by a sale, rental, or any other means)]. However, music is subject to additional limitations on rental, lease, or lending [17 U.S.C. § 109(a)(1)(A)]. Digital files complicate the analysis further, because any legal first-sale distribution could also involve a copy being made.
On a related note, at least one start-up, Bopaboo.com, is attempting to create a business model whereby they help consumers sell their “used” digital music files. This sort of model poses far greater problems then the President’s actions. Does the first sale doctrine actually cover the re-SALE of digital music? Does § 109(a) only refer to Phonorecords, i.e., the physical embodiment of the music, not just the digital file?
Great points Jason. Also in terms of the Queen breaching any laws/licensing agreements by accepting the gift, she is protected by sovereign immunity.
My instinct is that giving someone an ipod with songs you have legally purchased should not be a copyright violation. As Jason said, you are allowed to authorize more than one computer or ipod to use your music. I also think that it is possible that a “public gift” can be for personal use– the Queen’s gift of a picture frame and picture can be seen as for “personal use” just as easily as an ipod. I also agree with Alex that the personal use distinction has more to do with using an item for profit than what kind of gift it is or to whom.
I do, however, agree with your fundamental point that the first sale doctrine needs to be clarified in an increasingly digital world. Whether or not the ipod itself is a violation is less important than the questions it raises about the state of the law.
I agree with Laura that our president may have breached, technically, the law. It is customary in the technology industry to consider the 1984 Supreme Court ruling, in the case of Universal Studios and Walt Disney Productions against Sony, the foundation of consumer electronics industry and computer media processing. The Supreme Court rejected the lawsuit, and said that the Betamax VCRs manufactured by Sony can be legally sold. In effect, that ruling allowed the VCRs to have a record button on the front panel. However, although this decision allowed anybody to make legal copies, the Court made clear that copies made with such a device are for personal use only. Therefore, yes, when you handout the copy to somebody else, you are in violation of the law. Many studios do not take legal action for such an offense, as long as those copies are not made in large quantities and mass-distributed. Because of that, even if President Obama was not our president but a regular citizen, nobody would take action against him. It is this ambiguity in how the law is written and how it is enforced that creates controversy and much comment. On a different note, the fact that Apple’s iTunes limits the number of copies one can make, by limiting the number of devices one can have copies on, it is in violation of the 1984 ruling as well, because that ruling does not limit the number of copies to any figure.
Laura, did you know that there are more than 6 million entries on Internet regarding the Queen and the iPod story. At the same time, Microsoft Word cannot find the iPod word in its spelling engine, and recommends bipod.
But lets go down to business. I personally expected the President to offer one of his beloved Blackberry as gift to the Queen. But I realized Apple is an American company, Research in Motion is a Canadian company, and we have to be patriotic in our gifts abroad.
The gift was done on April 1, 2009 and I decided to see the President Factor, how his gift impacted the stock price over this period of time. .
On April 1, 2009 Apple Inc., the maker of iPod, closed at $108.69, and last Friday the stock closed at $123.90, up 14%. Good.
Research in Motion, the maker of Blackberry, closed on April 1, 2009 at $45.62, and last Friday it closed at $68.76. Up 51%. Better.