Joseph Gratz didn't scour the Internet looking for a copy of the 1904 novel "The Castaway" because of Hallie Erminie Rives' fine prose.
The opening of that book should make that clear enough: "A cool breeze slipped ahead of the dawn. It blew dim the calm Greek stars, stirred the intricate branches of olive-trees inlaid in the rose-pearl facade of sky, bowed the tall, coral-lipped oleanders lining the rivulets, and crisped the soft wash of the gulf-tide. It lifted the strong bronze curls on the brow of a sleeping man who lay on the sea-beach covered with a goatskin."
Instead, the precocious 29-year-old Durie Tangri partner was after a note inside the book written by publisher Bobbs-Merrill that said: "The price of this book at retail is $1 net. No dealer is licensed to sell it at a less price, and a sale at a less price will be treated as an infringement of the copyright." That little note was the basis for the 1908 U.S. Supreme Court decision Bobbs-Merrill Co. v. Straus, 210 U.S. 339, in which the high court defined the first-sale doctrine, holding that copyright law didn't give the publisher the right to impose any such restrictions on the sale of its books.
And that holding will be part of Gratz's argument before the 9th U.S. Circuit Court of Appeals, just set for June, that his client Troy Augusto isn't infringing UMG Recordings Inc.'s copyright by reselling the label's promotional CDs on eBay. The CDs, from bands like No Doubt and Hinder, which were handed out to music reviewers and found by Augusto at record stores, have a similar label that reads "PROMOTIONAL USE ONLY -- NOT FOR SALE."
"We think it's exactly the same case," said Gratz, who is doing the case pro bono along with the Electronic Frontier Foundation. "It's about whether a copyright holder has the right to control the further purchase and sale of a particular genuine authorized copy after they've already chosen to send it out into the stream of commerce."
UMG v. Augusto is one of three similar cases dealing with the first-sale doctrine scheduled by the 9th Circuit for argument on June 7 in Seattle. The other two, Autodesk v. Vernor and MDY v. Blizzard, both deal with individuals reselling Autodesk and Blizzard software. (Augusto and Vernor both won at the district court, while MDY lost.)
The general question is: When you buy a CD or software, can you resell it or must you obey the orders of the software or music company?
That used to be an easier question to answer, says Miles Feldman, an entertainment and IP lawyer at Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor in Los Angeles.
"Traditionally, the first-sale doctrine has been a cornerstone of American copyright law -- if you buy that work in that embodiment you could burn it, put a bullet through it, drop it off a cliff," said Feldman, who's not involved in the cases. "The problem is you get into things that are easily copied. Then it's harder for content owners to control the materials."
Advocacy groups like EFF and Public Citizen are working on the cases on the side of the individuals. They want people to be able to do what they like with software and music once it's been purchased.
Blake Lawit, who's representing Autodesk in its case, said that's a policy position, not a legal argument.
"The other side is challenging the long-standing practice in the software industry of licensing software," said Lawit. "The law supports Autodesk's position, and the other side is appealing to a bunch of policy arguments because the case law doesn't support them."
AutoDesk sued Timothy Vernor for copyright infringement after the Seattle man tried to auction off four packages of Autodesk software on eBay. The software company argued that its license agreement doesn't allow for reselling. Like Augusto, Vernor prevailed on summary judgment in the lower court.
Durie Tangri's Gratz was also using eBay to find the copy of "The Castaway." He eventually found one with the note with the help of the EFF's Fred Von Lohmann.
Although he likes the case law, Gratz was less enthusiastic about the book, which he called a "dreadful fictionalization of the life of Lord Byron."
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