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Traditional copyright law maintains a balance of rights between the owner of intellectual property and the purchaser of a physical item that embodies the intellectual property. One such balancing method is the “first sale doctrine.” This doctrine, codified in 17 U.S.C. � 109(a), permits one who has legally purchased the work to give or resell the work to another person without infringing on the copyright owner’s distribution right and without obtaining the copyright owner’s permission. Therefore, the copyright owner’s right to control distribution of a copy of the work is limited to the first sale. Purchasers of that copyrighted work may then do as they please with it without consulting the copyright owner, i.e. purchasers may then sell, loan, share, give away or even destroy the original (however, the purchaser may not make additional copies). The first sale doctrine benefits the public by allowing libraries and used book and record stores to operate without obtaining permission from the copyright holder each time they lend or sell a copyrighted work. Section 117 of 17 U.S.C. extends the first sale doctrine to computer programs by permitting a licensee of a computer program to make adaptations or copies in the computer’s memory as a function of using the program, without infringing the software developer’s copyright. With “traditional” media such as books and records, the owner of a copyrighted item usually forgoes control of and access to that item when he or she sells it to someone else. Digital technology, however, makes it much easier for a person to duplicate a copyrighted work and share that copy with someone else while still retaining access to the copyrighted work. Therefore, should the first sale doctrine apply to electronic transmission of digital copies, and if so, how? The Digital Millennium Copyright Act (DMCA), enacted Oct. 28, 1998, changes copyright law to conform U.S. law to the World Intellectual Property Organization (WIPO) treaty, which requires “adequate protections” against circumventing technological protection measures. The DMCA prohibits circumventing access protection measures, not merely copy protection measures. The act requires that the Assistant Secretary of Commerce for Communications and Information and the Register of Copyrights jointly evaluate, inter alia, “the effects of the amendments made by this title and the development of electronic commerce and associated technology on the operation of sections 109 and 117 of title 17, United States Code.” SeeDMCA � 104(a)(1). This study is due Oct. 28, 2000. Id. One section of the DMCA that may have a great impact on the first sale doctrine is � 1201(a)(1)(A). That section provides that “no person shall circumvent a technological measure that effectively controls access to a work protected under this title.” Section 1201(a)(1)(A) may be at odds with the first sale doctrine because these technological measures frequently prevent one who has legally purchased a copyrighted work from selling it to another, as is generally permitted under the first sale doctrine. For example, a purchaser of a computer game (a copyrighted work) on a CD-ROM frequently must register, via the Internet, with the distributor. The distributor sends a password — a technological measure — to the purchaser, which the CD-ROM recognizes. Access control software on the CD-ROM also recognizes the computer the purchaser is using, and each time the purchaser wishes to play the game, i.e. to access the copyrighted work, the purchaser must enter the password and play the game on that same computer. Under � 1201(a)(1) (A), the purchaser cannot circumvent the password because it controls access to the work; it is in this manner that technological measures can prevent sales of a copyrighted works to others. LIMITATION COMPOUNDED Section 1201(a)(1)(A)’s limitation on the first sale doctrine is compounded by the broad definitions of its key phrases. The purpose behind this portion of the DMCA is to prevent piracy, i.e., to prevent unauthorized access to a work for which one has not paid, but the language in � 1201 (a) is very restrictive. To “circumvent a technological measure,” as defined by � 1201(a)(3)(A), means “to descramble a scrambled work, to decrypt an encrypted work, or otherwise avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” Further, � 1201(a) (3)(B) provides that “a technological measure ‘effectively controls access to a work’ if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.” This broad definition of a “technological measure” includes encryptions and electronic locks or passwords. Thus � 1201(a) sets forth a new violation: to circumvent technological protection measures that control access to copyrighted works, without regard to whether a copyright infringement has occurred or the method of the circumvention. The language of � 1201(a)(1)(A) applies only to circumventing measures which control access, not measures which control copying. One can see this distinction by comparing � 1201(a) with � 1201(b), which prohibits manufacturing and trafficking in devices that circumvent technological measures which “protect a right of a copyright owner,” that is, the (“traditional”) right of the copyright owner to distribute copies of the work. FAILURE TO MAKE INFRINGEMENT ELEMENT OF OFFENSE One problem with � 1201(a)(1)(A)’s failure to make infringement an element of the offense is that it fails to recognize that there are legitimate reasons for unauthorized access. For example, � 1201(a)(1)(A) prohibits one who purchases a software program that contains a bug from circumventing the access controls to correct the bug in the software. Note that in the computer game example, the purchaser’s access to the copyrighted work, which was lawfully obtained, is controlled by the copyright owner. The DMCA precludes the purchaser from circumventing the password even if, in so doing, the purchaser is not violating the Copyright Act (by making unauthorized copies or otherwise infringing). If the purchaser wants to lend the game to a friend or play the game on a different computer, as permitted under the first sale doctrine, such acts are prohibited by the DMCA because the purchaser must circumvent access controls to do so. A similar problem may affect the business community in the situation where a business purchases software to use on computers the business owns. If the business decides to upgrade its computer hardware and purchases new computers, the first sale doctrine permits the business to remove the software from the old computers and install the software on the new computers. However, if the software contains access control measures, the business may have to either violate the DMCA (and possibly suffer criminal penalties under � 1204) by circumventing those access control measures or purchase new software. New encryption systems designed to encrypt digital music files, such as that owned by NTRU Cryptosystems and embodied in patent 6,081,597, can encrypt the music specifically for one user to play on one device. This technology makes it impossible for the first sale doctrine to operate because the lawful purchaser of the digital music is not free to control the copy of the music even though, under the first sale doctrine, the copyright owner’s right to control the copy of the work should end with its first sale. The DMCA does provide a general savings clause, in � 1201(c), which states in part: “[N]othing in this section shall affect rights, remedies, limitations or defenses to copyright infringement, including fair use, under this title.” It is not clear, however, whether this includes the first sale doctrine as one of the “limitations or defenses.” Specifically, it is unclear whether this savings clause protects individuals who “access” works in violation of � 1201(a)(1), even if their access is for a lawful purpose, or how � 1201(a) and the first sale doctrine operate together. In the example above where an individual purchased a computer game, would the first sale doctrine or this savings clause permit the purchaser to lend the game to a friend where the purchaser would have to circumvent measures to give the friend access? BALANCE TIPPED By giving copyright owners more control to others’ access of their copyrighted works, has the language of � 1201(a)(1)(A) tipped the balance of rights in favor of copyright owners? Copyright owners may fear that, with digital technology and the easy ability to make and transfer “perfect copies,” the first sale doctrine may operate to permit pervasive copying and unauthorized distribution of copyrighted works. If purchasers did redistribute works free, this would decrease incentives to create works of authorship and destroy the copyright owner’s market. Copyright owners raised these concerns before, with the advent of photocopy machines and VCRs. See Sony Corp. v. Universal City Studios Inc., 464 U.S. 417 (1984). Copyright owners feared that the VCR enabled massive copyright infringement and that such copying and distribution would result in dwindling cable subscriptions and movie-theater attendance, but the television and motion-picture industries remain financially healthy. Nevertheless, the proliferation of MP3 file sharing Web sites has brought these fears to fruition as users copy and distribute MP3 files that contain copyrighted music (as well as MP3 files that do not contain copyrighted music or proprietary information). DIGITAL ‘FIRST ACCESS DOCTRINE’ Several groups, including the Electronic Frontier Foundation (EFF) and the Digital Media Association (DiMA) have suggested that a proper way to integrate the first sale doctrine in the DMCA is to create a digital “first access doctrine” whereby one could circumvent technological measures that control access to works for the purpose of electronically transferring works, provided that the transferor does not retain the original. The legislature could create a digital first access doctrine by amending the DMCA or 17 U.S.C. � 109 such that consumers who purchase works electronically may resell, lend or otherwise dispose of their copy of the work. The first sale/access doctrine would apply when a consumer transfers access or possession of the original work. The same technology used in encryption and blocking access to a work could apply to ensure that once the digital content is successfully transferred, it is electronically disabled or destroyed. Suellen W. Bergman, an associate at Atlanta’s Hassett, Cohen, Goldstein, & Port, LLP, focuses on Internet, technology, and intellectual property law. She may be reached at [email protected].

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