Tuesday, June 07, 2005

Why you can rent a novel but not a music CD

As a college student, I really came to love used record and book stores. Sometimes I'd find the most amazing books and albums that had been out of print for years. And sometimes, I'd be able to find brand spankin' new stuff that I just couldn't afford at Borders or Tower Records.

Later on, I was still broke but in grad school studying journalism. I started to learn about copyright law. More important, I started to get to know authors who were just as broke as I was but who didn't have a light at the end of their financial tunnel in the form of earning a commercially viable degree. Copyright was more than an abstract concept to them -- article sales and royalties paid their rent and kept food on their table.

Armed with just enough copyright knowledge to keep me out of court for libel and my new insights into the working author's life, I saw used bookstores and CD shops in a whole new light. All these books and albums for sale -- and no money to the publisher! No royalties to the authors! Holy shit!

Was the FBI gonna come busting down the doors of Half Price Books for copyright infringement someday? Because it all certainly seemed like a violation of the spirit of copyright -- the stores were doing a pretty brisk business, and every used copy sold was money that never reached the creator. But still, my author friends visited the used shops just like everybody else did, and for the same reasons: they wanted stuff that was not available elsewhere, or they just couldn't afford to pay for new.

While some big-name musicians like Garth Brooks periodically raised a stink about used CD sales, it seemed that everyone turned a blind eye to the whole thing because cracking down on used bookstores would create far more problems than they'd solve.

As it turns out, selling used books, CDs, movies and software is perfectly legal due to what's known as the "first sale doctrine".

Section 109 of the U.S. Copyright Act codifies this doctrine. Anyone who is a lawful owner of a physical copy of a copyrighted work can do as they please with that physical copy.

They can destroy the copy, paint it pink, put blinkenleits all over it, rent it to somebody, or transfer ownership by giving it away or selling it. They can't, of course, duplicate the copyrighted content or reuse it or sell it in some way -- the first sale doctrine deals with the physical object, not the intellectual expression it contains.

However, when cassette tape players and recorders came along, the U.S. recording industry started to fear for their profits. (Sound familiar? You bet!) So, they put their vast financial resources to work influencing legislators. In 1984 the Record Rental Amendment was passed on the logic that renting out albums made it too easy for people to copy music without paying for it, thus dreadfully harming the RIAA's copyrights.

As a result of that amendment to Section 109, you can't rent an audio CD or tape or phonograph. Due to legal extrapolations of the Record Rental Amendment combined with the fact that software is often set up for licensing rather than sale, you can't rent a piece of software, either ... unless you're talking about a video game, which is not seen by the courts as being software. At any rate, that's why you can't rent the latest Britney Spears opus at Blockbuster along with Fatal Frame for your Playstation.

Fortunately, the RIAA didn't take the step of preventing libraries from lending out music albums, nor have they seriously attempted to stop the sale of used CDs. However, all that could change if they decide that these activities are excessively limiting their profit margins.

The book publishing industry, by contrast, has neither the lobbying power nor the motivation to try to change the laws as they exist.

It's perfectly legal to rent a novel, for instance, but sadly reading just isn't popular enough to support the development of a Bookbusters chain.