After the recent Congressional hearing on first sale, it seems unlikely Congress is convinced that allowing resale of “used” digital media would be a good idea. But as British lawyer Tony Ballard writes in FutureBook, they might see things differently in Europe.

Ballard brings up the example of a European Court of Justice decision holding that sales of second-hand computer programs did not infringe copyright, even if copies of the program were made in the process of transferring it.

A quirk in the relevant Directive permits the buyer of a computer program (unlike other kinds of work) to make copies but the Court went out of its way to explain that, even if it had not done so, it would have been wrong to allow the rights holders to control resales by relying on the reproduction right. That would have permitted them to demand additional remuneration on each second-hand sale, even though the first sale had already enabled them to obtain appropriate remuneration by realising the economic value of the copy.

(The odd thing here is that, unlike most of the US, Europe has droit de suite, meaning that people who create works of art do get additional remuneration on each second-hand sale. But I suppose computer software isn’t really considered “art” per se.)

Effectively, it seems like US law gets hung up on technicalities—the existence of “copies” meaning that copyright is violated, even though the laws that mention copies pre-date the widespread use of computers which operate by making copies. Europe, on the other hand, chooses to honor the intent of the law rather than the exact phrasing of it.

Ballard suggests that this case could be parlayed into permitting digital resale in Europe since, after all, digital media are just copyable bits the same as computer programs. If you can resell a computer program, why not an MP3?

In the US, of course, we have essentially the opposite precedent—the Autodesk ruling that states that license agreements trump copyright, even if the person reselling the software was not a party to the license agreement. But then, copyright in the USA is a considerably different animal to how it works in Europe. Apart from the aforementioned droit de suite, Europe also recognizes a droit moral, or “moral rights,” which American copyright law does not.

Wouldn’t it be funny if that difference leads to digital resale being legal in Europe? I could even see, down the road, pressure being brought to bear on the US to permit it via international copyright treaty if they ever get around to revising the Berne convention.


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