A Rough End-of-Year for Library Lending (and for Users’ Rights)

As Duke University Libraries’ copyright guru Kevin Smith points out in the above-linked blog post, 2010 was a pretty rough year for users’ rights, and perhaps especially so for libraries’ rights. Kevin highlights two legal campaigns now being waged against library lending (the lawsuit against UCLA over its video streaming practices and a series of angry letters being dispatched to libraries regarding their interlibrary loan programs), as well as the 9th Circuit’s Vernor decision and the Supreme Court’s non-decision decision in the Costco case. I would add to his list the recent decision in MDY v. Blizzard, which stripped hundreds of thousands of would-be purchasers of the video game World of Warcraft of what they could be forgiven for believing were their property rights.

I had an outline for my own blog post on this theme sitting on my desk, but I think Kevin has already done a wonderful job describing the general trend evident in these developments. The Georgia State case offered a bright spot last year, and yesterday’s decision about promo CDs charted a brighter course for 2011, but 2010 certainly seemed to have ended on a down note.

(The Costco decision is sufficiently important to merit its own post, and we will be sharing our own guidance on that decision, in particular, in a few days.)

I think it is worth noting that the disturbing trend Kevin describes highlights the disingenuousness of the “property rights” rhetoric of some extreme voices in the copyright policy debates. These commentators like to characterize copyright infringement as “theft,” and like to compare unauthorized copying to robbing a jewelry store. They claim that organizations who advocate for balanced copyright policy are in league with pirates and that we don’t respect property. In reality, these maximalist commentators are the ones upsetting property rights – the rights of users.

Copyright is a very strange kind of property. It augments the “property” rights of authors and distributors by letting them maintain control over their products even after they’ve been sold. This explains why some rightsholders push for ever more protection. What retailer wouldn’t love to “sell” you something but retain rights to charge you for it again depending on how you use it in the future?

This augmentation of sellers’ rights necessarily diminishes the property rights of users. Balancing provisions in the law, such as fair use and the first sale doctrine, aim to restore equilibrium by giving users some rights to use protected material without permission. Without these users’ rights, copyright would be a very one-sided ‘property’ system, one that only works for sellers. Not surprisingly, these provisions are under constant attack from parties hoping to profit from their cultural property in ways that would be impossible with ordinary property.

The first sale doctrine may be the user’s right that most embodies traditional property rights, because it allows a user to treat a lawfully purchased copy of a copyright-protected work the same way she would treat any lawfully purchased product: she can re-sell it, lend it, and so on, without asking permission from the rightsholder. An attack on users’ first sale rights, whether by the use of sneaky pseudo-licenses or by too-clever-by-half readings of the Copyright Act, is an attack on property rights, pure and simple.

Properly balanced copyright policy gives rightsholders fair compensation while also giving users the benefits of real ownership of the copies they buy. By stripping users of their rights based on seemingly arbitrary distinctions (was the book printed abroad? did you read the fine print on your purchase order?), the cases and litigation campaigns Kevin Smith describes highlight and exacerbate the loss to users when the copyright bargain turns sour. And they give lie to the copyright maximalists’ claim to be guardians of property rights.