William Patry has a good blog post on the attempts by record labels to legally attack sellers of promotional CDs, as well as pawn shop owners. Stores in Florida have to apply for a resellers' permit, take a thumb print of CD sellers, and make a copy of their drivers' licenses. They also have to wait 30 days before selling CDs.

Apparently the record labels claim the first sale doctrine doesn't apply because resale is proscribed by the license terms.

The comments are interesting, including Crosbie Fitch's. In their comments, Prof. Patry and copyright lawyer LKB note the Pro-CD v. Zeidenberg case (1996), which enforced shrinkwrap licensing restriction for a telephone directory CD.

Here is a 1998 comment on shrinkwrap licensing by copyright lawyer Pamela Samuelson.

Note her discussion of Judge Easterbrook's decision why copyright shouldn't override a shrinkwrap licensing agreement in this case--and a bit further down Bill Gates' dismissal of a question about "fair use" by a Microsoft summer intern.

"Fair use"--isn't that what slaveowners consented to when they let their slaves visit town once in a while?

And regarding Easterbook's third reason for ruling for Pro-CD--that it wouldn't be able to recapture its investment in the telephone directory data if users could upload the date for free: what if on day one slavery were legal; on day two a slaveowner invested in new slaves; then on day three the legal authorities ruled slavery illegal, thus making his slave investment worthless? Would Judge Easterbrook rush to the defense of the slave owner, citing his concern about averting a "market failure," which would occur if the value of slaves plummeted to zero?

(Never mind that his idea of "market failure" is not what economists conventionally mean by that term.)

You walk into a shop.

On sale are what look like copyrighted works - potentially containing licences that permit their owners a few more liberties otherwise suspended by copyright.

Unfortunately, although they may look like copyrighted works for sale, according to Easterbrook they could just as well be pre-signed rental contracts, available once consideration has been submitted to the retailer, the publisher's agent.

Easterbrook doesn't seem to notice the misrepresentation of the exchanged good that has occurred, and suggests that if the purchaser mistook a rental contract for the sale of a copy, their remedy is to return it for a refund. They are not permitted to ignore the contract and enjoy the included copy they thought they were buying, because by doing so, they indicate their voluntary acceptance of the rental contract that was actually what was on offer.

While one may argue that little duress is involved (there is no other legitimate way to get a copy than by submitting to our rental contract), one can argue that deceit is involved (despite appearances, a copy is not actually being sold).

Unfortunately, justice can get a little distorted when viewed through commercially biased spectacles.

Copyright is not the only device that interferes with our intellectual property rights.