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By: Mark R. Malek

For weeks now I have been going round and round with some folks on twitter about the legitimacy of copyright law. Of course, this prompted me to write some articles proving why they are wrong (see the articles here, here and here).  As you can imagine, that did not stop the discussion.  Why would a voice of reason, or any rational thought at all stand in the way of their ridiculous musings.

I think I got to the bottom of some of what they are preaching.  It took me a while, but it is funny how their entire argument revolves around a lack of understanding of copyright law.  The argument that was getting irresponsibly made was that once they had obtained a copy, it was their “right” to do whatever they want with it.

This is somewhat backpedaling from the original argument of “I have a RIGHT to copy.”  That argument was simply intolerable, which is why I remained engaged with them.  Another part is that we are both clearly bullheaded about this topic, and I am just not going to let them have the last word – especially not when that word is egregiously wrong!  There clearly is not “right” to copy.  Ok, that is a broad statement.  There can be a right to copy, but you have to pay for that right.  There is no “natural right” to copy (yes, that is another one of their ridiculous arguments).

Let’s assume that the copyright abolitionist has obtained a copy of a work of art by lawful means.  For this group, that is a stretch, but that is the only way that I am able to explain the first sale doctrine of copyright law.  So now that they have obtained a copy of the work of art by lawful means, i.e., paid for the song and downloaded it off of iTunes, or went to Barnes & Noble and purchased a book, etc., I would actually agree that they have the right to use that copy… and only that copy!  Can they resell that copy?  Absolutely!  That is why I am able to purchase used books at garage sales.

The line is blurred in the digital age though.  These nincompoops (yeah – I’m bringing that one back) think it is ok to retain a digital copy of the work on their hard drive and distribute as many copies of the work as they want.  That is simply not the case.  Let’s consider this – how much do you think it truly costs a group like the Dave Matthews Band to create an entire album?  It is not as though five guys sat around a campfire one night, hammered out a few songs and recorded them.  There are months and months of writing and experimenting with different types of rhythms and lyrics, followed by months in a studio trying to get just the right version of the song recorded.  That studio time costs money, the instruments cost money, the band has to eat and live somewhere during the production, then the songs have to get distributed to radio stations and the band has to make appearances in order to promote the songs, and on and on and on.  I’d be surprised if it took less than $2 or $3 million to accomplish the feat of bringing a hit album to the market.  And yet, somehow, you are able to purchase this compilation of songs on a CD (or download it from iTunes) for $12.

That is the beauty of copyright law.  Copyrights allow artists like the Dave Matthews Band to readily create hit albums, but control how the music is distributed so that they can recoup the costs and make profits on the song.  If I buy a CD and I am tired of listening to it (highly unlikely) then, pursuant to the first sale doctrine, I am free to sell it or give it away to someone, but I cannot retain a copy of that music on my computer.  The dawn of digital files is where the problem lies.  Now, to help the copyright abolitionist make his argument, I would agree that if you paid the Dave Matthews Band $3million for the CD, then you have bought all the rights to the album and all the songs, and it is your right to do with it what you want.  Copyright law, however, appreciates that people who do not have $3million (me for example) may still like to hear the wonderful tunes of the Dave Matthews Band and this is the way to make it affordable for me to hear their music.

To summarize, the first sale doctrine is the answer to the copyright abolitionist’s theory.  That is what provides them the right to do what they want to with a copy that they have rightfully obtained.  The problem they have with it is that they want to retain copies and distribute even more.  The hole in their theory is that they cannot understand that they have only lawfully obtained one copy.  That does not give you the right to turn your one copy into hundreds of copies.