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First-sale doctrine needs a serious update for electronic content. It's too important a principle for us to lose. Content licensing, as opposed to outright sal

First-sale doctrine needs a serious update for electronic content. It's too important a principle for us to lose. Content licensing, as opposed to outright sale, is a cancer spreading through our collective culture. Ownership will cease to have any meaning at this rate.

jauntywundrkind 3y ago
I adore technology, but the legal system has given enormous power for Technological Protection Measures to smash property rights & generally exact absurd levels of control. It's enormously saddening to see that which should be raising and liberating humankind, to see our tool-making, used to choke & restrain humankind; what an infernal curse! Written up two decades ago by Mark Lemley, Terms of Use, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=917926 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=917926
andrewla 3y ago
That sounds nice, but I have no idea what such an update would look like. The future envisioned by DRM is an attempt to deal with the problem of copying through structural rather than legal means. Would an update to the law restrict DRM by putting transferability requirements in place (that is, any DRM scheme needs to have the option to irreversibly transfer the content)? Would it put further DMCA-style restrictions on attempts to circumvent DRM? I don't really like any of these options. I think music is the closest thing to where we have "solved" this problem -- streaming music is inexpensive enough and widespread enough that music piracy is essentially a non-issue. For a while it seemed like video was going in a similar direction, but now with the balkanization of video platforms and the increasing cost of access to materials, we're slowly reverting back. Books, especially ebooks, have been totally blocked from this path by the publishers, who managed to successfully defend their pricing moats and make ebooks more expensive than their physical counterparts. Piracy seems (anecdotally) less widespread just because ebooks (especially Kindles) don't make it easy to bring your own content.
- triceratops 3y ago
  That's a really good question. It might look something like Steam, but with some important additional features. 1. Resales and lending are built into the platform. 2. Some kind of trust or legal framework so that you can't lose access even if the company operating the platform goes bankrupt. 3. Assets are portable between platforms. 4. Strong legal privacy guarantees. We mostly don't have stock certificates anymore. They're all electronic assets. But you still own your shares and they can't be freely copied or counterfeited. Why can't we do that for digital intellectual property? Just like financial crimes will always exist[1], it isn't possible to stamp out piracy. That doesn't mean we have to make everything suck for everyone else. 1. https://www.bitsaboutmoney.com/archive/optimal-amount-of-fraud/ https://www.bitsaboutmoney.com/archive/optimal-amount-of-fra... (Please, no one say blockchain)
  - tomrod 3y ago
    I am going to say blockchain. Or, at least a ledger of some type, would be reasonable.
    - rtkwe 3y ago
      Can we do it without burning the energy of a moderately sized developed nation? BTC used as much power as Greece or Australia by some estimates last year. [0] [0] https://www.eia.gov/todayinenergy/detail.php?id=61364#:~:text=So%2C%20the%20CBECI%20estimates%20put,in%20Greece%20or%20Australia%2C%20respectively https://www.eia.gov/todayinenergy/detail.php?id=61364#:~:tex...
      - exoverito 3y ago
        Yes, proof of stake like Ethereum's blockchain is more energy efficient. However it could potentially be less secure. https://en.wikipedia.org/wiki/Proof_of_stake https://en.wikipedia.org/wiki/Proof_of_stake The users of BTC also pay for that electricity consumption, and value is derived from having a ledger that is not controlled by any government. Building out clean energy sources is the real solution like nuclear, deep geothermal, solar, wind, etc.
molave 3y ago
This is why I'm wary of any talk of AI regulation. I understand the theory that unfettered AI is very powerful and dangerous. It's only my concern of the actual policies being as anti-consumer as intellectual property with regards to digital content.
throw10920 3y ago
> First-sale doctrine needs a serious update for electronic content. Who says that there "needs" to be a serious update? You? This is emotional pleading without any substance. > It's too important a principle for us to lose. This is false. The rise of Steam and other digital distribution platforms for video games has almost completely eradicated the second-hand market - with virtually zero negative consequences. The real-world nullification of first-sale doctrine for an entire class of digital media extremely clearly illustrates that there have been few, if any, negative consequences for it. > Content licensing, as opposed to outright sale, is a cancer spreading through our collective culture. Now you're mixing two very different problems. Problems of being able to re-sell copies of copyrighted material is distinct from ownership. (the fact that a small part of ownership is the ability to sell to other parties is largely irrelevant)
- Fire-Dragon-DoL 3y ago
  Steam works because they are acting nicely toward users. The moment Gabe is out of there, the mess will begin, sadly. And it's hard to capture for normal people, but the pain of digital ownership is pretty evident to every person I know. Granted that's still a very small sample. Nobody can convince you, but you can't claim the opposite too
  - throw10920 3y ago
    > Steam works because they are acting nicely toward users. The moment Gabe is out of there, the mess will begin, sadly. I mostly agree with you, but it's important to differentiate between two different things that Steam is doing: The first is the nullification of first-sale doctrine, which is what the GP comment was about - you can't re-sell Steam games, and this is OK. The second is the fact that your entire game library is tied to Steam - beyond merely being unable to re-sell your games, you can lose your games if Steam either goes down or decides to delete them from your library (like Sony and Amazon have done with their respective digital libraries). That is unacceptable, and I fully support legislation to prevent things like that from happening. (e.g. I'm in favor of bills that say that if the servers are shut down for an online game, the developer must provide all the tools for players to host their own servers) But, my point is that the two concerns are separate. You can believe that people shouldn't be able to re-sell digital content without believing that the digital store owner gets to delete content at will, or that it's ok for you to be unable to access hundreds of dollars of games that you paid for because the DRM servers are down.

jauntywundrkind 3y ago

I adore technology, but the legal system has given enormous power for Technological Protection Measures to smash property rights & generally exact absurd levels of control. It's enormously saddening to see that which should be raising and liberating humankind, to see our tool-making, used to choke & restrain humankind; what an infernal curse! Written up two decades ago by Mark Lemley, Terms of Use, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=917926 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=917926

andrewla 3y ago

That sounds nice, but I have no idea what such an update would look like. The future envisioned by DRM is an attempt to deal with the problem of copying through structural rather than legal means. Would an update to the law restrict DRM by putting transferability requirements in place (that is, any DRM scheme needs to have the option to irreversibly transfer the content)? Would it put further DMCA-style restrictions on attempts to circumvent DRM? I don't really like any of these options. I think music is the closest thing to where we have "solved" this problem -- streaming music is inexpensive enough and widespread enough that music piracy is essentially a non-issue. For a while it seemed like video was going in a similar direction, but now with the balkanization of video platforms and the increasing cost of access to materials, we're slowly reverting back. Books, especially ebooks, have been totally blocked from this path by the publishers, who managed to successfully defend their pricing moats and make ebooks more expensive than their physical counterparts. Piracy seems (anecdotally) less widespread just because ebooks (especially Kindles) don't make it easy to bring your own content.

triceratops 3y ago
That's a really good question. It might look something like Steam, but with some important additional features. 1. Resales and lending are built into the platform. 2. Some kind of trust or legal framework so that you can't lose access even if the company operating the platform goes bankrupt. 3. Assets are portable between platforms. 4. Strong legal privacy guarantees. We mostly don't have stock certificates anymore. They're all electronic assets. But you still own your shares and they can't be freely copied or counterfeited. Why can't we do that for digital intellectual property? Just like financial crimes will always exist[1], it isn't possible to stamp out piracy. That doesn't mean we have to make everything suck for everyone else. 1. https://www.bitsaboutmoney.com/archive/optimal-amount-of-fraud/ https://www.bitsaboutmoney.com/archive/optimal-amount-of-fra... (Please, no one say blockchain)
- tomrod 3y ago
  I am going to say blockchain. Or, at least a ledger of some type, would be reasonable.
  - rtkwe 3y ago
    Can we do it without burning the energy of a moderately sized developed nation? BTC used as much power as Greece or Australia by some estimates last year. [0] [0] https://www.eia.gov/todayinenergy/detail.php?id=61364#:~:text=So%2C%20the%20CBECI%20estimates%20put,in%20Greece%20or%20Australia%2C%20respectively https://www.eia.gov/todayinenergy/detail.php?id=61364#:~:tex...
    - exoverito 3y ago
      Yes, proof of stake like Ethereum's blockchain is more energy efficient. However it could potentially be less secure. https://en.wikipedia.org/wiki/Proof_of_stake https://en.wikipedia.org/wiki/Proof_of_stake The users of BTC also pay for that electricity consumption, and value is derived from having a ledger that is not controlled by any government. Building out clean energy sources is the real solution like nuclear, deep geothermal, solar, wind, etc.

molave 3y ago

This is why I'm wary of any talk of AI regulation. I understand the theory that unfettered AI is very powerful and dangerous. It's only my concern of the actual policies being as anti-consumer as intellectual property with regards to digital content.

throw10920 3y ago

> First-sale doctrine needs a serious update for electronic content. Who says that there "needs" to be a serious update? You? This is emotional pleading without any substance. > It's too important a principle for us to lose. This is false. The rise of Steam and other digital distribution platforms for video games has almost completely eradicated the second-hand market - with virtually zero negative consequences. The real-world nullification of first-sale doctrine for an entire class of digital media extremely clearly illustrates that there have been few, if any, negative consequences for it. > Content licensing, as opposed to outright sale, is a cancer spreading through our collective culture. Now you're mixing two very different problems. Problems of being able to re-sell copies of copyrighted material is distinct from ownership. (the fact that a small part of ownership is the ability to sell to other parties is largely irrelevant)

Fire-Dragon-DoL 3y ago
Steam works because they are acting nicely toward users. The moment Gabe is out of there, the mess will begin, sadly. And it's hard to capture for normal people, but the pain of digital ownership is pretty evident to every person I know. Granted that's still a very small sample. Nobody can convince you, but you can't claim the opposite too
- throw10920 3y ago
  > Steam works because they are acting nicely toward users. The moment Gabe is out of there, the mess will begin, sadly. I mostly agree with you, but it's important to differentiate between two different things that Steam is doing: The first is the nullification of first-sale doctrine, which is what the GP comment was about - you can't re-sell Steam games, and this is OK. The second is the fact that your entire game library is tied to Steam - beyond merely being unable to re-sell your games, you can lose your games if Steam either goes down or decides to delete them from your library (like Sony and Amazon have done with their respective digital libraries). That is unacceptable, and I fully support legislation to prevent things like that from happening. (e.g. I'm in favor of bills that say that if the servers are shut down for an online game, the developer must provide all the tools for players to host their own servers) But, my point is that the two concerns are separate. You can believe that people shouldn't be able to re-sell digital content without believing that the digital store owner gets to delete content at will, or that it's ok for you to be unable to access hundreds of dollars of games that you paid for because the DRM servers are down.