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Other >> Copyright Forum >> Video, DVD, Phonorecords- "first sale"
(Message started by: Dave on Jan 19th, 2006, 2:20am)

Title: Video, DVD, Phonorecords- "first sale"
Post by Dave on Jan 19th, 2006, 2:20am
Person/Website A: Produces, Publishes and Sells DVD videos.

Person/Website B: Buys DVD videos from A and Rents them to the public without permission of A.

B cites: "first sale" doctrine- 17 USC, section 109 of the US Copyright law.

BUT:

1.  A Publishes and Sells DVD videos that ALSO include phonorecords (protected music) on the ROM layer of the DVD- not the soundtrack of the DVD, but actual song files.

2. Executable files on the ROM layer of the DVD.

AND, A has a “software license” agreement on its site which prohibits the practices of B.

A also includes in its agreement “Disassembled and Derivative Works” are prohibited while B Rents A products in a deconstructed form.

B also does not have "higher profile" DVD titles on their site- meaning they do not have similarly competitive titles from mid-sized to large companies that may have budgets for lawyers.

Finally, we are not talking about Blockbuster and Hollywood here. B is a site that clearly fishes around on the internet finding boutique DVD titles from small company’s while avoiding similar DVD titles from companies that might fight back.

Seeking advice

Thanks

Title: Re: Video, DVD, Phonorecords- "first sale&quo
Post by Isaac on Jan 19th, 2006, 6:07am
Does deconstructing the DVD content involve circumventing an access control mechanism?   If so, perhaps otherwise legal activity would be infringing.

While I don't believe that the deconstruction creates a derivative work, it's not clear to me that selling/renting a deconstructed copy is covered under first sale doctrine.  I think the argument is very shakey.  

I'm not sure what the impact of the software license on the firm web site is on the activity.   The mechanism for reflecting assent of a software license does not seem to be present.  But probably the lack of a grant of permission to peform the activities in question are enough in this case.

The interesting part is the possible renting of sound files.  I've read arguments that software and other non video content on a DVD video disk might make renting them fall outside of fair use.   I don't know that I find such arguments convincing, but if the song files are stripped to separate media and rented, I would not think first sale would cover the activity.

Title: Re: Video, DVD, Phonorecords- "first sale&
Post by Dave on Jan 19th, 2006, 7:06am
The DVD in question is sold as a compilation of 1. The video program 2. The song files on the ROM layer 3. Online streaming movies accessed after purchase.

One version of the compilation is sold on a 2 DVD set (due to size retractions in a particular delivery medium) but is 1 program. Other versions exist that hold all the DATA. Either version is an entire program licensed under the agreement.

The assertion of deconstruction means that company B is purchasing the compilation and renting out portions of the product by offering 1. Single DVDs from the set. 2. No streaming movies.

The song files are zipped and on the ROM layer. A person who rents one of the deconstructed DVDs can drag them to their computer and freely distribute them on the internet or burn them or transfer to other computers. None of which are authorized in the license agreement or authorized by the several third party agreements held between company A and third party copyright holders. The license is non-transferable. Company B is advertising, distributing and encouraging illegal use of the song files.

All thoughts appreciated.

Title: Re: Video, DVD, Phonorecords- "first sale&quo
Post by Isaac on Jan 19th, 2006, 8:31am
Three possible avenues (not necessarily the best ones.  I am at the periphery of my expertise here) occur to me for addressing a first sale defense based on your narrative.

1.  The disks are originally licensed but not sold.

2.  The songs on the disk may not be rented because first sale under 17 USC 109 does not apply to renting of phonorecords and software for commercial advantage.

3.  An indirect infringement theory based on inducement.

None of the arguments look like slam dunk wins to me.  

Argument 1 has worked in some courts but not others when software is involved, but might be on even less firm ground in this situation.  Might depend on what the software does.  It it's just software for playing the video the argument might be weakened.  

Argument 2 is complicated by the fact that the disk includes video which can be rented without permission of the copyright holder.  

Argument 3 is relatively new law, and its success might depend heavily on exactly what activities are occuring to promote infringment.

I could not be more specific without asking for details that should not be posted here, and even then, my advice would not be as good as that of someone who works routinely in this area.


Title: Re: Video, DVD, Phonorecords- "first sale&quo
Post by Dave on Jan 19th, 2006, 9:20am
Thanks!

Can you point me to a resourse that explains #3

Title: Re: Video, DVD, Phonorecords- "first sale&quo
Post by Isaac on Jan 19th, 2006, 10:15am
You might want to look at the recent Supreme Court ruling in Grokster v. MGM.  I'm sure there is commentary about the case all over the web.


Title: Re: Video, DVD, Phonorecords- "first sale&quo
Post by JSonnabend on Jan 23rd, 2006, 10:18am

Quote:
2.  The songs on the disk may not be rented because first sale under 17 USC 109 does not apply to renting of phonorecords and software for commercial advantage.

I think this argument should carry the day, but recent research I conducted didn't reveal any cases on point.  I'm eager to argue this one myself.

- Jeff



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