Access Controls in the Digital Era and the Fair Use/First Sale Doctrines
2007; Routledge; Volume: 23; Issue: 4 Linguagem: Inglês
ISSN
0882-3383
Autores Tópico(s)Intellectual Property Law
ResumoAbstract Each sale of an track means that a copy of music has been distributed that cannot be legally resold, edited, excerpted, or otherwise sampled by that user. This scenario has been repeated over 2.5 billion times since the inception of the Music Store. Much like software sales, consumers are now purchasing licenses to the work instead of the content, given that access to these works is controlled by Digital Rights Management (DRM) schemes bolstered by the Digital Millennium Copyright Act (DMCA). In enacting [section] 1201(a) of the DMCA, Congress effectively created an additional exclusive right for content providers: controlling access to a work. I. INTRODUCTION iTunes really competes with piracy, not with the other services. Piracy is the big enemy. Buying music online legally is good karma.--Steve Jobs, CEO of Apple Computer (1) Pirating a copyrighted work is not what it used to be: it is easier. Before xerography and bits-and-bytes, there was handwriting. If you wanted another copy of a book, you handwrote yourself one. Furthermore, distributing that handwritten copy required a physical act of bringing it from one place to another. All in all, this was an extremely laborious process. Unprotected digital works are not subject to such encumbrances. Digitized (unprotected) copyrighted material can now be spread far and wide over the Internet. Copyright owners are understandably concerned by the fact that each copy of a digital work is as good as the last one, and is not subject to the same material degradation as a cassette or record. Finally, digital works are compact and easily archived compared to their traditional physical counterparts. The days of the rogue printing press are gone. We are now in the digital age of piracy. The best starting point for exploring the effects of digital content on copyright law and copyright owners is examining the most successful implementation of digitally protected downloadable content to date: Apple's Music Store (iTunes). offers a library of over 4 million songs from the 4 major labels as well as hundreds of independent labels. (2) Able to run equally well on both Macs and PC's, the service has boasted over an 84% market share, is available in 22 countries, and has sold more than two and one half billion songs. (3) Individual tracks can be purchased for 99 cents, while complete albums begin at $9.99. (4) The growth rate of sales has been nothing short of astonishing. As of October 12, 2005, had surpassed 500 million music downloads since its initial launch in April 2003, and was averaging 1.8 million song downloads per day for its 10 million registered users. (5) On February 23, 2006, Apple reported that downloads had reached a total of 1 billion songs. (6) Less than a year later, on January 9, 2007, Apple reported that downloads had reached 2 billion. (7) Apple's downloadable music is encoded in the open standard Advanced Audio Coding (AAC) format at 128 kbps, and it incorporates a proprietary Digital Rights Management System (DRM) called FairPlay. (8) Apple restricts users to downloading one unique copy of a purchased song, but allows them to transfer the song to an unlimited number of iPods. (9) The DRM also prevents more than seven identical burns of a purchased music playlist. (10) Because Apple does not officially license FairPlay, it is a proprietary standard only supported through Apple on the iPod or the program. (11) Through iTunes, Apple is able to regulate what consumers do with their purchased music by using a technologically implemented combination of copyright law and contractual provisions. The thoroughness of Apple's control, however, derives from the unique contract/copyright interaction in concert with DRM. Copyright Law contains exceptions that allow consumers who purchase copies of works a potentially greater amount of freedom than these contractual license agreements. …
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