Sunday, May 18, 2014

USPTO on Statutory Damages, First Sale Doctrine (digital), and Remixes

Copyright reform is on the government Agenda.

By the way.... authors, have you registered with the Authors' Registry? If not, you may be one of the authors for who the Registry is holding significant funds. Find out more, and download the paperwork to register here:

For more information, email staff@​

This coming week, the United States Patent And Trademark Office will host a "Roundtable" on the topics of Statutory Damages (for individual copyright infringers and for large scale copyright infringers), on the First Sale Doctrine in the digital environment, and on a legal framework for the creation of remixes.

Follow the USPTO on Livestream here:

What I find most remarkable about this process is the dearth of mid-list authors who are taking an interest at the very time when the government is seeking input from individual content creators who cannot afford the very expensive legal pursuit remedies available to major publishers, movie studios, and recording houses.

Also astounding: SFWA, RWA, AG, NWU, do not appear to be participating. Why do you think that is? Do authors' associations not believe that it is important to have a seat at a table that might make recommendations to lawmakers concerning whether or not "used" ebooks may legally be sold, shared, given away by anyone who acquires an original copy legally?

The First Sale Doctrine currently applies to physical goods (paper books, for instance) which deteriorate in physical condition every time they are used (or read). "Used" reflects the depreciation in value and "life expectancy" of the product. Once a "used" item is sold, the seller relinquishes ownership of it entirely, and is physically unable to retain a copy.

In the case of new ebooks, the content is --strictly speaking-- not sold, it is licensed.

What happens if First Sale Doctrine applies to digital content? Amazon has a patent on selling "used" ebooks. Does that mean that Amazon will corner the market? What happens to authors' royalty-based sales if would-be ebook purchasers have a choice between buying new or used ebooks? Both will be of identical quality. Both will be delivered instantly. Both will be available at the same time. "Used" will be cheaper.... and no royalties will be paid to the authors.

How will authors or their takedown services be able to send Takedown notices to pirate sites when there may be no way to know which copies are "used" and which are illegal copies? (See Marilynn Byerly's post yesterday on this blog.)

EBooks are not a product. They are pure content. If the content becomes the property of the purchaser of one copy --to do with as they please, including "sharing", reselling... how is anyone to know whether a copy that appears where the author has not licensed it to be is there lawfully or not?


Rowena Cherry


  1. I totally agree, Rowena.

    One correction, though. Apple and Redigi also have patents on software to resell "used" digital items.

    It was Redigi who couldn't prove in court that a closed-system resale doesn't violate "First Sale Doctrine."

    A closed resale system would tie the proprietary DRM of an ebook to the sale site. In other words, you could "resell" your Kindle ebook within the Kindle system itself. An open system would allow you to resell a "used" ebook anywhere.

  2. The link has changed.