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Info for Sale or Rent?

By Richard Wiggins

arth Brooks goofed. A few years ago, he launched a one-man crusade against the sale of used copies of his CDs. Brooks argued that the resale of his old records undercut new sales of his works. Consumers and record stores rejected the ideas out of hand.

An article by Joel Brinkley in today's New York Times tells the story of a new product being sold by the electronics superstore chain Circuit City. Called Digital Video Express, or Divx, this product is essentially a DVD disc with a pay-per-view feature. The theory is you acquire a copy of, say, Top Gun for free. Every time you play it, a "modest" charge accrues, and a device in your home reports how much you owe them at the end of the month. The DVD hardware industry is reacting cautiously, and the movie industry rejects the idea out of hand.

These two seemingly unrelated stories actually strike at the heart of fundamental issues involving electronic distribution of intellectual property -- issues that have implications for Internet-based delivery of content for pay.

What Does It Mean to Buy a Book?

But there are limits as to what you can do with the content you "own." You can't make color copies of the photos in the book and sell them to others. You can't digitize your favorite John Denver song and put it up on a Web site. You can't buy a Go Video deck and copy your movie archive for redistribution to friends. You can't clone the video game's hardware and sell it to neighbor kids.

That is, you can't do those things without violating copyright. This, of course, doesn't stop numerous people from doing those sorts of things. No doubt dozens of people have in fact posted on the Web illegal copies of John Denver hits since his tragic death a few days ago, just as hundreds of people scanned images of Princess Diana from their favorite Vogue or People covers and placed them on "In Memoriam" sites. The fact that lots of people do something, of course, doesn't make it legal or "right."

There's a sort of implicit contract when you buy a piece of intellectual property -- whether it's a book, an audio cassette, a video tape, or a video game. The deal is this: the copy you've bought is for you alone to use. You can "consume" the content as much as you want, so long as you don't reproduce it.

Because the content is embodied in a physical object, you can resell the object, or loan it to others. The owner of the copyright's interests are protected, because you haven't reproduced the object, thus undercutting the market for new copies of the content.

Even if you did want to violate that deal, in reality it's hard enough to make a usable copy of a book, or a cassette, or a video tape, or a video game, that individuals don't do it often enough to undercut markets.

This is all pretty straightforward. Where things get complicated is in the digital realm, where copying becomes far easier to accomplish, and in the Internet, where it's downright trivial.