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A couple of recent court decisions create some hope that the ordinary understanding of terms like “copy” and “own” may have some life in them, in spite of the best efforts of the intellectual property industry to twist these words’ meanings out of shape to the disadvantage of consumers. These examples pick up the story line of Chapter 6 of Blown to Bits.

You can TiVo a television program and watch it later. You can record it on a VCR and watch it yourself as many times as you want. You can’t legally sell it or make multiple copies, but as long as the copy is for your own use, you have no legal issue.

Cablevision offered a videorecording service where the bits would be held on your behalf at Cablevision, not on your home machine. The bits would be physically in “the cloud,” as the saying goes, but functionally Cablevision’s service would walk and quack like a home VCR. Legal or not?

The entertainment industry thought not, and sued Cablevision for copyright infringement. A lower court held Cablevision liable, but an appeals court agreed with Cablevision that it didn’t matter where the bits happened to be held, only who could do what with them. Entirely sensible, it seems to me. See the Reuters story that came out today.

The other story was in May. A Mr. Vernon bought stuff at garage sales and resold it on eBay. Among the stuff he sold were copies of AutoCAD, a computer-aided design software package used by architectural design firms. These copies of AutoCAD were used, but were in their original packaging, and included the original disks. Autodesk, the company that produces AutoCAD, cried foul — that was copyright infringement. The folks who originally acquired those copies of AutoCAD didn’t actually buy them. If they had bought them, then Vernon’s resale would be just like reselling a used book. Bun in fact all they had done was to acquire a right to use AutoCAD. The license agreement clearly stated that it was nontransferable. No one else could “buy” the used software package because it had never been “sold” in the first place.

A U.S. District Court in Washington State, in its opinion, notes that Autodesk actually referred to users “purchasing” the software, and charged a one-time fee with no continuing charges. The transaction looks and quacks like a purchase; Autodesk can’t turn it into a licensing agreement simply by stating that that’s what it is. Mr. Vernon can go back to selling the used software on eBay without Autodesk hassling him with DMCA takedown notices.

Will this decision have any impact on things like the Yahoo Music “Store,” which actually only issues revocable music licenses, as Hal has been blogging? Probably not — in that case there is nothing that looks like a used book that the consumer could wave at the judge. But these are both welcome decisions. Maybe some judges are starting to understand how this stuff works.

This entry was posted on Monday, August 4th, 2008 at 8:37 pm and is filed under Owning bits—copyright, The role of government—laws and regulations. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.