iPods, First Sale, President Obama, and the Queen of England

Commentary by Fred von Lohmann

President Obama reportedly gave an iPod, loaded with 40 show tunes, to England's Queen Elizabeth II as a gift. Did he violate the law when he did so?

You know your copyright laws are broken when there is no easy answer to this question.

Traditionally, it has been the job of the "first sale" doctrine to enable gift giving -- that's the provision of copyright law that entitles the owner of a CD, book, or other copyrighted work, to give it away (or resell it, for that matter), notwithstanding the copyright owner's exclusive right of distribution.

In the digital era, however, first sale has been under siege, with copyright owners (and even the Copyright Office) arguing that it has no place in a world where "ownership" has been replaced by "licenses" and hand-to-hand exchanges have been replaced by computer-mediated exchanges that necessarily make copies. But it's precisely because first sale is central to everyday activities like giving an iPod to a friend, selling a used CD on eBay, or borrowing a DVD from a library, that EFF and others have been fighting for it in case after case.

So, how does President Obama fare in this? It's nearly impossible to figure out. If he'd simply purchased a "greatest hits" CD of show tunes and given it to the Queen, the first sale doctrine would have taken care of it. But because digital technology is involved here, suddenly it's a legal quagmire. (And, for the remainder of this discussion, I am going to set aside the Presidential immunity issues and the UK copyright law issues, which make it even more of a quagmire.)

First, let's imagine that the President (or his staff) bought the 40 show tunes from the iTunes music store. Do you "own" the music that you buy from iTunes? The nearly 9,000 words of legalese to which you agree before buying don't answer that question (an oversight? I doubt it). Copyright owners have consistently argued in court that many digital products (even physical "promo" CDs!) are "licensed," not "owned," and therefore you're not entitled to resell them or give them away. (And the Amazon MP3 Store terms of service are even worse for consumers than iTunes -- those terms specifically purport to strip you of "ownership" and forbid any "redistribution.")

Second, even if the first sale doctrine applies to iTunes downloads, what about the additional copies made on the iPod? iTunes does not download directly to an iPod. So President Obama's staff made an additional copy onto the Queen's intended iPod. How are those copies excused? The iTunes terms of service say that downloads are "only for personal, noncommercial use." Is giving a copy to a head of state a "personal" use? Seems more like a "diplomatic use," doesn't it? So copyright owners could argue that the copy on the iPod was not authorized, because it was beyond the scope of the iTunes "license." And according to the typical rightsholder argument, any use beyond the scope of the "license" is a copyright infringement.

Perhaps it's a fair use? I'd certainly take that view. But does it matter here whether President Obama's staffer first deleted the copy that is still on her computer? Should that matter? (It does not matter for first sale purposes, which is one reason why the first sale doctrine answers questions so much more clearly.)

Third, what about a breach of contract? As I mentioned above, some might argue that this "use" of iTunes downloads breaches the "personal use" limitation in the agreement. And if it is a breach of the iTunes contract, can the copyright owners sue President Obama as "third party beneficiaries" of the iTunes contract? It's not clear. (In the Amazon terms of service, copyright owners are specifically made third party beneficiaries, which appears to be an attempt to clear a path for record labels to sue Amazon customers for breaches of the contract.)

And all of this even before you start asking what happens when the Queen connects her new iPod to her computer, thereby making even more copies (the UK, after all, lacks a fair use doctrine)...

http://www.eff.org/deeplinks/2009/04/first-sale-president-obama-and-queen-england