Episode 006 of EFF’s How to Fix the Internet

Chris Lewis joins EFF hosts Cindy Cohn and Danny O’Brien as they discuss how our access to knowledge is increasingly governed by click-wrap agreements that prevent users from ever owning things like books and music, and how this undermines the legal doctrine of “first sale” – which states that once you buy a copyrighted work, it’s yours to resell or give it away as you choose. They talk through the ramifications of this shift on society, and also start to paint a brighter future for how the digital world would thrive if we safeguard digital first sale.

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In this episode you’ll learn about:

• The legal doctrine of first sale—in which owners of a copyrighted work can resell it or give it away as they choose—and why copyright maximalists have fought it for so long;
• The Redigi case, in which a federal court held that the Redigi music service, which allows music fans to store and resell music they buy from iTunes, violated copyright law—and why that set us down the wrong path;
• The need for a movement that can help champion digital first sale and access to knowledge more generally;
• How digital first sale connects to issues of access to knowledge, and how this provides a nexus to issues of societal equity;
• Why the shift to using terms of service to govern access to content such as music and books has meant that our access to knowledge is intermediated by contract law, which is often impenetrable to average users;
• How not having a strong right of digital first sale undermines libraries, which have long benefited from bequests and donations;
• How getting first sale right in the digital world will help to promote equitable access to knowledge and create a more accessible digital world.

Christopher Lewis is President and CEO at Public Knowledge. Prior to being elevated to President and CEO, Chris served for as PK's Vice President from 2012 to 2019 where he led the organization's day-to-day advocacy and political strategy on Capitol Hill and at government agencies. During that time he also served as a local elected official, serving two terms on the Alexandria City Public School Board. Chris serves on the Board of Directors for the Institute for Local Self Reliance and represents Public Knowledge on the Board of the Broadband Internet Technical Advisory Group (BITAG).

Before joining Public Knowledge, Chris worked in the Federal Communications Commission Office of Legislative Affairs, including as its Deputy Director. He is a former U.S. Senate staffer for the late Sen. Edward M. Kennedy and has over 18 years of political organizing and advocacy experience, including serving as Virginia State Director at GenerationEngage, and working as the North Carolina Field Director for Barack Obama's 2008 Presidential Campaign and other roles throughout the campaign. Chris graduated from Harvard University with a Bachelors degree in Government and lives in Alexandria, VA where he continues to volunteer and advocate on local civic issues. You can find Chris on Twitter at @ChrisJ_Lewis

If you have any feedback on this episode, please email podcast@eff.org.

Below, you’ll find legal resources – including links to important cases, books, and briefs discussed in the podcast – as well a full transcript of the audio.

Resources

Legal Cases

• Bobbs-Merrill Co. v Straus (Historic Case Re First-Sale Doctrine)
• UMG v Augusto (EFF Victory re First Sale and License Conditions)
  • When is a ‘License’ Really a Sale? (Pamela Samuelson’s Commentary on UMG v Augusto and Vernor v Autodesk)
• Vernor v Autodesk (EFF Amicus Brief in Key Case re First Sale and Contracts, Following UMG v Augusto)
• MDY v Blizzard (Justia)
  • A Mixed Ninth Circuit Ruling in MDY v Blizzard: WoW Buyers Are Not Owners – But Glider Users Are not Copyright Infringers (EFF’s Commentary on MDY v Blizzard)
• Capitol Records v ReDigi (Wikipedia)
  • Court’s Opinion (Justia)
  • Music Fans Aren’t Owners? Court Finds Redigi Music Resale Service Infringes Copyright (EFF’s Commentary)
  • A Copyright Challenge to Resales of Digital Music (Pamela Samuelson’s Commentary)
  • ReDigi and the Path Forward for Digital Exhaustion (End of Ownership’s Commentary)
• Hachette v Internet Archive (Ongoing EFF Case Defending Controlled Digital Lending)
• Quanta v LG (EFF Amicus Brief, Victory with Supreme Court Reaffirming Patent Exhaustion Doctrine)
• Green v US Department of Justice (Ongoing EFF Case Challenging Constitutionality of DMCA’s Anti-Circumvention and Anti-Trafficking Provisions)
• EFF’s Sec. 1201 Exemption Comments 2017 – Jailbreaking

Digital First Sale

• The BOSS Act Protects Both the Rights and Pocketbooks of Event-Goers (Public Knowledge)
• No One Should Have to Wait Eight Months for a Library Book (Public Knowledge)
• Copies, Rights & Copyrights: Really Owning Your Digital Stuff (Public Knowledge)
• Open Education and Artificial Scarcity in Hard Times (EFF)
• What Mr. Show and HBO Go Can Teach Us About the Important of Digital Ownership (Public Knowledge)

Abuses and Failures of Digital Rights Management (DRM) and End User Licensing Agreements (EULAs)

• EFF’s DRM Issues Page
• DRM Puts the Brakes on Innovation (EFF)
• Orwell in 2009: Dystopian Rights Management (EFF)
• DRM’s Dead Canary: How We Just Lost the Web, What We Learned from It, and What We Need to Do Next (EFF)
• One Weird Trick to Improve Copyright: Fix EULAs (EFF)
• Sorry iPhone Users: Apple’s Dev Agreement Means No EFF Mobile App for iOS (EFF)
• Victory for Users: Librarians of Congress Renews and Expands Protections for Fair Use (EFF)
• EFF vs IoT DRM, OMG! (EFF)
• Closed, Proprietary, Felonious: The Toxic Rainbow of Locked Technology (EFF)
• Videogame Publishers: No Preserving Abandoned Games, Even for Museums and Archives, Because All “Hacking” Is Illegal (EFF)

Other Resources

• Chris Lewis of Public Knowledge
• Justifications for Copyright Limitation & Exceptions by Pamela Samuelson (Berkeley Law)
• EFF’s Right to Repair Issues Page
• EFF’s Digital Millennium Copyright Act Issues Page

Transcript of Episode 006: You Bought It, But Do You Own It?

Danny O'Brien:

Welcome to How to Fix the Internet with the Electronic Frontier Foundation, the podcast that explores some of the biggest problems we face online right now, problems whose source and solution is often buried in the obscure twists of technological development, societal change, and the subtle details of internet law.

Cindy Cohn:

Hi, everyone. I'm Cindy Cohn, and I am the executive director of the Electronic Frontier Foundation. For these purposes, I'm a lawyer and now I'm apparently also a podcast host.

Danny O'Brien:

I feel podcast hosts should really be higher up on any of those lists. Hi, I'm Danny O'Brien, and I also work at EFF. Welcome to How To Fix the Internet, where in a world full of problems, we take on a few of the digital kind and point the way forward.

Cindy Cohn:

Though this week's episode is really about how the online world and the offline world cross. And Danny, if it's okay for me to rant a little here?

Danny O'Brien:

I can think of no better place.

Cindy Cohn:

A lot of what's wrong with debating how to preserve civil liberties in the online world comes from approaching it as if it's somewhere magically apart from the offline world, but we live in both of those worlds, and they both overlay our lives. So, it doesn't make so much sense to say that we have rights in one part of our life, but not in the other when we're essentially doing the same thing.

Cindy Cohn:

As things move, it's even difficult to figure out where one ends and the other begins, yet too often, powerful forces try to use this shift to get things in the online world that they would never even ask for, much less get in the offline world.

Danny O'Brien:

And I think the topic of this podcast, first sale is a great example of that. First sale is the American legal doctrine, which is I'm sure we'll hear from our guest, has its roots firmly in the analog world. It was created to protect the intuitive idea that if you buy a book or another creative work, it's yours. You can lend or resell it. You can read it to your friends.

Danny O'Brien:

Without first sale, rights holders or patent owners could claim that they should control some of the use of those works, including banning you from giving them away, selling them at a garage sale, or even just showing them to someone else.

Cindy Cohn:

So, like the best legal principles, the first-sale doctrine is an embodiment of common sense, when you buy something, you own it. But in the digital space, physical sales have been replaced secretly with these click-through licenses and other tiny little words at the bottom of a website that no one reads. But what those words are doing is they're changing what's happening from a sale to a license that's limited in many ways. And what that means is that you're limited in what you can do with the software or other media that you've bought.

Danny O'Brien:

Worst, corporations have even tried to twist th king sure that we don't lose a right that we've always had before the net came along.

Cindy Cohn:

Exactly. And to help us understand that we've asked Chris Lewis to join us. Chris is the president and CEO of Public Knowledge, the D.C. based public interest group that works at the intersection of copyright, telecommunications, and internet law. We love working with PK at EFF. We really consider you some of our chief partners. Back to Chris though, before that Chris was deputy director of the FCC's Office of Legislative Affairs, and he's a graduate of Harvard University. Welcome, Chris.

Chris Lewis:

Thanks Cindy. It's great to be with you guys.

Cindy Cohn:

Chris, I think of you as someone who's able to look deeply at complex problems, nerdy stuff like copyright online, net neutrality and our topic today, digital first sale. And what I love about working with you is that you get the nuance of the issues, but also the political practicalities and the storytelling about how we fix it. And also, it's just really always fun to work together. I'm also delighted that you joined us on the EFF advisory board.

Chris Lewis:

It's an honor to be invited to be on the advisory board, though. We love working with you guys as well, and it's a great bi-coastal partnership for the public interest.

Cindy Cohn:

So, how did you get interested in digital first sale? I think folks like us are such a rare breed, people passionate about the side of intellectual property that actually stands with the users and not about making sure rock stars can buy their second island. How did you get passionate about this?

Chris Lewis:

Great question, and it alludes to what you were talking about earlier about common sense. I can recall the questions I had in the era that I grew up in. I was a teenager in the '90s. I was in college in the late '90s and early 2000s. And during that time, my favorite uncle, my uncle Joey, who's a talented musician has this awesome record collection, music collection. And he could have given that to me, but I'd probably have to wait for him to pass away in order for him to relinquish it.

Chris Lewis:

Instead, he digitized his own library of music and chose to share it with me. And that was one of the first examples of where I was uncertain if the digital rights laws had been updated for what is a normal handing off or passing off or downstream transfer of goods. When I got to Public Knowledge, as you said, I came from the world of telecom policy. I was at the Federal Communications Commission. And unlike you, Cindy, I'm not a lawyer. I'm a organizer. I'm a organizer and an advocate.

Chris Lewis:

And for me, it's stories like that that are important for people to think about in their own lives when they think about how the law needs to be updated for the digital age. I have to admit, when I got to Public Knowledge, I was introduced to copywrite law by some expert lawyers. It's why I love working there. It's why we love working with EFF. We have that in common, lawyers who get into those details of how the law can be adjusted for what are just common sense expectations from average consumers that you should be able to bequeath your fantastic record collection to your niece or your nephew.

Chris Lewis:

That you should be able to sell a book that you got, secondhand. And yes, there are challenges that the technology poses, but it doesn't mean they can't be overcome. And how we overcome that I think is an exciting topic.

Danny O'Brien:

Let me just pick apart exactly what the theory is around what rights holders want to be able to do in these situations. Because I think for anything that didn't have one foot in the intellectual property space, it would seem crazy that if somebody sold you an artifact, that they will be able to require you to not resell it on or limit what you do with it. So what's the legal theory against having something like first sale?

Chris Lewis:

I think the legal theory is that ... It's hard to sometimes for me to think about it from the opposite side, but there is a valid ... I think to be fair, there's a valid argument for the importance of protecting the ability for creative artists to be compensated and to recoup some value for the work that they create, and that's important. But what we often miss or that folks who don't like the idea of a digital first sale miss, what they often miss is that there's a balance to copyright law. That it has dual purposes, not just the protection of those artists and their ability to make a living, to have value in their creativity. But also to continue to promote the useful arts and sciences. That's probably a direct quote.

Chris Lewis:

So when first sale was created in the early 1900s, it came out of court cases that recognized that when you buy something, there's a common sense expectation that you can do certain things with it that are common sense. And that balance was struck back then. The first court case that I'm aware of was the Bobbs-Merrill case against Macy's. Macy's had a book that Bobbs-Merrill published. And Macy's wanted to sell it for 11 cents less than the Bobbs-Merrill people wanted.

Chris Lewis:

And they actually printed on the cover of the book that because of the rights owner's wishes, they did not want that book sold for less than a dollar. Macy's was sued for trying to sell it for 89 cents. And the court ruled that once Macy's bought that product, they had the right to resell it. They had the right beyond that first sale to give it away if they want to. And that is common sense, and that does not infringe on the ability for the creator to make a profit off of that first sale. And so that's an important balance.

Danny O'Brien:

So in a way what this is, is it's a way of preventing riders on artifacts. So the idea is that if you have physically bought something, you can't put ifs and buts and controls on that. And I guess the reason why it gets caught up with intellectual property is a lot of intellectual property law, like patents and copyright, is about controlling various kinds of use, even of copies of your material.

Chris Lewis:

Yes, that's right. There are protections for the original creator of the work as well, but this right, the right of first sale, in non-lawyer speak, I just like to say if you, if you bought it, you own it. This right is critically important for basic capitalism of goods and services moving.

Cindy Cohn:

Let me see if I can say, the thing about the digital space ... Let me try Chris, and correct me if I'm not reading your mind correctly. But in the digital space, one of the things we've been freed from is the artificial constraints of the physical. So this is the Jeffersonian idea. This is an old idea in copyright law that when I give you something, I still have it in the digital world. And Jefferson likened it to a candle. Like when I take a light off of your candle, I still have my candle lit. And he said that that was one of the great things about ethereal works, copyrighted works.

Cindy Cohn:

What happens now, the things that used to be ethereal works like music or software, they used to be locked in a physical thing. And so we would treat them like a physical thing where once you had one CD, that was the one CD you had. But digital works, you can copy multiple times, and we don't have the constraints of the physical world on that. And that should free us up. If you're passionate about something, you want to share it with the world, whether that's the next band or the cool new tool you found, or those other things.

Cindy Cohn:

And the first-sale doctrine protects us in the real world so that we can share the things we love, like your uncle sharing his love of music with you. We just want that same thing to be able to happen in the digital world.

Chris Lewis:

Certainly there's a difference between that physical good and a digital good and how easy it is to copy it. To me, that comes with the power of technology. Technology is more powerful. Digital technology is more powerful in certain ways. Copying is one. But what we also miss when we move from the physical to the digital world is that we're also dealing with information, and we're dealing with knowledge, for lack of a better word. And that good is no longer just a hard good. It is access to information. It is access to knowledge.

Chris Lewis:

And so if we take the values of digital first sale and transfer them into the digital age, you have to account for the power of the technology, you have to account for the knowledge that it transmits. And the power to transmit so much knowledge combined I think increases the importance of protecting the principles around digital first sale, but it also makes it more challenging.

Cindy Cohn:

I think that's right. I think that what's going on here is that the folks in the content industry who didn't like first sale in the first place are trying to use this shift to get rid of it. And what we're trying to say is no, those values are really important, whether something's physical or digital. And if the digital world presents some more challenges, then we should just address those challenges and not just throw away the values of your uncle sharing his music with you, or someone being able to find some software at a garage sale and use it.

Cindy Cohn:

So those are the kinds of things that they're just as important in the digital world as they were in the analog world. And it's one of those areas where we shouldn't be drawing a distinction between the two, at least in terms of the values we're trying to protect. We may protect them in different ways, but the values are still strong.

Danny O'Brien:

The limits of first sale seem pretty clear and intuitive in the physical world. And really, they reflect what we might imagine we could do with an object that we owned. But I think isn't it true that in the digital environment, those limits have faded away. And actually if I get a copy of something from somebody, not only can I do a lot of things with it, including not just digitizing and sharing it with my favorite nephew, but with hundreds of thousands of people. It makes it a little bit harder to understand what the limits and what we can do with a product that we own in the digital space.

Chris Lewis:

Yeah, that's right. And it also reminds us of the responsibilities that come with the power of new technology. So when the photocopier was created, yes, a photocopier or a Xerox machine could be used to pirate copyrighted works. But we didn't outlaw photocopiers. We didn't outlaw Xerox machines just because there is power in the technology. What we did was we made sure that we had quality enforcement and also expectations in society of the responsibility that comes with the power of that technology.

Chris Lewis:

And I think that's critically important as we move into a digital space. There are multiple examples of new technologies before and after our move into the world of the internet where technologies were challenged. And the understanding was is that there is a balance of responsibility of use when you have a tool that allows you to do things that shouldn't be legal, but also could be used for things that could be infringing. And I think that's important for us to highlight.

Danny O'Brien:

So what are some examples of attempts by rights holders to place controls on digital artifacts that violate that idea of digital first sale, and are a step too far in the power of those rights holders?

Chris Lewis:

Well, I think probably the best known recent case from 2013 was the ReDigi court case. ReDigi was a file sharing service, was sharing music. And that case, I think, got this balance of power wrong where it said that if you're sharing a file and using it to do a transaction. Maybe you're selling a piece of music, a recording, that as long as you ensure that you sell it to one person and you eliminate ownership on your end, just as you would do with a physical good, that that should be legal. And that was not upheld in the ReDigi case. ReDigi lost. And a service that could have provided for sales and purchases of used digital goods, if that's a term we could use, was basically outlawed.

Chris Lewis:

This is dangerous. It's dangerous for the ability for a society to share ideas. It's not just an academic exercise that we're talking about here. More and more of the world's goods are being moved into a digital-only space. And it's really popular right now in the middle of this pandemic to talk about the digital divide with broadband. The low-income communities or rural communities may be left out of having access to broadband. But once they get access to broadband, once we all get access to broadband, that's not the end of the digital divide.

Chris Lewis:

Folks could still be excluded from knowledge. That's another digital divide. If it is cost prohibited because of the new structures around licensing, or if they are limited from sharing information with each other in commonly accepted ways like selling a good or bequeathing a good. So I think that ReDigi case really set us off on the wrong path and highlights some of the harms that we can have if that idea is duplicated with other technologies.

Danny O'Brien:

To put a point on this, I grew up reading very worn secondhand paper books, mostly science fiction that I bought at secondhand bookstores. And right now as a grownup, I have one of those little libraries outside, and there's a huge traffic in my neighborhood of people leaving books and taking books. And I think what you're describing here is that both of those acts become, if not actively illegal, very difficult to do because there's no way that I can give someone a digital artifact and demonstrate that I destroyed the other copy that I might theoretically have when I gave it to the other person. Is that right?

Chris Lewis:

Exactly. I know Cindy knows. And Danny, you may not know. I spent six years on my local school board here in Alexandria, Virginia, and lived two blocks from the public library. And at our public library in our school division that had a high rates of poverty, that was a place for students to go, not only to get access to the internet, if they did not have it, but also to get access to books and get access to knowledge. And all of those books, whether you're talking about secondhand stores or the public library, which really provides equity and access to knowledge, if those books are not available on a digital space where our students in Alexandria or around the country can get access to them, we're really going to have an increasing digital divide.

Cindy Cohn:

I think that that is to me the most dangerous piece about this. Of course, I care about people being able to get their brother's record collections or buy a piece of software at a garage sale and still be able to use it. But really this is about knowledge. And it really brings one of the big fights at EFF. And both Public Knowledge and EFF are working on today is the attack on the Internet Archive which is trying to make access to all the world's knowledge available to all the world's people.

Cindy Cohn:

The implications of that battle, there are specific things about that battle that are unique to the Internet Archive, but what's really going on in a broader scope is an attempt to really limit digital lending in a way that will make it very difficult for people without access to power and complicated systems to be able to have knowledge. And we're already seeing this with school kids who can't afford the books or the license on the books. And I grew up in a pretty remote rural area, and people shared textbooks and other books just because it was just hard to get them from the publishers.

Cindy Cohn:

And I think we're headed back to that time when the internet should have freed us from that time. It's exactly backwards.

Chris Lewis:

That's right. Who's going to get to use the power of the technology? Is it going to be limited to a few stakeholders who are going to control that knowledge and information through far more expensive licensing schemes and setups than we had in the old book and public library markets, or are we going to use that technology to benefit everyone?

Cindy Cohn:

And the practical impact of turning everything into a service is that everybody's got to have access to credit cards or licensing schemes, or ongoing things that are pretty hard for people who are already at the margins. They already have to go to the library to get access or hang out outside of McDonald's to get access. If you need a service and an account, and probably a credit card to be able to continue to have access to stuff that you already bought, but it goes away if you don't keep paying monthly.

Cindy Cohn:

That's a huge implication of this shift. And again, the first-sale doctrine in the offline world means that you get your hands on that book and you bought it, whether you bought it first sale, you bought it from the first person who bought it, or the third person who bought it, or you checked it out of the library. That knowledge stays where you have it. Whereas with these services, things can go away. And as we've learned, a lot of the services that are offering these kinds of things are not operations that exists forever. So the business goes out of business, and the next thing you know, you've lost access to all the information that you have been paying monthly to get access to.

Cindy Cohn:

I think that leaves people really at the mercy of hoping that the entity that they signed up for to get access to knowledge survives bankruptcy. So there's a lot of implications in a bunch of different directions about trying to remove the first sale rights in the digital world.

Chris Lewis:

Right. I think we've seen a retrenching of how people understand ownership, whether you've bought something or whether you're renting it or leasing it. And I think unfortunately in a lot of digital platforms we're seeing that twisted where someone tells you that you're buying a book or you're buying access to a TV show. And you're really not buying that good. You're leasing, or you're renting access is what you're doing.

Danny O'Brien:

I think we've talked a bit about intuitions here. And it's definitely the point of which people realize that they've lost something is when their intuition about ownership hits the hard wall of what the business thinks or claims that they've done. Just a couple of examples from both the far ancient past of the digital world and more recently. I remember people's shock when due to a licensing disagreement, Amazon started removing copies of George Orwell books that people had purchased, and they believed that they bought a legitimate copy.

Danny O'Brien:

Amazon decided it wasn't a legitimate copy, so they just deleted it from their library collection. It's really odd to have 1984 disappear in that way. And then more recently when people were playing, a little more trivially, 'Fortnite' and suddenly to find that because there was an argument there between Apple and Fortnite's publishers, they were suddenly stopped from being able to play that going forward. We've talked a little bit about how these ideas of ownership have evaporated, but not too much about the click-through contracts and the licenses that are used to enforce this thing.

Danny O'Brien:

It is crazy that we clicked through these multi-page documents that nobody ever reads, but how did that get embedded in the law? How can it be that I can sign something that I didn't read and it still be enforced against me?

Chris Lewis:

Right. Contract law is a powerful thing, right? And these pop-up terms of services or EULAs, the end user licensing agreements, they are long. And in a world where everything is digital, you're having to see one or read one and understand the legal implications of one every day and multiple times a day oftentimes. So I understand the importance of making sure that there are notices and best practices on online services, but at the same time, we need to find ways to be very clear with the consumer on what they're actually purchasing.

Chris Lewis:

And even more so, we need to try to find and promote ways to rebalance or to find that balance of the power of the consumer to actually have control over the things that they've bought. And if we don't, it's going to have a negative impact on access of knowledge. It's going to have a negative impact on the marketplace for consumers as well. We saw this recently in the digital marketplace around tickets and ticketing. Have you guys been following the BOSS Act that was introduced in Congress?

Cindy Cohn:

No. I suspect my colleagues have been, but I have not.

Chris Lewis:

The quick breakdown is it is called BOSS, yes, after someone's love of Bruce Springsteen. A congressman from New Jersey, Bill Pascrell and Senator Blumenthal introduced this because of the dominance of consumers by Ticketmaster in the ticketing marketplace. They not only control the venues and therefore control the services that are offered, but they control the goods, the ticketing itself. And there are secondhand ticketing sites, but they're often squeezed out because of these intellectual property and other agreements around what you can do with a ticket once you purchase it.

Chris Lewis:

And so that's creeping into the digital marketplace for tickets, and that reduces competition for customers which lowers their prices. And also it also eliminates the ability to have that secondhand marketplace, just like we talked about books where you could sell a ticket if you all of a sudden can't go to a show or a sporting event, or to hand it off to someone else. If you can't go, sometimes you give it to your kids, right? So it comes up again and again as everything gets digitized. That these agreements, these terms and conditions need to be clear, but they also need to be fair. And if we need to enact some reforms and laws to achieve that, I think that's a good thing.

Cindy Cohn:

It happened first with some airline tickets. I'm old enough to remember when you could sell or give your airline ticket to someone else. And those days are long gone, and it loses consumers millions and millions of dollars every year, because they end up having to pay these fees if they want to change it or just let the ticket lie. So this love of contract as a way to organize society and the recognition that that really empowers the powerful and disempowers the less powerful. And in this scenario, the less powerful is you, dear consumer. And the powerful are the companies that are selling you things.

Cindy Cohn:

We had a period in time when it was contracts, and we moved away from that. And I think it's time to think about that as well, is putting a baseline in of consumer protection that prevents contracts that really are not fair. And recognizing the power imbalance between you as ... These are called contracts of adhesion. A contract where you don't really get to sit down and negotiate it. You just get handed it and you either do the thing or you don't do the thing, but you don't really have any bargaining power.

Cindy Cohn:

They're different. They're called contracts of adhesion. Then the kinds of contract where you sit down with somebody and you negotiate, "I'll give you this if you give me that." That business to business might happen, or even person to person might happen. And recognizing those differences and empowering people to really have a baseline of fairness and be able to attack fairness is something that is just desperately needed. We're getting a little away from ... What the first-sale doctrine was in the analog world was a way to not let contract law always be the only thing that mattered in the sale of an analog good.

Cindy Cohn:

That's why when we think of about digital first sale, we need something as well that protects us against the only thing that matters is the so-called contract, which isn't really a contract in the way that I think of it, like two people have a meeting of the minds about what's going to happen between them. That we need to have some baseline. And there is a couple ways to do that in the law. One is California has a bunch of baseline consumer protection laws that you can't go below on certain things.

Cindy Cohn:

The other way to do it is to create these independent doctrines, like the first-sale doctrine that just says you just can't contract away this ability of somebody to own something when they bought it. And the third way is to really empower consumers to be able to say that something is unfair at a level that they can't right now. That really those claims don't really succeed. So those are three things. I'm the lawyer who litigates, so I think of, well what could you do in court?

Chris Lewis:

In the same way, you're thinking from a Lawyers perspective, I think from an advocate's perspective. How do we help the public demand that the power remains in their hands? And I think we do that through stories. That's why I tell the story of my uncle and his music. That's why we tell the story of what consumers are facing with tickets and whether they bought them and then have the right to do what they want with them. These stories are important because that's when it makes sense to an average consumer.

Chris Lewis:

And we have to continue to share these. And even if we get some piecemeal fixes, Public Knowledge is advocating for -You talked about the internet archive situation in public libraries - we're advocating for a very simple law in Congress to just say that it is not illegal for a library to do what libraries have always done. That they bought a book, they own it, they can scan it, and they can lend it out to one customer at a time. Everyone knows their public library. Everyone understands it as a concept. And we need to take these easy to understand examples to promote how a digital first sale can work across the entire marketplace.

Danny O'Brien:

Yes. Listening to all of these examples, I do feel that we're slipping into losing these rates, and on the hour by hour, minute by minute basis. I can see how we get there. For instance, when you're talking about ticket sales, there's a sense in which the biggest concern people have on a day-to-day basis when they buy a ticket is that bots come and buy these tickets first and then and scalp people essentially. So you can understand why the companies might make those tickets tied to a particular individual, but I've never thought about the fact that actually that prevents me from being able to give it to a friend. And it gives the company itself a huge monopoly power over that.

Danny O'Brien:

And similarly, even in this conversation, I've been sitting and thinking, well, these days the books I buy, I often buy as eBooks, but I want to be able to leave my library, my collection to either my family when I die, or how the great libraries were always constructed, which is by people leaving their private library to the public system. And we have to have that as a possibility in the future. And with the current situation with eBooks, what happens at the end of it? Do they just evaporate? Do they have to be buried with me in my grave like an Egyptian pharaoh? It does feel like we have to create some rules about this before we find ourselves in a much more greatly impoverished situation.

Chris Lewis:

And I think there are three ways to attack this that we should keep in mind, because they can work together. Cindy, you noted legal changes, changes in the law, changes in the understanding of how the law is applied. That's one very important way just to set clear expectations and clear protections. And I'm sure there's other specific ones that we can come up with. I mentioned the one about public libraries. But the public library law that we're suggesting wouldn't even be possible if we also weren't attacking it from the technological perspective. The good old let's nerd harder.

Chris Lewis:

So if you law harder and you nerd harder, we can come up with a lot of great solutions here. Controlled digital lending, the ability to lend out a book and then retrieve it, and make sure that the person you lend it to does not keep it. That's an innovation in technology. And it allows for the power of technology to work for everyone in the way public libraries have always worked. So if we law harder and we nerd harder, and then we set better norms around our society, I think all of those have to work together as a solution.

Chris Lewis:

People are already doing the norm stuff and they don't even know it when instead of buying access to go to the movies, people are buying access to Netflix, or they're buying access to some other streaming service. When they do that and then they share their password with their family members, that's a change in norms. And a change in norms that, by the way, many of the streaming companies are okay with. They have not actively stopped it. They haven't tried to stop it through licensing. They probably could, the way that the law is interpreted right now, but they realized that they're adding viewers.

Chris Lewis:

And I think that's a good thing. It shifts the norm from buying to one-time viewing or buying a DVD to buying access to a library of information, a library of digital goods.

Cindy Cohn:

No, I think you're right that a lot of the services are quietly cool with password sharing. One of the things that we have long pointed out is that we're sliding into other EFF territory. The Computer Fraud and Abuse Act and some of the other state anti-hacking laws actually do make that illegal, and not just illegal, but criminal. And copyright law itself of course, has criminal penalties. So I do think that this is a long time issue in copyright law, which is that there's lots of things that violate copyright law, or at least the content owner's view of copyright law and the law that are actually good for them.

Cindy Cohn:

The EFF was founded by John Perry Barlow who wrote songs for the Grateful Dead. And the big insight that the Grateful Dead had is that if you let people record your live concerts, which is not legal, they'll share those tapes around and you end up with more people coming to your concerts. Similarly, if you let people share their passwords, more people get turned on to your service and it'll end up growing your pie. So I think that I would like to see all the things that people do that are technically illegal, but really useful to society become legal so they can come out of the shadows.

Danny O'Brien:

I often find that one of the challenges here is that because the responsibility for how these systems are built is so diffused, there are a thousand lawyers, present company excepted, and thousands of vested interests trying to decide how to do this, that no one is able to stand up, either for the user, or just for common sense. So just to give an example, we had a huge fight with Netflix when they were trying to force DRM into web standards. But in the conversations with the people who were advocating for this at venues like the W3C, the main web standards organization, these were technologists.

Danny O'Brien:

And we were sitting down going, "You do know that first of all, this doesn't work to stop mass piracy. And also it stops your customers from doing perfectly reasonable things with the products that they've purchased from you like pulling out a little clip to show their friends or sharing it on a big screen for their friends and family." And the off the record conversations I had is they would go, "We would love to do this without DRM. We think it would be far more successful, far more popular. But we're tied to these contracts with the original rights holders, and we can't get out of those, so we have to enforce the impossible."

Danny O'Brien:

I guess this is my question to you, Chris as an activist. When you have this debate over the limits of copyright and the limits of ownership, a lot of the time this ends up being a debate between big tech and the big rights holders, Hollywood. How do we get the voice of the user and the public interest into that debate?

Chris Lewis:

Right. This is something that we just have to continue to grow. I don't know how many times a month I say to folks in Washington, "Please stop saying this is a fight between big tech and big content. It is not. There is a third and far more important perspective and it's public interest perspective, what is important for our society?" Again, it's that balance of values that has to be included in the policymaking that I think when balanced properly takes care of the needs or can take care of the needs of big tech and big content in the long run. And especially if we combine it with smart technological innovations.

Chris Lewis:

So we have a movement to build. The raw politics of it righty now is that I don't think we have enough allies and champions in Washington who understand this balance. And we need to continue to organize and bring these stories to them. And the crazy thing is when they hear the common sense stories, people are easily converted to Washington. Cindy, remember the small, but fierce fight we had a few years ago on unlocking cell phones. And the reason that worked is because everyone owns a cell phone, every member of Congress, the president.

Chris Lewis:

And so as soon as the public started to say, "It's insane that I can't unlock this digital lock on something that I bought and I own in order to switch to another service or to get it fixed properly, or to sell it to someone else," that was an easy story to tell because everyone understood it. So we just got to continue to do that in order to build more champions and more understanding among policymakers.

Cindy Cohn:

I'm just sitting here nodding my head, because we really do need a movement. The public interest side of this debate is just so tiny compared to the size of the problems that we're trying to address and the size of the people on the other side. And I think that you're completely right. PK, you guys do heroic work making voices heard in Congress and we do our best to help you, but we're so tiny compared to the size of these fights and the size that we need to be. That we really do need to turn this into a movement, and a movement that really doesn't go away in between the crises. That's there all the time, because that's what happens on the other side.

Danny O'Brien:

To end on a somewhat positive note, I do remember the amazing shift that happened when members of Congress first started using iPods. We had all of these debates about the terrors of piracy online. And then when folks got iPods, I just remember congresspeople standing up and saying, "You mean it's criminal. These people want to stop me from transferring my CD collection to my iPod? That's insane." And I think that we have a good ... I think time is on our side in many ways, because as a new generation of politicians come up who recognize these intuitions that I think technology users have, I think there's a better chance of encoding those intuitions in law.

Cindy Cohn:

Well, that's a great segue I think, Danny. So this podcast is, 'how are we fixing the internet?', Chris, so what does the world look like if we get it right?

Chris Lewis:

Oh, wow. The possibilities are fantastic if we get it right. A world where average users of technology are empowered to have information at their fingertips no matter where they're born as long as they have access to the internet. That's a powerful world. Gosh, I remember coming back from school. I'm not a lawyer. I just went and got an undergraduate degree at Harvard University and I came back home to Virginia. And I remember meeting with other African-American high school students, kids who look like me, who grew up in the same county I grew up in. And they literally said things to me like, "I didn't know that black people went to Harvard."

Chris Lewis:

I'm not joking. And I said, kid, "You haven't even been across the county, let alone to a place like Boston." The power of the internet to open up the worldview of those kids or other kids, if they have access to it is limitless. I can't emphasize that enough.

Cindy Cohn:

Getting digital first sales right to me is exactly that. It's the ability for us to really let people who don't come from privileged backgrounds or privileged places have access to the world's knowledge. And then this to me goes back to why copyright is in the constitution. It's in the constitution to promote the progress of science and the useful arts. If we get this right, we're going to unleash the power of so many people around the world who haven't been able to contribute to promoting the progress of science and the useful arts, because they haven't had access to the information they need to get to the place where they can help us.

Cindy Cohn:

So I feel like we're just unleashing the potential of so many people, especially kids who really haven't been able to participate in growing the sciences and the useful arts.

Chris Lewis:

Right. And the things that they're going to produce are going to be amazing. Being creative requires some spark or inspiration. It's why if you look at the history of American music, the blues built off of Negro spirituals and rock and roll built off of the blues and country. Creativity builds on itself. And if young people don't have access to the world's knowledge, the world's information, they're not going to have that foundation to build off of and to improve and innovate.

Danny O'Brien:

I think that we always think of knowledge as a gift, but it's not going to be much of a gift if we can't give it on, if we can't like pass it to either the next generation or to people that don't currently have it. So I think at the heart of first sale and digital first sale is really about that ability to share what you have and pass it on, and it just not be a dead end.

Cindy Cohn:

Thank you so much, Chris.

Danny O'Brien:

Cindy, that was a great discussion. Really, the thing that stuck with me, I think is once again this idea that debates over copyright aren't really industry deals between big tech and big content. They're actually about what a future society is going to be like. And we have to build them with the public interest and long-term goals in mind. And particularly, the thing I hadn't really got about digital first sale is a lot of it's about posterity and legacy. A lot of it's about being able to have the right to give somebody what you've received.

Cindy Cohn:

I think that that's tremendously important. And of course, the place where that has traditionally happened so much in our society is in libraries. So they're central to the conversation.

Danny O'Brien:

I hadn't really wrapped my head around, if you don't have first sale or if you don't have this idea of, "I bought it, so I own it", then you don't get the opportunity to create a system around lending, and lending libraries. But how do we change something like that that's about a norm that's developing and we want to shift it around? Chris talked a bit about legal reform. The lawmaking reform. And one of the ways I know that you can achieve this thing is by having very specific, targeted copyright reform rather than these big omnibus copyright bills that you can just nudge things along. And I liked that Chris talked about very small bills that you can drop in if we can get support from politicians.

Cindy Cohn:

I think that it may be that we have to do this in tiny little bites, like the BOSS Act he talked about and the very narrow protection for libraries. I find that a little frustrating. The other thing in talking about the court cases, and especially the ReDigi case that Chris mentioned, the courts have gotten some of this wrong. And so that's an opportunity for ... There's an opportunity there for them to just get it right. Copyright is in the constitution. It's a constitutional analysis about whether we're promoting science and the useful arts. There's some undoing that we're going to need to do for digital first sale, but we certainly could get there.

Danny O'Brien:

And this is largely a co-created doctrine. Again, I'm not the lawyer, but if you have disagreements between the circuits in the United States, at least, or you can bring this to the Supreme Court. You can actually, I guess, create a more systemic view of the whole problem, the whole solution. But again, that needs people to advocate for it, or at least to point out the problems, which comes back to this idea about building a movement. And I know that in the '90s, in the 2000s, we did have that free culture movement that recognized that copyright and issues around copyright were important.

Danny O'Brien:

And I now feel like we're facing the hard end of that fight. That were in a situation where it's not just theoretical anymore. It's really about how people are living their lives. And that requires people to stand up and actually consult with other people to work out what a good strategy might be going forward.

Cindy Cohn:

This is one of the real geniuses of Chris is that he is an activist, and he thinks about this from the context of building a movement and collecting the stories and setting the groundwork to get the lawmakers to act, or the courts to recognize the issues at stake beyond big tech and big content as you started this out with. And that's the place where we're in complete agreement. This is a movement. And the good thing about everybody relying on digital first sale is that we have a lot of people who are impacted by it. And so there's an opportunity there. I think the trick for us in building this movement is to make sure people see what they're losing so that we don't just slide into a world in which it seems normal to just license knowledge, as opposed to actually owning it and being able to hand it on to people.

Cindy Cohn:

I also really appreciated Chris's recognition that this movement is one that will be grounded in part in standing up for marginalized voices. The people who are really going to lose out if they don't have the money to continue to pay for access to knowledge. And I appreciate that he really brings that lens to the conversation, because I think it's exactly right.

Danny O'Brien:

Well, Cindy, I don't know whether you've realized this, but actually this was our last episode in this mini-series, which I think technically means we fixed the internet. Although in practice, I think this is only a smattering of the many challenges you and I and the rest of our colleagues have in putting the world to rights.

Cindy Cohn:

I can't believe we reached the end of this. This has been really great fun. And I really want to give a special shout-out to our colleague, Rainey Reitman who carried this along and really made it happen. I appreciate your view that we fixed the internet, but really this podcast is how to fix the internet. And hopefully we've pointed the way to how to fix it, but I think that what's come up over and over again in all of these conversations is how we need you.

Cindy Cohn:

We need the engagement of a broader community, whether we call it a movement or we call it the users, or we call it the bigger community. So there's lots of ways that you can get involved to help us get to that place where we don't need this podcast anymore because the internet's fixed. Of course, I'm the head of the EFF, so we work for tips. And if you think that what we're doing to try to move things forward is good, please donate and join us at EFF, join our part of the movement. We've had lots of friends on this podcast who also are other pieces of the movement. And if any of those called to you, please support them as well.

Cindy Cohn:

Again, the way a movement works is that you don't have to just pick one horse and go for it. You can really support a range of things that interest you. And I certainly hope that you will.

Danny O'Brien:

And if you have any feedback on this particular branch of the digital revolution, let us know at the eff.org/podcast. And we hope to see you in the very near future.

Danny O'Brien:

Thanks again for joining us. If you'd like to support the Electronic Frontier Foundation, here are three things you can do today. One, you can hit subscribe in your podcast player of choice. And if you have time, please leave a review. It helps more people find us. Two, please share on social media and with your friends and family. Three, please visit eff.org/podcasts where you will find more episodes, learn about these issues. You can donate to become a member and lots more.

Danny O'Brien:

Members are the only reason we can do this work, plus you can get cool stuff like an EFF hat or an EFF hoodie, or even a camera cover for your laptop. Thanks once again for joining us. And if you have any feedback on this episode, please email podcast@eff.org. We do read every email. This podcast was produced by the Electronic Frontier Foundation with the help from Stuga Studios. Music by Nat Keefe of BeatMower.