June 21, 2003

No Sale Doctrine

I would like this to be the law. I'll call it the "no sale doctrine":

If a copyright holder doesn't sell his work (any more), his remedies are restricted to a "notice and take-down" procedure. He can't claim damages. And criminal law provisions against copyright violations don't apply.

Here are some reasons for this proposal.

The original purpose of copyright law is to give the copyright holder a monopoly right on selling the work. This way, he can sell copies of the work over the mere production price of each unit if people attach some value to the work. For example, J.K. Rowling and her publishers can sell "Harry Potter" books at a price higher than the cost of printing them, since other people are prohibited by copyright to do so.

That means that for books out of print or other works which are not sold by the copyright holder, there is at least no economic damage done to the copyright holder if other people copy and distribute the work without authorization.

So the original purpose of copyright law doesn't seem to apply anymore in this situation.

This line of thinking is close to Larry Lessig's proposal of a "Public Domain Enhancement Act" or "Eldred Act" (the same proposal under two different names). If a copyright holder isn't willing to pay a "fee" or "tax" of $1, chances are there is no economic value to his copyright, as for the vast majority of works after fifty years. Under the "no sales doctrine" everyone posting works without commercial value on the Internet would be liable only to take them down on notice from the copyright holder, not for damages.

Posted by Karl-Friedrich Lenz at June 21, 2003 06:37 PM | TrackBack
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