Friday, June 9, 2023

Recent Supreme Court Decision Will Negatively Impact Appropriation Artists

Forbes contributor Eric Goldman teases out some (very) possible repercussions to the recent Wiley v. Kirtsaeng Supreme Court decision.

[A]midst the good news, it’s impossible to ignore the rapid and probably irreversible demise of copyright’s First Sale doctrine, meaning this legal victory is likely short-lived at best.

Is this a good example of “bad facts make bad law”? Not really. The reason, Goldman argues, is not due to anything other than to the ever-present shift from tangible to intangible property: ie- physical to digital media.

Copyright’s First Sale doctrine has become increasingly less useful to consumers over the past couple of decades due to changes in technology and business practices, and I anticipate this ruling will accelerate the trend.

Goldman adds that, “[t]here is no ‘digital’ First Sale doctrine, meaning that a buyer of an electronic file cannot resell or transfer ‘possession’ of that electronic file under the First Sale doctrine.”

And this is where it gets really interesting (not that it wasn’t already). Coincidentally, NPR aired a story yesterday about mp3s and the first sale doctrine concerning a current lawsuit by Capitol Records against ReDigi Company (a digital version of a used record store). was an

ReDigi argues that you own the songs, and you should be able to resell mp3s just like you can a physical CD. “It says its technology can ensure compliance with copyright law, first by verifying that you legally own a song, and then by removing all traces of the song from your computer and synced devices once you decide to sell it.”

If in fact all traces of a song can be removed from a computer, who’s to say that we can’t have technology that allows for the complete removal of an image (still or moving) from a computer, thus dispelling the notion that the appropriation of digital images without consent does not damage or impact the property rights of the lawful image owner. In other words, the idealistic theory that digital images are part of the public landscape — the post-post-modern vernacular — pretty much disappears. In fact, adding some of the strategies Goldman lays out to this technological repercussion pretty much guarantees that the only thing this recent decision did for artists was to force added legal and technological restrictions to impede artmaking. Is this what Wiley v. Kirtsaeng delivered?

Goldman’s Forbes article may be accessed here.

UPDATE: April 2, 2013

ReDigi loses court battle. Court holds that resale of digital files infringes copyright.


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