joegratz.net

I got an email this morning from a local company called Schmap — presumably as in “map, schmap.” I live in San Francisco and ocasionally post photos from my city wanderings to Flickr, licensing them under a Creative Commons Attribution-NonCommercial license. They’re putting together an electronic city guide and are selecting photos from Flickr to include. Seeking permission to include a cameraphone photo I took at a diner while studying for the bar exam, they wrote:

Your photo(s) shown below have been short-listed for inclusion in our Schmap San Francisco Guide, to be published March 2006.
The creative commons license that you’ve assigned your photo(s) provides for non-commercial use. While all our Schmap destination guides will be FREE to download, some photographers might nevertheless consider these to be commercial (advertising revenue will support free distribution to our readers) . . . .

This strikes me as an exceedingly smart way to develop a pool of free urban photography. Rather than plunging forward and planning to brush off infringement claims from small-time Creative Commons licensors, they decided to ask permission, trusting that photographers’ egos will lead them to grant it. And the license agreement they proffer is really quite fair:

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MTV.com has a pretty good story on reselling iPods that the seller has loaded with music. The story notes that the RIAAs’ Cary Sherman thinks selling a loaded iPod is always infringement, and quotes Winston & Strawn copyright lawyer Andrew Bridges — counsel for eBay — who notes that the law on the issue isn’t entirely settled.

Bridges is right (as usual) when he says that selling a loaded iPod to which the owner copied music for her own personal use is probably not infringement. Anyone is allowed to sell a lawfully made copy of a copyrighted work without the copyright holder’s permission. The files on the iPod would be “lawfully made” because consumers have the right to copy music to their own portable music players. (This right is not explicitly enshrined in statute, but it was made pretty clear in Diamond Multimedia — a case Bridges litigated — and counsel for the copyright holders acknowledged its existence at oral argument in Grokster.)

Of course, the legality of the sale depends on the legality of the iPod copy. If the owner’s purpose in making the iPod copy was anything other than for personal listening, the copy might not be lawfully made. There’s very little guidance from Congress or the courts on this point, and edge cases are particularly difficult. It’s easy to imagine an iPod owner loading up her new iPod with MP3s, which she intends to listen to until she gets a new iPod, but knowing that in a few years she’ll probably eBay the loaded iPod. Is the copy lawfully made, because her primary purpose was noncommercial personal use? Or is the copy infringing, since she had an inkling of commerce? We don’t know, and I’m not even sure what the right answer ought to be.

No matter what the precise contours of the personal “space-shifting” right are, they almost certainly don’t allow a person to buy an iPod, load it up with unlicensed copies of copyrighted music, then immediately sell it for a premium on eBay.