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A bill introduced Sept. 18 would make clear that consumers actually owned the electronic devices, and any accompanying software on that device, that they purchased, according to sponsor Rep. Blake Farenthold's (R-Texas). The You Own Devices Act (H.R. 5586) would amend the Copyright Act “to provide that the first sale doctrine applies to any computer program that enables a machine or other product to operate.” The bill, which is unlikely to receive attention during Congress's lame-duck legislative session, was well-received by consumer's rights groups.

Section 109(a) of the Copyright Act, 17 U.S.C. §109(a), serves as the foundation for the first sale doctrine. H.R. 5586 would amend Section 109(a) by adding a provision covering “transfer of computer programs.” That provision would state:if a computer program enables any part of a machine or other product to operate, the owner of the machine or other product is entitled to transfer an authorized copy of the computer pro gram, or the right to obtain such copy, when the owner sells, leases, or otherwise transfers the machine or other product to another person. The right to transfer provided under this subsection may not be waived by any agreement.

‘Things' Versus SoftwareFarenthold had expressed concern during a Sept. 17 hearing on Section 1201 of the Digital Millennium Copyright Act over what he perceived was a muddling between patents and copyrights when it comes to consumer products. “Traditionally patent law has protected things and copyright law has protected artistic-type works,” he said. “But now more and more things have software in them and you are licensing that software when you purchase a thing.” Farenthold asked the witnesses if there was a way to draw a distinction in copyright “between software that is an integral part of a thing as opposed to an add-on app that you would put on your telephone.”

The fair use doctrine permits the unauthorized digitization of copyrighted works in order to create a full-text searchable database, the U.S. Court of Appeals for the Second Circuit ruled June 10.Affirming summary judgment in favor of a consortium of university libraries, the court also ruled that the fair use doctrine permits the unauthorized conversion of those works into accessible formats for use by persons with disabilities, such as the blind.

The dispute is connected to the long-running conflict between Google Inc. and various authors of books that Google included in a mass digitization program. In 2004, Google began soliciting the participation of publishers in its Google Print for Publishers service, part of what was then called the Google Print project, aimed at making information available for free over the Internet.Subsequently, Google announced a new project, Google Print for Libraries. In 2005, Google Print was renamed Google Book Search and it is now known simply as Google Books. Under this program, Google made arrangements with several of the world's largest libraries to digitize the entire contents of their collections to create an online full-text searchable database.The announcement of this program triggered a copyright infringement action by the Authors Guild that continues to this day.

Turning to the fair use question, the court first concluded that the full-text search function of the Hathitrust Digital Library was a “quintessentially transformative use,” and thus constituted fair use. The court said:the result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn. Indeed, we can discern little or no resemblance between the original text and the results of the HDL full-text search.There is no evidence that the Authors write with the purpose of enabling text searches of their books. Consequently, the full-text search function does not “supersede[ ] the objects [or purposes] of the original creation.”Turning to the fourth fair use factor—whether the use functions as a substitute for the original work—the court rejected the argument that such use represents lost sales to the extent that it prevents the future development of a market for licensing copies of works to be used in full-text searches.However, the court emphasized that the search function “does not serve as a substitute for the books that are being searched.”