Queen IpodYou may have heard that during his recent visit, President Obama reportedly presented Queen Elizabeth II of England with a personalized iPod loaded with 40 show tunes.  An article in the Electronic Frontier Foundation (“EFF”) web site by Fred von Lohmann recently pondered whether President Obama violated the law by presenting the Queen with digital media?

Under traditional copyright law, the “first sale” doctrine permits one to transfer, resell, or gift copyrighted materials to another person despite the copyright owner’s exclusive right of distribution so long as the owner or transferor does not copy the material.  For example, if I own a painting by a famous artist, I am free to sell it to another party even though I don’t own the copyright.  I can’t, however, commission a copy of the painting and sell the copy.  That would constitute copyright infringement.

That’s fine and dandy except, as the EFF was quick to note, in the digital era it’s rare that the possessor of digital works, such as music, actually “owns” it.  Instead, when one purchases music via a computer it is done under a “license,” which in most instances does not transfer ownership to the purchaser.

Whether President Obama broke the law in giving a the Queen an iPod is, as the EFF noted, difficult to determine and is dependent upon Apple’s 9,000 word license, which appears to purposely to leave the question of ownership unanswered.  Additionally, it’s unclear how the music on the Queen’s new iPod was transferred to the player.  If it was directly transferred to the iPod, the President or his staff may not be in breach of the iTunes license but if the music was copied from another collection then there may, in fact, be an infringement issue.  There certainly would be an issue if the original copy of the music was not deleted after making a copy for the Queen.

The iTunes terms of use also states that the music purchased from its store is for “personal use”.  The EFF raises the question of whether a diplomatic gift qualifies as “personal use” or, is it, perhaps, “fair use.”   If it is not fair use, can President Obama be sued for breach of contract?

Of course, while the questions posed above are hypothetical — both the President and the Queen are protected by sovereign immunity —  a simple gift of music raises some very pertinent  questions about the nature of transactions in the digital era.  To read the complete article, visit the Electronic Freedom Foundation web site.

— Adam G. Garson, Esq.