Last month, a British tabloid reported that Bruce Willis was planning to sue Apple. The actor, the newspaper explained, was furious that iTunes’s terms of service would keep him from leaving his music collection to his daughters when he died. The story was soon revealed to be somewhere between fantasy and fabrication. But even before a five-word tweet from Willis’ wife (“it’s not a true story”) definitively refuted the article’s claims, the news had gone viral, spreading far beyond the usual haunts of fatuous celebrity journalism. Something in the rage of Imaginary Bruce Willis had touched a nerve.
Part of what makes the story so remarkable is that it’s also so implausible. Bruce Willis is one of the most successful actors of his generation, with a Hollywood career spanning three decades and multiple mega-hits. He’s so successful that surely he could afford to leave his daughters enough money to buy all the digital music they they can listen to. No child of Bruce Willis will ever want for music.
But the story blew up like something out of a Bruce Willis movie because it tweaked an anxiety many people share about copyright: that we no longer really own the songs we listen to or the books we read. Traditionally, a crucial part of copyright law’s bargain between author and audience was that the author owns the copyright, the audience owns their copies. This second half of the deal—that we have the right to give away our media, to lend them to friends or sell them to strangers—was enforced by the doctrine known as first sale. You buy something and it’s yours. Only the author has the right to authorize more copies, but you can do with yours as you please.
Increasingly, however, the terms of service and technical restrictions that lock down digital copies are reneging on this deal. You can’t sell that e-book to a used bookstore when you’re done with it, for example, or lend it, or leave your collection to your family. That just ain’t right, and you know who’s going to do something about it? Bruce “Yippie Ki-Yay” Willis. Who better than Detective John McClane, always ready with a bullet, a one-liner, or an exasperated sigh, to fight for first sale? Maybe even literally?
It’s worth noting that first sale is the same legal principle that the start-up ReDigi is now fighting for in a New York courtroom. ReDigi provides an online digital marketplace for users to upload iTunes tracks and sell them to each other. (ReDigi, of course, takes a cut.) ReDigi argues that this is legal first sale. Capitol Records disagrees, saying that first sale is for discs and for books, not for digital files. But compared with the rage of Butch Coolidge, there’s something bloodless about the dispute. Why is it that the one story went viral and not the other?
I think it is because first sale matters to people on a deep, emotional level. It’s about our music, but it’s also about us. In the words of legal scholar Margaret Jane Radin, the things we own are “closely bound up with personhood.” In her writing, Radin refers to things like wedding rings and family heirlooms, prized possessions without price. But media collections, too, are emanations of the self. Our libraries and our mixtapes express who we are. From first editions to collected works, it matters what we have on our bookshelves. And the contents of our iPods and Kindles, like our comic books and cassette tapes and pulpy paperbacks before them, are an essential part of how we lead fulfilling lives, rich with culture and knowledge.
Radin’s point is that ownership matters. It matter for human reasons, for humane reasons. When your guests browse your bookshelves, that, too, is socializing, along with the cocktails and conversation. Making a mixtape is an intimate act. Having a thing sitting in your home, a heavy inconvenient thing made of dead trees or polymerized petrochemicals, is a kind of exclusion: it ensures that no one can take that piece of art away. But it is also offers a kind of inclusion: to lend a book is to invite a friend to the delights it contains.
In that light, it matters very much that Imaginary Bruce Willis wants to sue Apple to leave his daughters his digital music collection. It’s a piece of him, a bit like one of his guitars, or, in a different way, like one of his movies.
But therein lies a puzzle, and not just for the courts or for legislators. A guitar is a physical thing. it can be given, and most likely will be to one of Willis’ daughters one day. His movies are intangible works, made available through the Hollywood system. All his daughters can “have” them, and so can the rest of us. Imaginary Bruce Willis’s music collection, on the other hand, is neither fish nor fowl. A Led Zeppelin track in his collection is not the hard drive it’s stored on, nor is it the sequence of bits that can be beamed around the world at a mouse-click. It is both at once, which means it is something else, something that has developed a personality of its own. There are many like it, but this one is his.
Authors note: This post is my first as a contributing editor for legal affairs here at PW, and I’m delighted to be joining the team. I’m going to be writing and posting here on PWxyz about how copyright is mutating in the digital world, and what it means for all of us who love words. Some of the topics I hope to take on include the Google Books cases, library lending, orphan works, online enforcement, the agency-model lawsuits, and anything else involving a courtroom. (If you find this interesting, I hope you’ll consider joining me at the In re Books conference at New York Law School on October 26 and 27 on law and the future of books.)