I've also considered the implications of moving to Access models. I can see that model not only applying to consumer media, like books, music, movies, games, but also to software. Companies that write software have traditionally released their products under restrictive licenses, thus circumventing the first sale doctrine. If consumer media moves to an Access model, I can also see software moving to a cloud subscription model. The software would be accessed and paid for in regular installments, thereby more mirroring a lease than a sale. I think this would be less problematic from a first sale perspective because the consumer expectations of ownership are better mirrored by the economic reality of the transaction.

Another advantage of Access models is better price discrimination. This may lead to lower consumer prices. Different uses for media could be sold at different price tiers and resulting in more consumer surplus. However, if the Access network owners control this market, would the lack of a secondary market result in higher prices ultimately for the consumer? It is unclear whether the first sale doctrine guarantees a secondary market or merely allows it. Also, if a secondary market exists, can that market not be controlled by the primary sellers too?

-- AaronChan - 27 Sep 2011

Especially in the wake of the recent news about Netflix, as well as the rapid rise of music services, like Spotify, there's been a lot of commentary recently about how we are moving from a model of Ownership of media to Access to content. Rather than actually buying physical media that contain books, songs, movies, TV shows, etc., the new model appears to be purchasing access to them. Access can be in the form of a DRM-protected E-book or MP3, or it can be a subscription-based service like Netflix Instant or Spotify -- either way, what's been purchased is a license and not some underlying property (to which the first sale doctrine would apply). The role of sharing and lending as a way of spreading knowledge about a book or a band is, in this model, replaced by the use of social media to point your friends to its location on the service that they also use.

There has been a lot of commentary about the appeal of the Access model. For example, the cost to the consumer is less than what buying books, CDs, and DVDs now. Proponents claim that this is because rather than paying for the costs of the media, consumers pay only for the cost of the actual content. There are also practical advantages like mobility, convenience, a form of "sharing", etc., which are all legal -- and given the DMCA, decisions like Grokster and LimeWire? , and the willingness to enforce steep statutory damages on individuals, there aren't a lot of alternatives. (But, if there are, I'd love to learn more about them.)

Does anyone in the class use services like Spotify? Own a Kindle or Nook? Personally, I frequently use Grooveshark, Hulu, and the CBS.com website, and I've had access to a Netlfix Instant account that is now cancelled. And if you've thought about policy ramifications, what do you think? Are you bothered by the role of control and monitoring in this context, or at least less bothered by it than in the starker example of the mobile phones we were talking about last week?

-- BahradSokhansanj - 27 Sep 2011

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