The real issue is the circumvention of the first sale doctrine. Before the download era, licenses were mostly attached to physical media that could be given, resold, or loaned out. By eliminating the physical artifact, modern content companies are exploiting a loophole in consumers’ traditional resale rights.
It's not really a loophole: you can't sell a digital copy because without a physical medium you can't sell _your_ copy. You could take money, and then transmit the bytes that make up the thing you bought to someone in exchange, but those bytes are copies of your version, they are not themselves the original.
Could you put your file on a harddisk and sell that? Again, no, because writing it to disk _creates a new copy_, so now you're violating copyright.
There's actually pretty solid legal argument for first doctrine not applying to digital media.
However, things get more interesting when you're selling your _license_ or your _access_ to some content. For example, can you sell your entire account to someone else, so that they now have access to what you no longer have access to? Depending on where you live: yes, you can.
> There's actually pretty solid legal argument for first doctrine not applying to digital media.
Of course there is. When someone uses a loophole, they’re doing something legal to get an unintended or nonobvious benefit— If an activity isn’t legal, it isn’t a using a loophole: it’s just fraudulent / criminal behavior.
The net effect of moving from producer-supplied media to consumer-supplied media has (among other things) resulted in a de facto curtailment of historical consumers’ rights, despite nobody doing anything illegal. The original drafters of copyright simply didn’t envision a world where products would be regularly delivered in a form that couldn’t be physically separated from the purchaser’s other posessions.
The original drafters of copyright have not been relevant to copyright law for an incredibly long time: we've revised it so many times that unless you want to invoke the most recent judges and lawyers involved, this argument has nothing to do with actual reality.
How is this different from a band performing exclusively live to people who buy tickets and actively disallowing recordings? Or what about a Broadway show that doesn't have a recording?
Should we force all performers to make their content available to buy to anyone across the world? I'm not necessarily against this, but it would be quite a big change.
In Audible’s case, they’re already selling access to a recording in perpetuity; your examples are all live performances. There’s a colorable distinction here, and there’s no need to force people to make recordings if they don’t want to.
A harder question is where the line between these two regimes should be: movie theaters and television stations are generally treated like performances despite showing recorded content. Netflix acts like a rental company: when you drop your subscription, you lose access to their library.
Well, stretching the analogy a bit, a lawyer could argue that Netflix's act of streaming a piece of content is a live performance - you're not paying for the video, but rather to access this "Netflix theatre".
>Or what about a Broadway show that doesn't have a recording?
I was lamenting (in the context of Hamilton) that relatively few Broadway shows--or, really, theater of any kind--have video versions available, even straightforward one or two camera versions.
I expect it's mostly some combination of rights and a desire not to diminish the somewhat exclusive nature of live theater. The main exception I can think of is opera mostly because of The Met Live in HD although there are a few others like The Globe (of course, Shakespeare's plays aren't under copyright).
I suppose the problem is that digital products don’t degrade. Buying a used DVD for example is a choice to save some money for a product that’s worn. Lending is an interesting one though.
