Fred von Lohmann at the Electronic Frontier Foundation says the answer might be yes.
Had Obama given the Queen a physical CD, he clearly would have been on solid legal ground thanks to the "first sale" doctrine, which allows people to resell or give away merchandise they've purchased. But, Lohmann writes, "because digital technology is involved here, suddenly it's a legal quagmire."Lohmann considers several scenarios, including one where Obama or a staffer purchased the music from iTunes. The first problem for the president in that case is people might not own the tracks they download. "Copyright owners have consistently argued in court that many digital products (even physical 'promo' CDs!) are 'licensed,' not 'owned,' and therefore you're not entitled to resell them or give them away," he says.
Next, copying the tracks to an iPod meant for the Queen might in itself violate the statute, because Apple says the songs can only be copied for "personal, noncommercial use."
This means that Obama would be left arguing that giving away the iPod was a "fair use" -- which might be a justifiable position, but is hardly a slam dunk given the huge variety of opinion about what constitutes fair use.
Lohmann's point isn't that Obama is potentially a scofflaw, but that the law needs to be changed. As he put it: "You know your copyright laws are broken when there is no easy answer to this question."
Law professor Eric Goldman at Santa Clara University agreed. "It's a neat little question. Can you give a gift of an iPod preloaded with music," he told Online Media Daily. "The answer should be, 'Of course he can.' The fact that it's cloudy at all is, I think, really damning about the state of copyright law."
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