A Comparative Review of the First Sale Doctrine of Digital Works

2021 ◽  
Vol 22 ◽  
pp. 51-87
Author(s):  
Kyung-Sook Kim
Keyword(s):  
Comparative Review ◽  
First Sale ◽  
First Sale Doctrine

scholarly journals The First Sale Doctrine and the Economics of Post-Sale Restraints

2016 ◽  
Author(s):  
Ariel Katz
Keyword(s):  
Intellectual Property ◽  
Vertical Integration ◽  
Common Law ◽  
User Innovation ◽  
Opting Out ◽  
Opt Out ◽  
Production And Distribution ◽  
First Sale ◽  
First Sale Doctrine

The first sale doctrine limits the exclusive rights that survive the initial authorized sale of an item protected by intellectual property (IP) rights, and therefore limits the ability of IP owners to impose post-sale restraints on the distribution or use of items embodying their IP. While the doctrine has deep common law and statutory roots, its exact rationale and scope have never been fully explored and articulated. As a result, the law remains somewhat unsettled, in particular with respect to the ability of IP owners to opt-out of the doctrine and with respect to the applicability of the doctrine to situations of parallel importation.This Article provides answers to these unsettled issues. By applying insights from the economics of post-sale restraints, the Article shows that the main benefits of post-sale restraints involve situations of imperfect vertical integration between coproducing or collaborating firms, which occur during the production and distribution phases or shortly thereafter. In such situations, opting out of the first sale doctrine should be permitted. Beyond such limited circumstances, however, the first sale doctrine promotes important social and economic goals: it promotes efficient long-term use and preservation of goods embodying IP and facilitates user-innovation. Therefore, contrary to some other views, I conclude that the economics of post-sale restraints confirm the validity and support the continued vitality of the first sale doctrine.

Resale Markets for Digital Music

2021 ◽  
Author(s):  
Aaron Perzanowski
Keyword(s):  
Legal Status ◽  
Digital Music ◽  
Secondary Markets ◽  
Legal Principles ◽  
Streaming Services ◽  
First Sale ◽  
First Sale Doctrine

This chapter considers the ways in which the shift to digital distribution of copyrighted works alters the legal status of secondary markets for music. For centuries, the principle of exhaustion and the first sale doctrine have permitted owners of copies to resell or otherwise transfer their purchases. In a market largely defined by licensed digital downloads and streaming services, the application of those legal principles is uncertain. As a threshold matter, consumers may not count as owners for first sale purposes. Moreover, the transfer of digital files may entail acts of reproduction beyond the scope of the statutory first sale doctrine.

scholarly journals Controlled Digital Lending

2020 ◽  
pp. 157-165
Author(s):  
Brandon Board ◽  
Karl Stutzman
Keyword(s):  
Fair Use ◽  
Print Books ◽  
Electronic Copy ◽  
First Sale ◽  
First Sale Doctrine

Controlled digital lending is an intriguing model for libraries to make books available digitally. Building on fair use and the first sale doctrine, libraries digitize their print books, put the print books in dark storage, and lend one electronic copy for each print copy on a platform that prevents users from copying or redistributing electronic versions. The concept empowers libraries to digitize in-copyright books when there are no alternatives available in the e-book licensing market. AMBS Library experimented with a small pilot controlled digital lending collection using Internet Archive’s established digitization and controlled digital lending services. This session reported on the results of that experiment.

First Sale or Exhaustion Doctrine

2017 ◽  
Author(s):  
Pascale Chapdelaine
Keyword(s):  
Great Part ◽  
Technological Environment ◽  
Property Theory ◽  
Personal Property ◽  
Other Information ◽  
Information Products ◽  
First Sale ◽  
First Sale Doctrine

This chapter describes how courts and lawmakers struggle with concepts of tangibility and intangibility as they apply the first sale or exhaustion doctrine to new technological environments. The difficulty of applying the exhaustion or first sale doctrine to digital works relates in great part to the difficulties of adapting traditional concepts of personal property, goods, services, sales, and licences to copies of copyright works and other information products, in an ever-changing technological environment (identified in Chapter 4). After looking at the main theoretical justifications of the first sale or exhaustion doctrine, and concluding that the property theory is the most plausible explanation of the first sale doctrine, the chapter questions the extent to which the doctrine of exhaustion or first sale will remain relevant as users increasingly experience copyright works through services and decreasingly through individualized copies.

scholarly journals Why License Agreements Do Not Control Copy Ownership: First Sales and Essential Copies

2018 ◽  
Author(s):  
Brian W. Carver
Keyword(s):  
Supreme Court ◽  
Bargaining Power ◽  
Analytic Approach ◽  
Court Cases ◽  
Federal Policies ◽  
License Agreements ◽  
The Supreme Court ◽  
Simple Question ◽  
First Sale ◽  
First Sale Doctrine

In this paper I argue for an analytic approach that courts should employ when determining ownership of a tangible copy of a copyrighted work. Courts are surprisingly divided on this apparently simple question, as I will detail several distinct and conflicting approaches, sometimes adopted within the same Circuit. I argue that a correct approach to determining copy ownership must be logically correct, must respect precedent, and must respect congressional choices. To be logically correct, a court's approach must not equivocate with respect to the ambiguously used term "license" and must not conflate ownership of a copy with ownership of a copyright. It also must not look to factors that are wholly orthogonal to resolving the issue. To respect precedent, a court's approach must consider the lessons of the few relevant Supreme Court cases – which are now rarely cited at all – and should not needlessly create Circuit conflicts. These precedents suggest that the Supreme Court is hostile to boilerplate attempts to use contract to thwart the first sale doctrine and has repeatedly rejected contract restrictions that attempt to expand the monopoly granted by Congress beyond its intended scope. To respect congressional choices, a court's approach should recognize how the careful enumeration of a copyright owner's rights in 17 U.S.C. § 106 and the limitations on and exceptions to those rights in sections 107 through 122 act together to create federal policies, embodied in the Copyright Act, that achieve the purposes and objectives of Congress. Once these sections and their interaction are properly understood, courts must at least ask whether the enforcement of un-negotiated contracts of adhesion between parties of unequal bargaining power is statutorily or constitutionally preempted. In presenting the approaches taken by courts and in arguing for a correct approach I will conclude that a right to perpetual possession of a copy is the primary, if not the dispositive factor, in correctly determining copy ownership. I conclude by applying this approach to the facts of MDY Industries LLC v. Blizzard Entertainment, Inc. in order to illustrate why the district court's holding on copy ownership was erroneous.Suggested Citation: Brian W. Carver, Why License Agreements Do Not Control Copy Ownership: First Sales and Essential Copies, 25 Berkeley Tech. L.J. 1887 (2010).

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