Defining the First Sale Doctrine in the Digital Age

January 7, 2013

First Sale DoctrineThe “First Sale Doctrine” is an important concept in copyright law which provides rights of use and control to legitimate purchasers of copyright protected materials.  Currently, two federal court cases which could substantially restrict that doctrine in the global, digital environment are in progress.

When a buyer legitimately purchases a product protected by copyright (a book, for example) the First Sale Doctrine grants that buyer a set of rights regarding control and use of the purchased product.  The buyer has the authority to sell, lend, or give away the legitimately purchased product.

Under the First Sale Doctrine, a buyer does not acquire the copyright associated with the work, however, the buyer does acquire a range of ownership rights as to the single copy of the work which was purchased.  This grant of rights of use and control to the buyer is an important aspect of copyright law.

In the case, Kirtsaeng v. Wiley & Sons, the United States Supreme Court is considering a significant potential limitation to the First Sale Doctrine.  At issue in this case is the applicability of the First Sale Doctrine to educational textbooks printed outside of the U.S. and sold in the U.S.  The Court has been asked to limit application of the First Sale Doctrine only to copyright protected material created in the United States.

A federal district court in New Yorkis also presently considering potential restrictions on applicability of the First Sale Doctrine.  In Capitol v. ReDigi, the court has been asked to assert that the First Sale Doctrine is not applicable to products in electronic format.  At issue in this case is the re-sale of digital content purchased through the Apple iTunes system.

The First Sale Doctrine is a critically important source of rights for users of copyright protected material.  The Doctrine is well-established and has been readily accommodated by copyright law for many years.

The two pending cases pose a significant potential threat to the rights of consumers.  If the federal courts restrict the international and digital scope of the First Sale Doctrine, buyers of copyrighted products will lose important rights of use.

In the global digital environment, the First Sale Doctrine is even more important to consumers than it was in the traditional marketplace.  The vital rights granted to consumers by the First Sale Doctrine should not be contingent upon the geographic source or the format of the purchased products.