Introducing First Sale Doctrine

Whether we realize it or not, we've all likely made use of the First Sale Doctrine.  In simple terms the First Sale Doctrine is what makes it legal for us to resell objects without permission from or making payments to whomever owns the copyright (sales after the "first sale").  This copyright limitation is why it is legal for students to sell their used text books, families to hold tag sales, and for libraries to lend books and other media.  Long story short, the First Sale Doctrine is a Big Deal.

This Big Deal is also under threat, which is sadly nothing new.  We regularly encounter digital purchases where the product is licensed, not bought.  Ebooks can be removed from your e-reader, or removed from your account, or you can have access to your ebook account taken away.  You cannot properly lend a favorite ebook to a friend, though at least you will always get the book back (note: I am aware of websites to facilitate lending of ebooks, but even those that work within the parameters of LendMe or Kindle Lending Library have faced legal challenge).

Of particular interest right now are two court cases, Kirtsaeng v Wiley & Sons and Capitol Records v ReDigi.

In Kirtsaeng v Wiley & Sons the defendant purchased textbooks at a cheaper price in his home country and resold them in the US using the proceeds to pay his college tuition.  The case has escalated to higher levels of appeals, with a resolution to the current round expected in June.

"Defenders of Wiley’s position are quick to denounce those concerns as overblown. It's curious, then, that Wiley’s own lawyer, former Solicitor General Ted Olson, was hard-pressed to explain why. Justice Breyer asked about specific examples — buying a book overseas to give to your wife in the U.S., or reselling a Toyota manufactured in Japan with numerous individually copyrighted components — and  did not seem impressed with the answers he got. And when Justices Breyer, Sotomayor, and Roberts questioned Olson about the "parade of horribles," raised by Kirtsaeng and supporting amici (including EFF), he asserted that, yes, indeed, sales of foreign made goods might require approval from the copyright holder, whether the seller is a Toyota distributor or a university library."

The Association of American Publishers' statement on the case says that the case will not effect library lending:
"No. This is one of the biggest misconceptions about this case. Libraries have continued to buy and lend books for over three decades under US copyright law without any interference from publishers, notwithstanding these exclusive rights of copyright owners. Since publishers are simply asking the court to uphold their rights under existing law, libraries’ longstanding practices will remain unchanged."

However the fear most of us have isn't that the purpose of the case is to target library lending or tag sales, the fear is the precedent this may create and the potential avenues of attack against perceived abuse of the First Sale Doctrine.  The AAP states that Wiley is simply looking for "the court to uphold their rights under existing law," but the whole issue here is in fact what the letter of the law is in this case.  The First Sale Doctrine does not specify geographic location of the copyright.  My personal knee-jerk reaction is to wonder why this doesn't fall under import/export or international trade, but I don't have enough knowledge of international trade law to know how valid that reaction is.

The ReDigi case deals with the reselling of mp3's, and is quite interesting (also here).  The premise of ReDigi as a service is to facilitate the resale of legally acquired MP3s, the process of which uploads files from a seller while deleting it from their hard drive.  The argument against ReDigi largely centers on the definition of file transfers, whether a file transfer can be viewed as a transfer of the original or as a copy and deletion of the original, as well as a claim that the record label has exclusive rights to all digital creation, reproduction, and sales of the relevant licensed works.  The decision does have immediate implications as to the applicability of First Sale Doctrine in regards to the currently fuzzy realm of ownership of digital files.  The First Sale Doctrine has been the subject of court cases in the past, including over the right of stores to sell used books, and it will be again in the future.  The fact that we can resell our CDs and books is a direct result of court decisions, so I'm continuing to root for this Big Deal to come out on top.

Additional reading:
EFF - First Sale Doctrine Under Siege - on the two court cases by EFF with links to other sources
US Copyright Law - Title 17 in its entirety
Copyright (Wikipedia) - this is a good overview of Copyright, and is reasonable cited.


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