Buyer Beware: The Threat to the First Sale Doctrine in the Digital Age

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The rise of digitally transmitted content such as eBooks, mp3s, and digital movies has threatened traditional notions about whether consumers actually own what they buy, and whether they will be entitled to resell or otherwise dispose of their downloaded purchases as they please. Buyers’ rights derive from the First Sale Doctrine of copyright law, which is a statutory principle that states that a copyright owner’s exclusive right to distribution of a copy of a work ends with the lawful initial transfer of that copy. Under this doctrine, any “owner of a particular copy” of a copyrighted work may freely sell or transfer that copy regardless of whether the copyright owner approves. While the doctrine has been a fixture in society for nearly a century and has helped foster everything from second-hand bookstores to eBay and is well-established with respect to tangible works, the law has not been updated to account for the rise of digitally transmitted intangible works. This article examines the first sale doctrine from a historical and contemporary perspective and looks into the future to see what legal changes are necessary to preserve this important tenet of American legal culture.

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