One of the exclusive rights that belong to a copyright owner is the right to distribute their work to the public. This means that only the owner can sell, lend, lease, rent or give away copies of their work. If that sounds counter-intuitive, it is because this right is significantly limited by the first sale doctrine. This doctrine, codified at 17 U.S.C. § 109 allows the owner of a legally obtained copyrighted work to sell, lease, destroy, give away or otherwise dispose of their particular copy of the work. This is the reason you can sell your used books on Amazon or get rid of artwork, jewelry, sculptures, etc. at a yard sale. The owner of a copyright cannot prevent you from selling a copy of their work that you legally obtained and vice versa; anyone purchasing your copyrighted work is allowed to resell it if they so choose. But you do not have carte blanche to do whatever you'd like with an item once you purchase it, there are some restrictions.
Only the Distribution Right is Limited
The biggest caveat when applying the first sale doctrine is that it only limits the distribution right; It does not affect the other exclusive rights of a copyright owner. For instance, first sale does not give anyone the right to make reproductions of a copyrighted work and sell those. The first sale statute mentions multiple times that the doctrine only applies to the particular copy that has been legally obtained. On its face, additional copies are not contemplated by the first sale statute. So, you can sell your used textbooks - no problem - but you cannot make a copies from the textbook and sell those as this would run afoul of the reproduction right.
Additionally, making alterations to a copyrighted work and then distributing it to the public can also be problematic. If a purchaser of a copyrighted work makes too many changes, they may end up with a derivative work which could be infringing. The first sale doctrine does not allow anyone to create unauthorized derivative works. Currently, there is a circuit split related to what sort of changes may be made to a copyrighted item before an infringing derivative is created which is discussed in greater detail here and in the Licensed Fabric section of my book.
Generally, No First Sale for Digital Items
Another limitation to the first sale doctrine is its applicability only to tangible products as digital creations generally cannot be re-sold via the first sale doctrine. Remember, first sale only allows the owner of an item to resell their particular copy. If a purchaser of a digital item were to try and re-sell it, there is almost always going to be an unauthorized reproduction made, which would not be excused by the first sale doctrine.
For example, if you were to purchase a set of digital graphics, you would first have to download the graphics, which creates a copy stored on your local computer drive. If you then tried to re-sell the graphics there is really no way to do that without making another copy short of handing over your entire computer. Methods such as attaching the graphics to an email, uploading them to the cloud or putting them on a jump drive all create an additional copy. It does not matter whether you delete your original copy; the fact that you reproduced the graphic without permission in the first place is what runs afoul of the Copyright Act.
This is also true for digital music files. For instance, in Capital Records, LLC v. ReDigi, Inc., ReDigi created a platform where users could sell digital music they purchased on iTunes. They were sued in short form by Capital Music Group which claimed that, by allowing resale of digital music, ReDigi was infringing on its rights of reproduction and distribution. ReDigi claimed that its “Music Manager” system deleted the user’s copy of the music as it uploaded so that no infringing reproduction was created. But, the Court did not accept this defense and found that, because the digital music was sent from one physical location (user’s computer) to another (ReDigi’s cloud), an infringing reproduction was created. [1]
You Have to Actually Own the Item
In order to invoke the first sale doctrine, you also must actually own the item you are attempting to sell. This makes sense, right? If you rent a car, you can't put it on Craigslist and sell it - it's not actually yours. In the same way, with some items like most software, if you read the wee, small print, you don’t actually own it, you’re leasing it. The first sale doctrine “does not apply to a person who possesses a copy of the copyrighted work without owning it, such as a licensee.” [2]
[1] Capitol Records, LLC v. ReDigi Inc., 910 F.3d 649, 655-660 (2d Cir. 2018).
[2] Vernor v. Autodesk, 621 F.3d 1102, 1107 (9th Cir. 2010).
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