Reconciling Intellectual and Personal Property

This Article builds on our earlier work on exhaustion. We have previously emphasized the common law origins of copyright exhaustion, arguing for a judicial interpretation that is more expansive than the narrow statutory first sale rule. Subsequently, we have advocated increased reliance on exhaustion to resolve a range of disputes over personal use by consumers that are typically analyzed through the lenses of fair use and implied license. And, most recently, we have outlined two competing legislative frameworks for a contemporary exhaustion regime as a part of the broader copyright reform effort.

This Article examines both the forces undermining copy ownership and the important functions it serves within the copyright system in order to construct a workable notion of consumer property rights in digital media.