Vol. 6 No. 1, Fall 2014; 'Fixing' the First Sale Doctrine: Adapting Copyright Law to the New Media Distribution Paradigm

This Article discusses Section 109 of the Copyright Act, the first sale doctrine, in the context of digital media and internet-based storage. Traditionally, the first sale doctrine served as an important limitation on the exclusive rights of copyright owners, allowing copies of lawfully obtained works to be resold without interference from the copyright owner. As a result of this limitation, physical media remains freely alienable after the first sale, providing secondary markets for used copies and more consumer choice. However, due to the nature of digital media and the recent market shift among media distributors, first sale doctrine has become ambiguous and inconsistently applied.

This Article argues that Section 109 of the Copyright Act should be amended to allow consumers to resell their lawfully acquired digital media. By amending the Copyright Act for the digital media age, copyright holders will benefit from the increased clarity of the extent of their rights, while consumers will benefit from greater choice and competition in the market. Alternatively, this Article argues that reinterpreting the first sale doctrine using the common law principle of copyright exhaustion is necessary to restore the balance between the ability of copyright holders to exploit their works and the ability of consumers to alienate and resell their property.