Brian Willen, May 28, 2013
For hundreds of years, the “first sale” doctrine has been central to copyright law. It helps reconcile a fundamental tension between copyright owners’ ability to exploit their creative expressions and property owners’ right to control their own property. While copyright, as Lord Mansfield explained, is “a property in notion, and has no corporeal, tangible substance,” copyrights receive protection only when embodied in physical objects. By creating an original work, a copyright owner is given the exclusive power to authorize, among other things, the distribution of that work and its importation into the United States.
But copyrighted works are also ordinary articles of property-books, paintings, compact discs, even bottles of shampoo-whose owners normally have the right to sell or distribute such personal property as they wish. This is where the first sale doctrine comes in. Where it applies, the doctrine gives priority to the prerogatives of the owner of the physical item over those of the copyright owner. As currently codified in the Copyright Act, the rule says that the owner of a particular copy “lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy.” 17 U.S.C. § 109.
In recent years, the conflict between the rights of copyright holders and property owners has been especially acute when it comes to bringing copyrighted works into the United States for resale. Section 602 of the Copyright Act says that “importation into the United States, without the authority of the copyright owner under this title, of copies … of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies” of the work.
Relying on this provision, many copyright owners seek to maximize revenue by dividing the market for their products geographically. They sell their works to the domestic market at one price, and then distribute cheaper foreign versions that are not authorized for importation into the United States. While common, these market-segmentation arrangements exist uneasily with the principle underlying the first sale doctrine, that once a given copy of a copyrighted work has been sold, the purchaser-rather than the copyright owner-is entitled to control the next sale or distribution of that copy.
Suppose, for example, that on a trip to Japan I find a valuable recording that hasn’t been released in the United States. I buy several copies, bring them back into the United States, give a few to my friends, and sell the rest on eBay. Have I violated the Copyright Act, because I imported my copies into the United States without the permission of the copyright owner? Or am I protected from infringement claims because the first sale doctrine allows me to freely dispose of my own property?
Links to Full Content
