Copyright Exhaustion and the Personal Use Dilemma

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Today’s digital consumer makes a lot of copies. Consider the purchase of the latest Lil’ B or Wye Oak CD. Transferring that CD onto a laptop creates at least one copy. Back up your hard drive, and a second copy now exists. Put the music files on your iPod, and you now have a third copy on your hands. Upload it to a music locker service, like those offered by Amazon and Google, and you have initiated the creation of not only one but likely dozens or even hundreds of copies. Listen to that music on your phone, your work computer, or a friend’s laptop and potentially even more copies are spawned into existence.

Yet despite the ubiquity of such personal copying, its legal status is unclear. Copyright owners — while admitting that at least some personal use is lawful — also suggest that it sometimes implicates their exclusive rights to reproduce, distribute, and create derivative works. Consumers, their advocates, and third-party facilitators of personal use maintain that these uses and the technologies that enable them are perfectly lawful. Public opinion has generally embraced the notion that consumers are entitled to make personal use of their copies, particularly when that use is noncommercial.

As pressure builds to determine the legality of various personal uses and the technologies they depend upon, courts will have to sort out the proper doctrinal framework if they are to preserve the benefits of personal use without undermining copyright’s core incentive structures.

This Article addresses this growing dilemma, providing both a defense of the normative justifications favoring personal use and a stronger doctrinal justification for its preservation in a networked copyright economy. Our approach focuses on the unique entitlement to make use of a protected work that flows from ownership of a lawful copy of that work. In short, consumers who buy copies should be able to fully utilize them for personal activities and then lawfully alienate them, just as they would with any other piece of personal property. When it comes to consumer purchases, we argue that courts should be mindful of these interests and use the doctrine of copyright exhaustion as an additional, and preferred, approach to resolving personal use cases.


Work published when author not on University of Michigan Faculty.