Whereas the first sale doctrine historically permitted the transfer and resale of copyrighted works, license agreements used by software companies and the DMCA's strict rules prohibiting tampering with access control devices frustrate exercise of the first sale doctrine with respect to many forms of digital works[...] This article explores the first sale doctrine as it pertains to digital works and proposes ways to make a digital first sale doctrine feasible. Part II describes the first sale doctrine as it has traditionally been applied to non-digital works. Part III discusses modern technology's impact on the distribution and use of copyrighted material. Part IV explores the means by which the first sale doctrine has grown inapplicable to digital works, addressing the use of license agreements, uncertainty as to the Copyright Act, and the DMCA provisions that render the first sale doctrine incompatible with digital works. Part V discusses the impacts on commerce resulting from frustration of the first sale doctrine. Part VI suggests technological methods to protect copyright owners' interests if a digital first sale doctrine were enacted. Part VII concludes by arguing that Congress should implement a digital first sale doctrine.
Victor F. Calaba,
Quibbles'n Bits: Making a Digital First Sale Doctrine Feasible,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol9/iss1/1