Exhausted yet? A 15-minute crash course in the First Sale Doctrine Eric Harbeson Music Library Association 26 February, 2015

Origins of the Doctrine Bobbs-Merrill Co. v. Straus 210 U.S. 339 (1908), found that the right to vend does not extend to the right, after sale of a book at retail, to restrict future sales of a book at retail after a sale. Even then, contracts were an important consideration. The lack of “privity of contract” was a necessary element of the ruling. Codified in the Copyright Act of 1976 in 17 U.S.C. Sec. 109 (taking effect Jan. 1, 1978) Other countries have similar doctrines (often called “exhaustion”)

Quick reminder The five exclusive rights (Sec. 106) Reproduce the work Prepare derivatives of the work Distribute copies of the work Perform the work publicly Display the work publicly

First Sale Doctrine in Brief Sec. 106(3): Exclusive right to distribute copyrighted works by sale or transfer of ownership, or by rental, lease, or lending Sec. 109(a): Owner of a particular copy is entitled to distribute that copy Sec. 106(5): Exclusive right to display copyrighted works publicly Sec. 109(c): Owner of a copy is entitled to display the work to people in the same physical place as the copy.

Complications Restored copyrights Section 104A restored copyright in some foreign works that: Under copyright in source country, AND Have at least one author domiciled in the source country, AND Are PD in the US because of: Non-compliance with formalities (notice, renewal, manufacturing requirements) Pre-1972 sound recordings, or Lack of national eligibility

Complications Restored copyrights First sale doctrine is limited with respect to restored works Copies made before Jan. 1, 1996 may not be lent, leased, rented for direct or indirect commercial advantage Direct advantage: e.g., Collect rental fees Indirect advantage: e.g., Avoid paying rental fees, gain revenue indirectly (donations, in-kind benefits, tangential sales)

Complications Restored copyrights First sale doctrine is limited with respect to restored works Important consideration for works that are rental only (e.g., Colas Breugnon) Copies may still be sold or otherwise disposed of Fair use still available

Complications Sound recordings and computer programs Rental, lease, lending not permitted for direct or indirect commercial advantage Rental, lease, lending of sound recordings is permitted for nonprofit libraries or nonprofit educational institutions, for nonprofit purposes Lending (but not rental or lease) of computer programs is permitted by nonprofit libraries for nonprofit purposes, when prescribed notice is displayed on packaging

Complications Notice: Warning of Copyright Restrictions The copyright law of the United States (title 17, United States Code) governs the reproduction, distribution, adaptation, public performance, and public display of copyrighted material. Under certain conditions specified in law, nonprofit libraries are authorized to lend, lease, or rent copies of computer programs to patrons on a nonprofit basis and for nonprofit purposes. Any person who makes an unauthorized copy or adaptation of the computer program, or redistributes the loan copy, or publicly performs or displays the computer program, except as permitted by title 17 of the United States Code, may be liable for copyright infringement. This institution reserves the right to refuse to fulfill a loan request if, in its judgement, fulfillment of the request would lead to violation of the copyright law. See 37 C.F.R

Other considerations Must be lawfully made copy May be manufactured or sold overseas “First sale” must still be valid under Title 17 Applies only to owners of the copy (or their authorized agents) Renters, borrowers have no rights under Sec. 109 Where title is unclear, so are rights under Sec. 109

“Digital First Sale” Sec. 109 already applies to works in digital format by default, but: Sec. 109 rights may be removed by contract Copyright owner specifies the license Copyright owner significantly restricts the user’s ability to transfer the material Copyright owner significantly restricts use (Vernor v. Autodesk 555 F. Supp. 2d 1164) Sec. 109 doesn’t affect the exclusive right to reproduce the work Most digital distribution requires reproduction of the work Sec. 109 applies where no unauthorized reproductions are involved, and there are no contracts restricting use.

Thank You Questions? Comments? Eric Harbeson (303)