Abstract

http://ssrn.com/abstract=1669562
 
 

Footnotes (280)



 


 



Digital Exhaustion


Aaron Perzanowski


Case Western Reserve University School of Law

Jason Schultz


New York University School of Law


UCLA Law Review, Vol. 58
Wayne State University Law School Research Paper No. 10-10
UC Berkeley Public Law Research Paper No. 1669562

Abstract:     
As digital networks emerge as the dominant means of distributing copyrighted works, the first sale doctrine is increasingly marginalized. The limitations first sale places on the exclusive right of distribution are of little importance when the alienation and use of copies entails their reproduction. This fact of the modern copyright marketplace has led to calls for statutory clarification of digital first sale rights.

Acknowledging the obstacles to legislative intervention, this Article argues that courts are equipped today to limit copyright exclusivity in order to enable copy owners to make traditionally lawful uses of their copies, including resale through secondary markets. We argue that first sale is not simply an isolated limitation on the distribution right. Instead, it is a component of a broader principle of copyright exhaustion that emerges from early case law preceding the Supreme Court’s foundational decision in Bobbs-Merrill v. Strauss. This context reveals a common law of copyright exhaustion that embraces a set of user privileges that includes not only alienation, but renewal, repair, adaptation, and preservation. Despite congressional recognition of exhaustion in sections 109 and 117 of the Copyright Act, this Article concludes that courts have ample room to apply and continue to develop common law rules that preserve the many benefits of the first sale doctrine in the digital marketplace.

Number of Pages in PDF File: 70

Accepted Paper Series





Download This Paper

Date posted: September 1, 2010 ; Last revised: March 4, 2014

Suggested Citation

Perzanowski, Aaron and Schultz, Jason, Digital Exhaustion. UCLA Law Review, Vol. 58; Wayne State University Law School Research Paper No. 10-10; UC Berkeley Public Law Research Paper No. 1669562. Available at SSRN: http://ssrn.com/abstract=1669562

Contact Information

Aaron Perzanowski (Contact Author)
Case Western Reserve University School of Law ( email )
11075 East Boulevard
Cleveland, OH 44106-7148
United States

Jason Schultz
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
Feedback to SSRN


Paper statistics
Abstract Views: 4,197
Downloads: 582
Download Rank: 25,794
Footnotes:  280

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.359 seconds