Copyright Exhaustion and the Personal Use Dilemma

77 Pages Posted: 10 Sep 2011 Last revised: 18 Aug 2016

Aaron Perzanowski

Case Western Reserve University School of Law

Jason Schultz

New York University School of Law

Date Written: September 9, 2011

Abstract

Copyright law struggles to provide a coherent framework for analyzing personal uses. Although there is widespread agreement that at least some such uses are non-infringing, the doctrinal basis for that conclusion remains unclear. In particular, the prevailing explanations of fair use and implied license are both flawed in important respects.

This Article proposes a new explanation for the favored status of certain personal uses. Drawing on the principle of copyright exhaustion - the notion that once the copyright holder parts with a particular copy of a work, its power to control the use and disposition of that copy is constrained - we argue that many personal uses are rendered lawful by virtue of the simple fact of copy ownership. Owning copies entitles consumers to make certain uses of those copies and the works embodied in them, even in ways that may appear inconsistent with the rights of copyright holders. Under exhaustion, any copy owner has the right to reproduce, modify, and distribute her copy in order to fully realize its value qua copy.

In a variety of personal use cases, courts have been swayed by arguments that highlight the defendant’s purchase or rightful ownership of a copy. But the prevailing approaches to personal use take copy ownership into account inconsistently and awkwardly, forcing courts to shoehorn their intuitions about ownership into doctrines designed to address very different questions. In contrast, exhaustion places copy ownership at the center of the digital personal use debate. And it helps us reconcile our intuitions about the proper scope of consumer control over copies they own with our formal legal articulations of the scope of infringement liability.

Suggested Citation

Perzanowski, Aaron and Schultz, Jason, Copyright Exhaustion and the Personal Use Dilemma (September 9, 2011). Minnesota Law Review, Vol. 96, 2012; UC Berkeley Public Law Research Paper No. 1925059; Wayne State University Law School Research Paper No. 11-14. Available at SSRN: https://ssrn.com/abstract=1925059

Aaron Perzanowski (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

HOME PAGE: http://www.theendofownership.com

Jason Schultz

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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