Rethinking a Digital First Sale Doctrine in a Post- Kirtsaeng World: The Case for Caution

Abstract

U.S. copyright law does not currently provide a digital first sale doctrine. But what would happen if the law were modified to allow owners of lawfully made copies of digital works to resell, loan, or otherwise dispose of them using digital file transfers? And, if such a modification were made, how would the Supreme Court’s March 2013 holding in Kirtsaeng v. John Wiley & Sons that “lawfully made under this title” in §109(a) of the Copyright Act is not geographically limited impact global digital trade in copyrighted works?

As discussed herein, while there are some good arguments in favor of introducing a digital first sale doctrine, there are concerns as well. The combination of readily identifiable problems that could arise with an overly broad expansion of the first sale doctrine and the near certainty of unintended consequences provide ample reason to proceed cautiously. To properly balance the interests of copyright holders and users, a digital first sale doctrine, if adopted, would need to be much more narrowly crafted than its counterpart in the offline world.

Keywords: first sale doctrine, digital first sale, Kirtsaeng

JEL Classification: K0