Legislating Digital Exhaustion

19 Pages Posted: 2 Aug 2014

See all articles by Aaron Perzanowski

Aaron Perzanowski

University of Michigan Law School

Jason Schultz

New York University School of Law

Date Written: July 31, 2014


The digital shift in distribution, from markets premised on disposing of physical artifacts to markets defined by data flows, is among the most important changes in the copyright landscape since the enactment of the 1976 Copyright Act. The disconnect between this new reality and our current statutory rules is particularly evident when it comes to the question of exhaustion. The first sale doctrine embodied within Section 109 was constructed around a mode of dispossession that is rapidly becoming obsolete. As a result, the benefits and functions it has long served in the copyright system are at risk. Building on our earlier work, this Article will argue that a meaningful exhaustion doctrine should survive the digital transition. After explaining the two primary hurdles to digital exhaustion under the existing statutory regime, we outline two possible approaches to legislating digital exhaustion, concluding that a flexible standards-based approach that vests considerable authority with the courts is the better solution.

Suggested Citation

Perzanowski, Aaron and Schultz, Jason, Legislating Digital Exhaustion (July 31, 2014). Berkeley Technology Law Journal, Forthcoming, NYLS Legal Studies Research Paper No. 13/14 #85, Case Legal Studies Research Paper No. 2014-26, Available at SSRN: https://ssrn.com/abstract=2474635

Aaron Perzanowski (Contact Author)

University of Michigan Law School ( email )

United States

Jason Schultz

New York University School of Law ( email )

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

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