Meet the Unavoidable – The Challenges of Digital Second-Hand Marketplaces to the Doctrine of Exhaustion

In: Taina Pihlajarinne - Juha Vesala - Olli Honkkila (Ed.): Online Distribution of Content in the EU, Edward Elgar, Cheltenham, 2019: p. 62-78.

12 Pages Posted: 25 Jul 2018 Last revised: 1 Sep 2019

See all articles by Péter Mezei

Péter Mezei

Institute of Comparative Law and Legal Theory

Date Written: June 4, 2018

Abstract

Problems associated with the doctrine of exhaustion have grown concurrently with the emergence of digital technologies, in particular with development of the internet. The question as to whether the doctrine of exhaustion is applicable to digital files has become pressing since shortly after protected subject-matter (especially software, audio and audiovisual content, e-books) has been predominantly (or at least significantly) sold online. This dilemma challenges the pre-existing set of economic rights, freedom to provide services, free movement of goods, as well as the traditional business models of the copyright industry. Courts have faced legal disputes more often following the Millennium, and undoubtedly disputes surrounding the idea of digital exhaustion are far from over.

The paper summarizes the key elements of the UsedSoft and the ReDigi rulings, and it collects the pros and cons regarding possible introduction of a digital exhaustion doctrine. I argue that the traditional positivist approach is a dead end, whereas a constructive realistic approach can convincingly serve as the basis for application of the doctrine in the digital age.

Keywords: Digital Exhaustion, Online Resales, Second-hand Marketplaces, First Sale Doctrine, CJEU, UsedSoft, ReDigi

JEL Classification: O34, K11, K19, K33, K41, K42

Suggested Citation

Mezei, Péter, Meet the Unavoidable – The Challenges of Digital Second-Hand Marketplaces to the Doctrine of Exhaustion (June 4, 2018). In: Taina Pihlajarinne - Juha Vesala - Olli Honkkila (Ed.): Online Distribution of Content in the EU, Edward Elgar, Cheltenham, 2019: p. 62-78.. Available at SSRN: https://ssrn.com/abstract=3208026 or http://dx.doi.org/10.2139/ssrn.3208026

Péter Mezei (Contact Author)

Institute of Comparative Law and Legal Theory ( email )

Bocskai u. 10-12.
Szeged, H-6721
Hungary
+36-62-546-735 (Phone)

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