First Sale Doctrine

The first sale doctrine provides users of products to lend out or copyrighted works if he or she feels it necessary and useful to do so. 

First Sale: The Basics

The first sale doctrine provides that someone buying a legally produced work that is copyrighted may be able to sell or dispose of the work if he or she believes it to be the best thing to do. For example, if a person purchases a book, first sale lets you have the right to lend the book to a friend.

The first sale doctrine was ratified at the same time as a number of copyrighted products were made tangible. It made it difficult to reproduce these products in large quantities. Owners lobbied Congress for laws that challenged directly or indirectly the first sale doctrine since the onslaught of digital products.

The First Sale Doctrine Is a Narrow Rule

The first sale doctrine is limited and can be applied to certain copy. No rights are provided regarding the original work. The Copyright Act of 1976 exception aside, the proprietor is not allowed to publish or reproduce without an author’s permission.

One example of the first sale doctrine is a person who owns a book of copyrighted artwork cannot detach the prints and frame or sell them.

It only pertains to the owner of the product, not the person who has the property without ownership. A video store that legally purchased a copy of a movie, for instance, may lend the copy of the movie to a customer. The customer, by law, is not allowed to lend that copy to someone else since the store has the only rights to lend it.

Exceptions to the First Sale Doctrine

Renting computer programs and sound recordings is not allowed thanks to the lobbying by the music and computer industries. An exception for sound recordings is only for musical products, not audiobooks.

In the first sale doctrine, the destruction of photographs or fine art that meet the Visual Artists Rights Act requirements are not allowed.

Goods Made Overseas

No geographic limits are on the first sale doctrine, which was decided by the U.S. Supreme Court in 2013. A case in which a Thai student that came to the United States to study went into business selling books that were purchased by his family in Thailand.

The family then sent the books purchased from Thailand for a low price, while the student sold them at an upcharge. U.S. publishers, stating that the first sale doctrine was not applied to gray market goods, sued that student. This includes lawfully made products that are imported to the United States.

In this case, the Supreme Court did not agree with the United States publishers and ruled for the Thai student. They said that the copies were lawfully made with permission of the copyright holder. No requirement was needed for the books to be produced in the United States. Therefore, the student can use the first sale doctrine to do anything with his or her own copy of the book, even though he does not own the copyright.

Implications

There is a lower risk of liability faced by companies that manufacture or import any product that included copyrighted works. The Court said that following made in other countries have copyright software:

  • mobile phones
  • tablets
  • computers
  • vehicles

The decision abolished the exposure for the import and distribution without permission

The Future of the First Sale Doctrine

The Software and Information Industry Association believes that exploiting pricing points that are designed for students in other nations will pressure the publisher’s ability to business in other countries.

The adoption of new strategies from publishers to respond to profit loss stemming from copyright infringement through resale is a very real issue. The Supreme Court decision can have significant effects on other industries.

Burden of Proof in Infringement Actions

An offender will have the knowledge about how he or she came into possession to the copy and should have the burden of giving this evidence in court. In order to determine if the offender is allowed the privilege established by section 109(a) and (b). They also have the burden of proof of proving if a certain copy was legally made or gained should be on the part of the offender.

If you need help learning more about the first sale of doctrine, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.