The document discusses copyright exhaustion, or the "first sale" doctrine, which allows the owner of a physical copy of a copyrighted work to resell that copy without permission from the copyright holder. The summary discusses the key aspects and history of this doctrine, important court cases that have shaped its application to digital works, and debates around its rationale and limitations.

1. Understanding Copyright’s
Exhaustion Doctrine
Fred von Lohmann
Senior Staff Attorney
©@300
April 10, 2010
1

2. “First Sale”
2

3. © Exhaustion
3

4. “That nine copies of each book or books, upon the best
paper ... shall ... be delivered ... for the use of the royal
library, the libraries of the universities ... for the use of
the aforesaid libraries”
Statute of Anne (1710)
4

5. “Whenever he parts with that ownership, the ordinary
incident of alienation attaches to the particular copy
parted with, in favor of the transferee, and he cannot be
deprived of it. This latter incident supersedes the other,
swallows it up, so to speak...”
Henry Bill Publ’g Co. v. Smythe (1886)
5

6. § 109(a)
§ 109(c)
§ 117(a)(1)
§ 117(a)(2)
6

7. UMG v. Augusto
558 F. Supp.2d 1055 (C.D. Cal. 2008)
Vernor v. AutoDesk
2009 WL 3187613 (W.D. Wash. 2009)
MDY v. Blizzard
2008 WL 2757357 (D. Az. 2008)
iPhone jailbreaking
2009 Triennial DMCA Rulemaking
7

8. trigger?
default or mandatory rule?
8

9. why exhaustion?
9

10. Objections:
freedom of contract
perfect property and efficiency
price discrimination
10

11. information costs
secondary markets
preservation
rights in personal property
decentralize access
11

12. right of private use?
user innovation?
© border w/ contract?
traditional contour?
12

13. cf. contract
13