First-Sale Doctrine – How else would we afford school books?

Did you ever sell used school books? Then you took advantage of the First-Sale Doctrine. You might have taken advantage of the Doctrine in other instances, but the sale of used books is certainly a common transaction executed by most of us. On that note, if it wasn’t for the First-Sale Doctrine, you would technically not be able to sell your used books. How is that possible?

U.S. Copyright law gives the owner of the copyright exclusive rights. Specifically, under 17 U.S.C. Section 106(3): “[s]ubject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: … (3) to distribute copies or photorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; ….” In other words, only the owner of the copyrighted work can sell the copyrighted work. So how can you sell a book you never created? Say hello to the First-Sale Doctrine.

The First-Sale Doctrine is codified in 17 U.S.C. Section 109 (Limitations on exclusive rights: Effect of transfer of particular copy or phonorecord). In relevant part, Section 109(a) states “[n]otwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.” In other words, so long as you purchase a legal copy of the work, you may sell it without permission from the copyright holder. Be aware that there are limitations within Section 109 to several types of work (e.g., a computer program). But, the main concept embedded in Section 109 is known as the First-Sale Doctrine.

In recent years, few cases involving the First-Sale Doctrine reached the U.S. Supreme Court. One of the disputes involved: whether you can purchase a legal copy overseas and sell it in the U.S. without the U.S. Copyright holder’s permission? In 2013, the U.S. Supreme Court answered the question in the affirmative with justification under the First-Sale Doctrine (see Kirtsaeng v. Wiley).

Therefore, next time you sell a legally acquired school book (for example), you can joyfully thank Section 109 for the ability to freely sell it. But, take note that the First-Sale Doctrine has its limits. So, before you test the limits, or if you are not sure if you fall within the exception, contact an Intellectual Property attorney to avoid potential costly litigation.


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