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This is a very general overview for readers and authors, not an exhaustive legal discussion on the subject. If you want an exhaustive overview complete with all the legalese and laws, I suggest the articles I have links to at the bottom.

 

The First Sale Doctrine and eBooks

Marilynn Byerly

 

The First Sale Doctrine Defined:

“First Sale Doctrine refers to the right of a buyer of a material object in which a copyrighted work is embodied to resell or transfer the object itself. Ownership of copyright is distinct from ownership of the material object. Section 109 of the Copyright Act permits the owner of a particular copy or phonorecord lawfully made under the Copyright Law to sell or otherwise dispose of possession of that copy or phonorecord without the authority of the copyright owner.

 

Commonly referred to as the "first sale doctrine," this provision permits such activities as the sale of used books. The first sale doctrine is subject to limitations that permit a copyright owner to prevent the unauthorized commercial rental of computer programs and sound recordings.” US Government Publication 04-8copyright. http://www.cendi.gov/publications/04-8copyright.html

 

One of the ongoing discussions about copyrighted ebooks is whether the “first sale doctrine” can be applied to a digital book. Can a person sell a used copyrighted ebook?

Right now, the US Government as well as most other governments say no. (see iTunes White Paper link below)

Look at the US Government definition above to see one of the reasons why. First sale doctrine only applies to a “material object” like a paper book. A copyrighted digital book isn’t an object, it’s content, and content can’t be copied and, therefore, can’t be resold.

Also, copyrighted digital content like music, computer software, and ebooks aren’t technically sold, they are leased according to the licensing terms a person agrees to when they put their money down for the song, etc.

At ebook distributor sites like Fictionwise.com, the terminology “sell” and “buy” are used, but in their FAQs, they say you are only leasing an ebook, not buying the content, so you can’t resell it, etc.

The difference between “lease” and “buy” is also used as a justification of why an ebook can’t be resold.

All those who say that “first sale doctrine” applies to copyrighted ebooks are wrong from a legal perspective.

Only lawsuits, the courts, or Congress can change this, but most of the money is on the side of the copyright leasers -- the publishers, music and movie companies, etc., so I doubt “first sale doctrine” will ever apply to copyrighted ebooks.

 

RECOMMENDED RESOURCES

Amazon Kindle and Sony Reader Locked Up: Why Your Books Are No Longer Yours, Columbia Science and Technology Law Review. Explores the various issues of sale versus license, first sale doctrine, etc.

http://www.stlr.org/2008/03/amazon-kindle-and-sony-reader-locked-up-why-your-books-are-no-longer-yours/

 

iTunes White Paper. The last sections explain various governments’ stances on first sale doctrine issues.

http://cyber.law.harvard.edu/media/uploads/81/iTunesWhitePaper0604.pdf

 

US Government Publication 04-8copyright. Copyright, as well as “first sale” and “fair use,” defined and explained.

http://www.cendi.gov/publications/04-8copyright.html

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