Framing the First Sale Doctrine

Long-standing Supreme Court and other precedent, as well as the Copyright Act, have allowed purchasers of copyrighted materials to resell or otherwise transfer such copyrighted materials as they saw fit under the first sale doctrine. The concept of the first sale doctrine is simple: once a person has lawfully acquired a copy of a copyrighted work — either by purchase or gift — then the person “owns” that copy and may do with it what he or she wants, such as lend it, sell it, gift it or even make a copy for personal use (they may not, however, make a copy and sell the copy — that’s still copyright infringement).

However, two cases recently decided by the Ninth Circuit U.S. Court of Appeals may be redefining the boundaries of what purchasers of copyrighted material may do with that material. Together, the cases address whether a party really “owns” — or merely “licenses” — copyrighted material in its possession. The new rule set forth in these decisions will likely raise future questions and may lead to ever more challenging decisions in future cases.

‘Vernor v. Autodesk’