The post-sale market in copyrighted works, so vital to any copyright regime aimed at securing the widest possible dissemination of material, has been sharply curtailed. The proliferation of mass-market licenses reserving title in the copyright holder has placed an ever-increasing number of works outside the protective reach of § 109 of the Copyright Act (the first sale doctrine, which protects the property rights of alienation and trade by extinguishing the copyright holder’s right to control further dissemination of his work following a lawful “first sale”). Even when a consumer manages to acquire lawful ownership of a copy of copyrighted work, § 109(b), which exempts certain categories of works from the first sale privilege, might forbid him to lend it to another. Worse still, he might be denied access to the copy by technological protection measures, the circumvention of which is forbidden under § 1201 of the Copyright Act. Even if he were to lawfully acquire both access and ownership, §109 would not permit him to distribute or display his copy over the Internet because digital transmissions involve the unauthorized creation and distribution of a second-generation copy.
Striving to restore potency to the first sale doctrine and to avert copyright dystopia, this paper proposes three amendments to § 109. Proposed §§ 109(f) and 109(g) are the twin provisions of a digital first sale doctrine that authorizes the digital transmission of copyrighted works. These proposed sections should be incorporated into the existing Copyright Act once the appropriate automated copyright management system technology becomes widely commercially available. Proposed § 109(h), the proprietary right of access provision, would resolve the paradox of ownership without access but its present enactment would be premature.
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