The first sale doctrine has been on my mind recently. It all began with the Supreme Court ruling in Costco v. Omega and ended with a paperback novel I’ve been reading.
The first sale doctrine is codified in 17 U.S. C. §109. It is also called the doctrine of exhaustion, because under this rule, the copyright holder’s right of distribution is exhausted after the first sale. This is the law that allows a library to lend materials; allows me to buy a book, read it, and pass it on to my father; and allows my neighbor to sell his vinyl record collection of cheesy 1980s hits at Half Price Books.
The issue in Costco was the application of the first sale doctrine to copies not made in the U.S. The Ninth Circuit had decided that the doctrine only applies to copies made in the U.S. and to copies made abroad and sold in the U.S. with the rights holder’s permission. Citing the many problems this decision was likely to cause libraries, the Library Copyright Alliance had argued against this interpretation in an amicus brief when the case went to the Supreme Court. However, in a 4-4 decision, the Court (with Justice Kagan abstaining) let the lower court ruling stand.
In a recent blog post, Kenny Crews has ably discussed some of the likely ramifications, given the amount of material we buy overseas or that may be manufactured overseas. He concludes that libraries are unlikely to have problems importing materials, but that lending or selling the material may become problematic.
This led me, in the rambling way that minds work, to a book I’ve been reading for pleasure. Sybil Marshall’s Sharp Through the Hawthorn is part of a sprawling, out-of-print trilogy about the changing mores in an East Anglian village in the 1960s. The copy that I am reading was printed and published in the United Kingdom, and I bought it from an out of print dealer that operates internationally. I don’t know the route that took it from the original printer to the second-hand dealer to my mailbox and so I do not know whether, under Costco, selling the book to me was legal or whether I can now sell it again. It seems possible that I cannot. Perhaps I will live dangerously and send it to my brother if he would like to read it.
The first sale doctrine is growing smaller. This is most evident to the everyday consumer through the “spectrum of transactions that range from license to sale, with a big fuzzy line dividing the two” for various sorts of electronic media, including ebooks. But it seems likely that its contraction will also be felt through limits on imports such as a recent textbook case winding its way through the courts.
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