The First Sale Doctrine and the Sale of Digital Goods in Light of Kirtsaeng and ReDigi, Inc.

A recent decision has attempted to clarify the scope of the first sale doctrine: Kirtsaeng v. John Wiley & Sons, Inc. and Capitol Records, LLC v. ReDigi, Inc. In Kirtsaeng, a Thai graduate student, attending school in the United States, purchased foreign editions of textbooks in Thailand, shipped them to the United States, and then resold the books for profit.  The Supreme Court held that the first sale doctrine would apply, as the doctrine extends to copies of a copyrighted work lawfully made abroad. The Court’s decision in Kirtsaeng is limited to the sale of tangible or physical items. In our advancing technological world, questions remain in how far the first sale doctrine extends to the sale of digital goods. In other words, can a consumer resell songs purchased on iTunes or eBooks they have downloaded to their Kindle? A Company called ReDigi, Inc. believes that consumers should be able to resell digital music, unsurprisingly Capitol Records, LLC disagrees……..

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