Dylan J. Quinn, MJLST Staff
This past spring, the Supreme Court delivered a landmark decision in regard to the first sale doctrine by reversing the Second Circuit in John Wiley & Sons, Inc. v Kirtsaeng. The First Sale Doctrine allows a buyer or recipient of a copyrighted work to dispose of, lend, or distribute that copy as they see fit. In Wiley, the Court ruled in favor of the Defendant – who bought books in another country at a lower cost, imported them to the U.S., and then re-sold them at a higher market rate – thereby solidifying that the doctrine applies to copies of a copyrighted work lawfully obtained abroad.
A year prior to the ruling, in Volume 13, Issue 2, of the Minnesota Journal of Law Science & Technology, Benjamin Hamborg critiqued the Second Circuit for ruling against the Defendant, arguing that the Supreme Court needed to overturn the decision because the Circuit Court failed to give proper weight to the legislative history of the first sale doctrine and the negative public policy implications that would arise from affirming the ruling. The Supreme Court was in agreement with Hamborg, and seemingly eliminated those public policy concerns and the uncertainty surrounding the doctrine.
Hamborg discussed the potential dangers posed to libraries if they were not allowed to distribute works that were manufactured abroad, and while Wiley seemed to put an end to those issues, the movement of libraries into a more digital age has raised recent concerns about libraries’ ability to lend or distribute e-books and other digital works. Currently, redistribution of a digital work is not given the same “first sale” protection from copyright infringement claims because digital works do not decay over time and copies are just as valuable as the original – thereby having unknown consequences on the market for the copyrighted works. As libraries convert more and more of their collections into digital formats, we could be moving into an era where a dispute over a licensing agreement removes a large portion of a library’s collection instantly.
The recent concerns over libraries by no means represent the first discussion about a potential “digital” first sale doctrine, however it is just another example of the pressure pushing down on Congress to address the proper application of the first sale doctrine in a digital age. Back in 2001, the Copyright office addressed proposals for a digital first sale doctrine, and responded that “there was no convincing evidence of present-day problems” and that no expansion of first sale would be recommended. In the years since, there have been few developments that suggest Congress is ready to address the issue, until recently.
In the last two years, the Department of Commerce solicited comments on a possible digital first sale doctrine, the Director of the Copyright Office discussed possible options Congress could weigh if addressing the issue, and a court ruled against expanding the first sale doctrine into the digital sphere – stating that it is an issue for Congress. The recent resurgence of concerns over libraries is just another indication of the pressure facing Congress to address the application of the first sale doctrine on the internet.
While the issue clearly impacts libraries, the issue has massive implications on the entire online market place. It is a tall order to address such a large issue, but eventually something has got to give. At some point there needs to be alternative legislation or expansion of the first sale doctrine on the internet. The slogan surrounding the early days of internet sums it up best: everything that can be digital will be.