Defending the First Sale Doctrine

by on August 12, 2007 · 6 comments

Fred von Lohmann explains why the Electronic Frontier Foundation has taken up the case of a used music merchant who’s been targeted by UMG for selling CDs marked “promotional use only.” At stake is the first sale doctrine: the principle that once a copyright holder sells or gives away a copy of a copyrighted work, that the new owner has the right to do as he pleases with that copy, including re-selling it, and that printing “not for resale” on the CD doesn’t change the equation.

Sounds like a worthwhile case. Legal documents are here.

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About Tim Lee

Timothy B. Lee (Contributor, 2004-2009) is an adjunct scholar at the Cato Institute. He is currently a PhD student and a member of the Center for Information Technology Policy at Princeton University. He contributes regularly to a variety of online publications, including Ars Technica, Techdirt, Cato @ Liberty, and The Angry Blog. He has been a Mac bigot since 1984, a Unix, vi, and Perl bigot since 1998, and a sworn enemy of HTML-formatted email for as long as certain companies have thought that was a good idea. You can reach him by email at leex1008@umn.edu.

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  • http://enigmafoundry.wordpress.com/ enigma_foundry

    Yes it does sound like a worthwhile case, and I would have previously thought the reseller would win.

    I say previously because that horrible decision of Blizzard_v_bnetd, which could have a bearing on this case, but I hope not… (IANAL)

  • http://enigmafoundry.wordpress.com eee_eff

    Yes it does sound like a worthwhile case, and I would have previously thought the reseller would win.

    I say previously because that horrible decision of Blizzard_v_bnetd, which could have a bearing on this case, but I hope not… (IANAL)

  • http://www.codemonkeyramblings.com MikeT

    Intellectual property does not enjoy the same status in our society that physical property does because IP holders enjoy far more power. Cases like this only prove that point. There is no reason why by convention or law a copyright holder should be able to scribble some non-sense onto a CD, thus turning it into some super special contract that doesn’t require an actual signature or verbal consent to make binding.

  • http://www.codemonkeyramblings.com MikeT

    Intellectual property does not enjoy the same status in our society that physical property does because IP holders enjoy far more power. Cases like this only prove that point. There is no reason why by convention or law a copyright holder should be able to scribble some non-sense onto a CD, thus turning it into some super special contract that doesn’t require an actual signature or verbal consent to make binding.

  • Vic

    The outcome of this case won’t have much practical effect for other similarly situated sellers like the defendant (Roast Beast Music). This is because the vast majority of the market for these sorts of items is through one venue, eBay. eBay and half.com have already added most of the items in question to the prohibited items list. Also recently prohibited are promotional/instructor’s versions of textbooks, and any DVDs other than region 1 (the region 1 DVD restriction appears to be on half.com only). eBay will suspend an account on the spot for listing any of these items.

    Affirming the First Sale Doctrine for all of these items would be great on principle, but then the more important judge becomes the monolithic God of eBay – who rarely budges – because he/she doesn’t have to.

  • Vic

    The outcome of this case won’t have much practical effect for other similarly situated sellers like the defendant (Roast Beast Music). This is because the vast majority of the market for these sorts of items is through one venue, eBay. eBay and half.com have already added most of the items in question to the prohibited items list. Also recently prohibited are promotional/instructor’s versions of textbooks, and any DVDs other than region 1 (the region 1 DVD restriction appears to be on half.com only). eBay will suspend an account on the spot for listing any of these items.


    Affirming the First Sale Doctrine for all of these items would be great on principle, but then the more important judge becomes the monolithic God of eBay – who rarely budges – because he/she doesn’t have to.

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