MobileRead Forums - View Single Post - US Circuit Court of Appeal verdict making first-sale doctrine practically useless?

Kali Yuga · 09-16-2010, 09:37 AM

FYI, the 9th Circuit ruling is available on line here: http://www.jdsupra.com/post/document...5-5200c77bb00f

I'd have to say that in this particular case, I have a hard time seeing how Vernor has a leg to stand on.

The company that originally purchased the software (CTA) upgraded their copies of AutoCAD R14. Rather than destroy the CDs, they resold the physical discs. I.e. CTA is essentially still "using the software" they originally purchased from Autodesk, since those copies were subsequently upgraded.

CTA did not lose access to the content by reselling the physical objects (the installation CD's), as would be the case with a paper book or an instruction manual.

The "first sale" doctrine was generated in 1908, and IMO makes perfect sense when applied to physical goods. If I purchase a paper book, and I resell it, I essentially lose access to the content in question; the transaction is clean and complete. The physicality of the object produces a mechanism by which unauthorized duplication is (generally) restricted.

With digital content, that is clearly not the case, since I often have the ability to create duplicates at will. Thus you can easily have a situation where the content is available to the original purchaser, as well as any and all subsequent purchasers. The resale process potentially produces an unlimited number of unauthorized duplicates.

From what I can tell, there are precedents that a licensor can put incredibly strong restrictions on licensed content. I'd have to agree with the court that if you want that changed, it's really a job for Congress, not the courts.

09-16-2010, 09:37 AM	#18
Kali Yuga Professional Contrarian Posts: 2,045 Karma: 3289631 Join Date: Mar 2009 Device: Kindle 4 No Touchie	FYI, the 9th Circuit ruling is available on line here: http://www.jdsupra.com/post/document...5-5200c77bb00f I'd have to say that in this particular case, I have a hard time seeing how Vernor has a leg to stand on. The company that originally purchased the software (CTA) upgraded their copies of AutoCAD R14. Rather than destroy the CDs, they resold the physical discs. I.e. CTA is essentially still "using the software" they originally purchased from Autodesk, since those copies were subsequently upgraded. CTA did not lose access to the content by reselling the physical objects (the installation CD's), as would be the case with a paper book or an instruction manual. The "first sale" doctrine was generated in 1908, and IMO makes perfect sense when applied to physical goods. If I purchase a paper book, and I resell it, I essentially lose access to the content in question; the transaction is clean and complete. The physicality of the object produces a mechanism by which unauthorized duplication is (generally) restricted. With digital content, that is clearly not the case, since I often have the ability to create duplicates at will. Thus you can easily have a situation where the content is available to the original purchaser, as well as any and all subsequent purchasers. The resale process potentially produces an unlimited number of unauthorized duplicates. From what I can tell, there are precedents that a licensor can put incredibly strong restrictions on licensed content. I'd have to agree with the court that if you want that changed, it's really a job for Congress, not the courts.