[Greg Anos]

For those of us who are not US citizens, and for those who are, here is a layman's guide to the US legal chain for first sale doctrine as applied to e-books.

(I am not a lawyer, this is my listing and interpretation...)

First US law structure. All law must conform to the US Constitution, as amend and added to by treaty, as interpret by the US Supreme Court. What the Supremes say, goes - period. The only way to override them is with a Constitutional Amendment. A long and arduous process. (Or get them to change their minds, which they hate to do...)

Here's the legal base...

The US Supreme Court has stated that First Sale Doctrine is valid (see Bauer & Cie. vs O'Donnel and Bobbs-Merrill vs. Straus). These were pre-digital days, so the information at question was not being duplicated, merely resold.

While not directly applicable, the Supreme Court ruled in the SONY Corp vs US (the Betamax decision) that time shifting was legal, and that just because a technology could be used for a copyright infringing use, did not mean that a technology should be blocked. However, this was time shifting, not format shifting.

Various district level rulings have held EULA to be sales, not licenses. However, there is no appellate decisions or Supreme decisions, either way.

(US court structure - district is the lowest. the next level is appellate, and finally the US Supreme court. Neither the appellate or Supreme court is required to rule on any particular case, they pick and choose which cases they deem worthy. Any ruling by any court applied only to the area covered by the court, so the district court ruling only apply to those districts. Either the appellate level refused to hear any appeals - unlikely - or the losing software companies didn't want the ruling to potentially apply to more areas than the District Courts where they lost.)

Once again, not directly applicable, but close, is section 117 of the copyright law, allowing software programs to be loading on relevant devices to execute them, allow archival backup and restores, and make copies of software to maintain or repair machines (if they are later deleted).

This lead to the issues of how different (legally) static data files are from executable programs, and the legal basis for DRM and the DCMA.

The DCMA is a legislative implementation of the WIPO Internet treaty. While the treaty has constitutional force in the US, the question of whether it overrides the First Sale or Betamax rulings (or the US free speech amendment) has not been ruled upon by the Supreme Court. (While ruling at lower levels have upheld it.)

Nor has format shifting been adjudicated, however there are others close rulings that suggest that format shifting would probably pass muster. However, this is an opinion, not a fact.

None of these rulings allow for dissemination, that is still a copyright violation. Whether acquiring a copy of a copyrighted work from a third party of which you already own a existing analog copy is still at issue. Finally, definition of a lawful copy is still not defined, despite widespread sales.

(This is not trivial. I purchase a data file X, from a legitimate purveyor of said data file. How can I prove that I purchased said data file, as opposed to a claim that the file was obtained in an infringing manner? the purveyor may no longer be in business, or have purged their purchase records. Since data files have no physical existence, I can't point to an object showing original purchase.)