Stanford Law Review Online: Kirtsaeng and the First-Sale Doctrine’s Digital Problem

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Professor Clark D. Asay entitled Kirtsaeng and the First-Sale Doctrine’s Digital Problem. Professor Asay argues that:

[T]he history and purpose of the first-sale doctrine provide good reasons to abandon the licensee/owner dichotomy as well as the formalistic approach to interpreting the doctrine’s applicability to digital transfers. Doing so, furthermore, is unlikely to undermine markets for copyrighted works, but instead will help preserve the appropriate balance between the rights of copyright holders and consumers that first-sale rights have historically helped maintain.

He concludes:

The Kirtsaeng decision helped further cement the first-sale doctrine as an important limitation on the rights of copyright holders. But more cement is needed. Specifically, as the digitization of copyrighted works increases, first-sale rights face increasing peril as copyright holders subject consumers to click-through agreements that eviscerate first-sale rights in effect if not in theory. Furthermore, some courts have recently employed a formalistic ap-proach to the statutory text that renders first-sale rights simply inapplicable to digital transfers. If Kirtsaeng is to avoid becoming the first-sale doc-trine’s “swan song,” courts and Congress must respond to save it.

Read the full article, Kirtsaeng and the First-Sale Doctrine’s Digital Problem at the Stanford Law Review Online.

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