Talk:First-sale doctrine

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Start[edit]

Davidson & Associates (d/b/a Blizzard Entertainment) v. Internet Gateway Inc (bnetd) (2004) and Softman v. Adobe are two different cases. The former is about Internet Gateway who reverse engineer Blizzard game network so their program bnetd can interoperate. Whereas the later is about transferability of purchased licensed software.

A correction needs to be made for this statement: "This runs counter to Softman v. Adobe. The difference in these rulings has yet to be resolved by a superior court. ..."

It doesn't really run counter to the Softman v. Adobe case. Transferability of license software is the right of the purchase. Once an individual purchase a license, it is the individual who can resell the software.

Accordingly, section 117 states that "Adaptations so prepared may be transferred only with the authorization of the copyright owner." This is where reverse engineer comes in. This area of the law is still murky.

As for the resell of purchased license, the court side with consumer by allowing the consumer to resell the license he/she purchased provided the consumer gives up his/her right to the license at the point of sale. This has vast implication, if a student purchase a software that said "for student use only", the student can in turn sell the software to the open market. That's legal. Another case, is if a consumer receive a software or product for free that says "not for resale", he/she can turn around and sell the software or product that's state "not for resale". It is not the right of the copyright owner or the right of the manufacturer to dictate after first sale of the said item or license.

Confusing xample?[edit]

Is it just me or does this example not really help to clarify this article:

It is the principle that causes people to find the following example absurd:

"If you purchase a Ford car, you may not drive it near a Chevy dealer, or trade it for a Chevy, because it was Ford's car."

It just seems an absurd example in my opinion and only causes to confuse the article with its dual negativety.


--

i agree and am removing it. Aaronbrick 03:10, 24 Jun 2005 (UTC)

Is a sale required?[edit]

The first-sale doctrine is an exception to copyright codified in the US Copyright Act, section 109. The doctrine of first sale allows the purchaser to transfer (i.e. sell, rent, or give away) a particular, legally acquired copy of protected work without permission once it has been obtained.

The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement.

(The second paragraph was a quote from a court case.) Brianjd 10:42, 2004 Dec 27 (UTC)

-- I am amused by this twist of words. This whole issue was decided by the Supreme Court in the early 1900's. The MO judge is essentially trying to overule prior Supreme Court decesions on the matter and may or may not stand up if apealed (Depends on the COA and Supreme court). Also note that in Softman they did not install the bundled software and did not agree to the EULA- thus it is not conflicted.

Also 117 does not say what is listed here. That phrase is actually from Adobe v Softman, furthermore Vault v Quiad contradicts this. Of course it depends on which district you are in as Blizzard v BnetD directly conflicts Vault v Quiad. Then again Blizzard v BnetD relies on injuctions that were overturned in the Lexmark case , Ignores CONTU intent and precedent of prior cases such as Quiad, Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), ola Elec. Co. v. Jefferson Elec. Co., 317 U.S. 173, 176, 63 S.Ct. 172, 173, 87 L.Ed. 165 (1942), Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), Mitchell v. Penton/Indus. Publishing Co., 486 F.Supp. 22 (N.D. Ohio 1979), Triangle Publications, Inc. v. Sports Eye, Inc., 415 F.Supp. 682, 686-87 (E.D.Penn.1976), ect ... ect... WHich means that if taken apealed it could very well be overturned.

But hey its MO, which has churned out a lot of weird opinion such as the MGM v 321 Studio rulling in which they also outlaw circumvention of DRM on Public Domain materials (No copyright expire date through DRM) and the portion of the BnetD ruling where they claim that if software has the same function as another piece of software it is copyright infringement(Patent-like copyright protection).

New information (case law)[edit]

From AECNews.com

The US District Court in Seattle on Wednesday ruled in favor of eBay seller Timothy S. Vernor, denying Autodesk’s request for “summary judgment” against Vernor. In doing so the court ruled that Vernor had the right to appeal for relief from Autodesk actions based on the “first sale” doctrine of copyright law. In finding for Vernor, Judge Richard Jones’ ruling dismissed most of Autodesk’s wide-ranging legal arguments as without standing.
If allowed to stand, the ruling effectively pulls the heart out of the license agreements that accompany most retail software products on the market today. You can be sure that not only Autodesk, but most software companies, will take action of some sort in response. It is unimaginable that Autodesk will not appeal this decision.
The case is not over; the court has ordered both sides to sit down and discuss whether the case should continue and settle Vernor’s claim that Autodesk engaged in unfair trade practices in violation of state law in either California (Autodesk’s home) or Washington state (Vernor’s home). Their report to the court is due June 27.

I'll leave it to others to decide how to integrate it with the article, but this is a substantial decision dealing with this doctrine. 66.20.48.108 (talk) 19:50, 22 May 2008 (UTC)

June 2008 Case Law Affirming the Right of First Sale on "Demo" CDs[edit]

I'm not the best at Wiki markup, so rather than adding this myself, I'm posting it here with links in hopes that someone more experienced will make the change:
[1]UMG Recordings vs. Troy Augusto
[2]Article praising decision and summary of decision

Does the MO court ruling in Blizzard v. BNETD even apply anymore?[edit]

Wasn't the MO court decision in Davidson & Associates v. Internet Gateway Inc (2004) overturned by the 8th circuit. If so, the following quote even apply anymore:

"The first sale doctrine is only triggered by an actual sale. Accordingly, a copyright owner does not forfeit his right of distribution by entering into a licensing agreement"? Luciphercolors (talk) 20:38, 13 November 2008 (UTC)

Find sources[edit]

It seems there are more cases and sources, see:

Find sources: "First-sale doctrine" – news · newspapers · books · scholar · JSTOR · free images
Find sources: "Exhaustion Rule" – news · newspapers · books · scholar · JSTOR · free images

You can help by expanding on the article using these sources. --Hm2k (talk) 01:21, 25 November 2009 (UTC)


It seems that the link to ABC regarding the recent news of Europe stating that you can resell digital software is broken. — Preceding unsigned comment added by 79.37.210.174 (talk) 11:12, 1 August 2012 (UTC)

CC-NC[edit]

If I understand this correctly, this could be used to circumvent the non-commercial clause in certain Creative Common licenses. If person A makes copies and gives them to person B for free, B can sell them for any price he wants, because person B is not a licensee, and he has legally obtained the copies legally made by person A. Is that right? -- Sloyment (talk) 05:48, 1 May 2010 (UTC)

--Hm2k (talk) 15:52, 4 May 2010 (UTC)

Covers downloads?[edit]

The paragraph in the overview that discusses the Copyright Act of 1976 states "So, for example, if the copyright owner licenses someone to make a copy (such as by downloading), then that copy (meaning the tangible medium of expression onto which it was copied under license, be it a hard drive or removable storage medium) may lawfully be sold, lent, traded, or given away." Surely the 1976 Act did not discuss downloading digital copies? Can this be sourced, or is it just wishful thinking? (None of the case law involving software seems to say anything about downloading copies.) --Ted Mielczarek (talk) 17:51, 3 June 2010 (UTC)

Computer software & Case law sections: Neutrality disputed due to uncited sources[edit]

The sections titled Computer software and Case law have several uncited opinions. In the Computer software section, the opinion disputes a court ruling, but does not provide any citations; in the Case law section, a possible interpretation of the law is provided but unsourced. In this particular case, what is offered is an interpretation of a law, so while a citation to the relevant law was included, the article also needs a citation to a published case from a judge or court, or a published legal opinion paper or essay from a legal expert or scholar. If the interpretation itself cannot be properly sourced, then it needs to be removed, per Wikipedia's Citation policy.

Additionally, in the Computer software section, the wording of these unsourced opinions implies a bias in opposition to the court cases discussed, which calls the neutrality of the section into question. Once the data has been properly sourced, changes to the language are needed to make sure it complies with Wikipedia's Neutral POV policy.

In addition to this notation, I am adding the multiple-issues template to the article, and in certain instances inline citation markers were added to indicate key concepts which need additional citation. Lioux (talk) 10:18, 17 February 2011 (UTC)

Costco v. Omega (limiting scope of first sale doctrine)[edit]

This article needs to be updated with the supreme court decision Costco v. Omega. This case decided in December 2010. This case limits the scope of the first sale doctrine to domestically purchased works only. LexieM (talk) 17:38, 15 March 2011 (UTC)

Wiley v. Kirtsaeng (August 15, 2011)[edit]

The Second US Circuit Court of Appeals ruled on August 15, 2011 in a case involving First Sale Doctrine as reported in Library Journal. This ruling may have implications for the operation of libraries, and someone with legal training may want to incorporate this information into the article. Epanalepsis (talk) 14:57, 2 September 2011 (UTC)

USA v. The Rest of the World[edit]

I think the article ought to make it clearer that 'first sale doctrine' is a peculiarity of US copyright law. Unlike all other countries' laws, so far as I know, US copyright statutes (beginning with the first one of 1790) give copyright holders of a work an exclusive right to 'vend' (i.e. sell) copies of the work in question. This contrasts with other countries' laws (e.g. UK, Canada) which give an exclusive right to 'print' or 'make copies', but not to sell them. (The English Statute of Anne penalised the sale of copies made without permission, but this is a different matter - it did not affect the sale of properly authorised copies.) The exclusive right to 'vend' raises the question whether the copyright holder (usually a publisher) retains control of sales after the first sale. In the case of Bobbs-Merrill v. Straus the Supreme Court decided that it did not, and in the 1909 Copyright Act this decision was incorporated into statute law as an explicit limitation of the exclusive right to 'vend'. Under systems with no statutory exclusive right to 'vend' the problem simply does not arise. The US approach raises further problems about the interaction of statute law and contract, e.g. does the right of 'first sale' abridge the common law freedom of contract? Hence all the arguments about when something is 'sold' and when it is merely 'licenced'.109.158.243.214 (talk) 15:37, 10 March 2012 (UTC)

If you can add something based on reliable published sources and not WP:OR, go for it! TJRC (talk) 19:16, 10 March 2012 (UTC)

Restructuring[edit]

The wiki article on first sale doctrine is not well organized. I took a stab at restructuring the page with section 109 of the statue in mind. Big chunk of the article was devoted to Clayton Act, which IMHO only plays a minor role in the doctrine. The intersection of fist sale doctrine and the importation ban, highlighted by the Quality King supreme court case and the recent cert issues for Wiley v. Kirstaeng is presented without a coherent structure. Having a separate case law section doesn't seem to be helpful for someone new in the filed. It would be better to include the case related information when the issue presented in the case is discussed in the main portion of the article. As a recent law school graduate, I have some expertise in copyright law and would like to improve this page. I took a stab at it, but unfortunately the ClueBot decided that my restructuring is a vandalism. What's the best way for me introduce a major cleanup? Could one of the admins take a look at my "major" edit of May 08,2012 and see what I am trying to attempt. Thefinalcut (talk) 15:21, 8 May 2012 (UTC)

  • It appears that the bot made an error when judging your edit. I have reverted the bot and reinstated all of your changes, which look quite helpful. Thanks for helping to improve the article, and please do continue with other ones! That bot rarely makes errors, and I'm not sure what triggered it (though I will report the error later on today). Sorry for the inconvenience! --CapitalR (talk) 16:53, 8 May 2012 (UTC)
  • Thank you User:CapitalR for the quick fix! I will work on the other edits to this page.Thefinalcut (talk) 18:13, 8 May 2012 (UTC)

Public Display[edit]

This section has me completely puzzled:

Application to Public Display Right 17 U.S.C. §109(c) creates a limited exception to a copyright owner’s public display right. Owner of a lawful copy of a copyrighted work can, without permission from the copyright owner, display that copy to viewers present at the place where the copy is located. For example, owner of copy cannot display the copy publicly on a website under this provision.

Is the point of the last sentence supposed to be the following? "On the other hand, the owner of a copy can NOT display that copy publicly on a website under this provision, because public display is only allowed where the copy is physically located."

Don't get me wrong; I'm not saying that that's right. I don't know exactly how the law applies to public display, vis a vis web sites. (If I did know, I'd just fix it.) That's the problem: After reading the section on public display, I still don't know how the law applies to public display.

Mjschryver (talk) 04:54, 15 June 2012 (UTC)

Globalize[edit]

This page should talk about similar doctrines in other countries, or note that none exist. Right now, it's very US-centric. --NYKevin 04:33, 17 July 2012 (UTC)

Requested move[edit]

The following discussion is an archived discussion of a requested move. Please do not modify it. Subsequent comments should be made in a new section on the talk page. Editors desiring to contest the closing decision should consider a move review. No further edits should be made to this section.

The result of the move request was: page not moved: no consensus after 35 days, no discussion in 27 days. Anthony Appleyard (talk) 14:14, 9 October 2012 (UTC)


First-sale doctrineFirst sale doctrine – I think this borders on a technical request. This may or may not be an appropriate use of a hyphen but WP:RS overwhelmingly favor the unhyphenated version. See, for example, the US Attorneys Office, Library Journal, Techdirt, and The National Law Review. On the first page of results for a regular and a Scholar Google search, only one result used the hyphenated form. This is not to say the hyphenated version is a rogue error—Wired and The Atlantic use it, but they're in a definite minority among reliable sources. --BDD (talk) 16:09, 4 September 2012 (UTC)

  • SupportComment. Right, I think either form may be considered correct. This is getting into a pretty technical aspect of English grammar. I'm not a grammar expert, but I think the distinction revolves around the difference between a noun and an adjective modifying a noun. "First sale doctrine" is a noun. An example that might make it more clear: Three Rivers Stadium is also a noun (a proper name, so capitalized). Three-Rivers Stadium would be an adjective (three-rivers) modifying the noun stadium, to identify a particular stadium. First-sale is an adjective modifying doctrine, i.e., disambiguation to distinguish a particular doctrine. Grammar experts, feel free to correct me if I don't have that quite right. Interesting that French uses a hyphen: Trois-Rivières (disambiguation)Wbm1058 (talk) 20:45, 4 September 2012 (UTC)
  • Support. I think under most applications of standard English rules, it would be the "first-sale doctrine", but in the real world, it is overwhelmingly referred to as the "first sale doctrine", and that's what should control. I admit that I wince a little when I see it with the hyphen, so I appreciate the move proposal. TJRC (talk) 22:17, 4 September 2012 (UTC)
Actually, thinking further on it, I don't think my comment "I think under most applications of standard English rules, it would be the 'first-sale doctrine'" is correct. This is the doctrine of the first sale., i.e., the first sale doctrine; not the doctrine of the first-sale. I don't see anything in WP:HYPHEN that this article title falls squarely into, either, so that style guide is not on-point here; even if it were, I don't think the style guide would go so far to suggest using a different article name than the name under which the doctrine is best known. TJRC (talk) 00:51, 9 September 2012 (UTC)
  • Oppose—While lawyers and related professional types might drop the hyphen because they see this compound term every day, WP is not written for experts. Here, we aim for a wide readership, and the hyphen makes this three-word item easier to parse unless you're very familiar with it. (The first sale doctrine was developed in 1921 ... the first of many sale doctrines was ...) As well, the major style guides and WP's in-house guide say to use a hyphen in such an item. Tony (talk) 08:00, 5 September 2012 (UTC)
I believe the section Tony is referring to is MOS:HYPHEN. Coincidentally and interestingly enough, it even includes the Trois-Rivières example, but regarding Three Rivers, "hyphens are never inserted into proper-name-based compounds." However, the compound modifier article says: "consult a dictionary to determine whether a compound adjective should be hyphenated; the dictionary's hyphenation should be followed even when the compound adjective precedes a noun. Hyphens are unnecessary in other unambiguous, regularly used compound adjectives." So, I suppose Three Rivers is unambiguous. The question is whether first sale is too—hey, that redirects to our article, so that's a point in favor. But someone unfamiliar might think, first sale doctrine? The red link also leans towards not needing the hyphen, but nonetheless, Tony has moved me to the fence. Wiktionary doesn't give any guidance. Wbm1058 (talk) 12:12, 5 September 2012 (UTC) Wbm1058 (talk) 12:24, 5 September 2012 (UTC)
  • Comment - My copy of Black's Law Dictionary (6th ed., 1990 -- I understand they're up to the 9th edition now, but I've never found a need to replace the copy my Mom got me as a gift when I started law school) uses "first sale rule": no hyphen (but no "doctrine," either). TJRC (talk) 18:47, 12 September 2012 (UTC)
The above discussion is preserved as an archive of a requested move. Please do not modify it. Subsequent comments should be made in a new section on this talk page or in a move review. No further edits should be made to this section.

John Wiley & Sons Inc. v. Kirtsaeng (2011)[edit]

Reporting an error here. From the way I look at it, the textbooks were unlawfully imported into the U.S. by people the defendant knew. This doesn't restrict a person's ability to resell a work that was created outside the U.S., then imported into the States with permission. 68.173.113.106 (talk) 23:32, 1 January 2013 (UTC)

UMG v. Augusto confusion[edit]

The article states, that

the same 9th Circuit panel that decided Vernor v. Autodesk, refused to apply Vernor's three-factor test in UMG v. Augusto

However, the way I see it, the court did apply the test; UMG did not impose any restrictions on the "use" of the work, so when the court applied the test, the third criterium didn't apply, so the licensing relationship was not created. — Preceding unsigned comment added by 89.212.53.248 (talk) 23:34, 14 March 2013 (UTC)