First Sale Doctrine

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First Sale: The Basics

The "first sale" doctrine says that a person who buys a legally produced copyrighted work may "sell or otherwise dispose" of the work as he sees fit, subject to some important conditions and exceptions. Section 109(a). In other words, if you legally buy a book or CD, "first sale" gives you the right to loan that book or CD to your friend. Libraries heavily depend on the first sale doctrine to lend books and other items to patrons.

The first sale clause was enacted during a time when most copyrighted works were produced in tangible formats that made such works difficult to reproduce accurately on a large scale. Now that many protected works are produced digitally, however, copyright owners have lobbied Congress for laws that directly or indirectly undermine the "first sale" doctrine.

Additionally, copyright owners are producing their works to include technologies that interfere with the "first sale" doctrine. Software companies also routinely attempt to avoid the first sale doctrine by characterizing their transaction with the purchaser as a license rather than a sale, via non-negotiable “shrinkwrap” or “clickwrap” agreements. As a result of these and other developments, librarians and consumer advocates fear that the additional laws and technology could be rendering the "first sale" doctrine irrelevant.

First sale issues are intertwined with licensing and Digital Millennium Copyright Act ("DMCA") issues. For more information on those issues, please see the licensing or DMCA sections of this web site.

Materials

The following information will help AALL members understand the first sale doctrine and how it affects libraries and librarians.

Member Articles

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Documents

  • Section 1201 Comments (third comment period)
    • Section 1201 Comments (third comment period) http://www.copyright.gov/1201/ The U.S. Copyright Office is legally required to analyze whether section 1201's blanket prohibition against circumventing technological measures hampers copyright principles such as the “first sale” doctrine. The third public comment period ended February 2, 2006.
    • Comments from Library Associations http://www.copyright.gov/1201/2006/comments/band_LCA.pdf AALL, along with the other national library associations, urged renewal of the existing exemptions, the creation of an exemption for AV works and sound recordings, and the creation of an exemption allowing consumers to disable controls that threaten their privacy and the security of their computers.
  • Section 1201 Comments (second comment period)
    • Section 1201 Comments (second comment period) http://www.copyright.gov/1201/2003/reply/reply1.html : The U.S. Copyright Office is legally required to analyze whether section 1201's blanket prohibition against circumventing technological measures hampers copyright principles such as the "first sale" doctrine. The second public comment period ended Feb. 19, 2003. (U.S. Copyright Office)
    • Comments from Library Associations
      http://www.copyright.gov/1201/2003/comments/033.pdf : AALL, along with the other national library associations, offered "modest proposals" because "more appropriately ambitious exemptions designed to address the growing imbalance between copyright holders and the public ... were rejected by the Register of Copyrights in the first rulemaking." (U.S. Copyright Office)
  • Digital Millennium Copyright Act study http://www.copyright.gov/reports/studies/dmca/dmca_study.html : An August 2001 report from the Copyright Office that announced the Office would decline to recommend changes in the copyright law that would address libraries' concerns about the continued viability of the "first sale" doctrine in the digital age. (U.S. Copyright Office)
  • Section 1201 Comments (first comment period)
    • Section 1201 Comments (first comment period) http://www.copyright.gov/1201/anticirc.html : The U.S. Copyright Office is legally required to analyze whether section 1201's blanket prohibition against circumventing technological measures hampers copyright principles such as the "first sale" doctrine. The first public comment period ended Feb. 17, 2000. (U.S. Copyright Office)
    • Comments from Library Associations* http://www.copyright.gov/1201/comments/162.pdf : AALL, along with the other national library associations, urge the Librarian of Congress "to issue a meaningful exemption ... from the ... 1201(a) restriction against copyrighted works protected by certain technological measures" that protects "first sale," fair use and other longstanding copyright principles. (U.S. Copyright Office)
  • Why You Can't Sell What You Buy: A news article that succinctly explains how licensing undermines the "first sale" doctrine (Wired News)
  • The First Sale Doctrine and Digital Phonorecords: An "ibrief" that argues that the first sale doctrine does not apply to "digital phonorecords" (i.e. CDs). (Duke Law & Technology Law Review)