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Digital Copyright Policy for Libraries: First Sale Doctrine

What is the First Sale Doctrine?

The first sale doctrine, sometimes called the right of first sale, refers to Section 17 of U.S. Code § 109 and establishes that once someone has purchased a copyrighted work, it is theirs to do with as they please. This includes destruction, reselling, and alteration, but also photocopying and lending. Previously, libraries were able to use the first sale doctrine to make photocopies of library materials and lend out copyrighted works multiple times from one purchase. However, due to the increasing popularity of eBooks and other digital content, the first sale doctrine doesn't have as much power as it once did. 

Digital First Sale and the Future of the First Sale Doctrine

The advancement of technology and the prevalence of digital materials has limited the effect of the first sale doctrine. According to the DMCA Section 104 Report, digital works do not fall under the first sale doctrine, while digital copies of physical works can sometimes fall under the first sale doctrine. The DMCA also makes it illegal to circumvent the digital rights software that prevents digital materials from being copied. Therefore, while it is legal to  own a digital copy of a physical work, it is often illegal to create that digital copy. Due to the unsteady state of digital first sale, most publishing companies have resorted to licensing their digital content to libraries instead of selling them to libraries.

This has lead to a lot of confusion among librarians and other information professionals about the state of the first sale doctrine. Matt Enis, in his Library Journal Article, Licensed to Sell?, argues that until there is a legislative decision on a digital first sale doctrine, "everything is just getting murkier and murkier... Even when we have court decisions, they don't apply to the entire country, and courts in different areas often contradict each other." The formal creation of a digital first sale doctrine would allow librarians to have more control over their digital collections, granting them the option to own their digital materials, not just license them. 

Arguments Against Digital First Sale

One argument against the creation of a digital first sale doctrine is that digital materials can be easily copied and shared unlike physical materials. Digital works also do not age like physical copies and have the potential to last for a longer time. While this is certainly true, the current system of licensing works to libraries has effectively eliminated the ability of information professionals to archive their collections. 

Another argument, one that John Villasenor made in his testimony to the House Judiciary Committee in 2014, against the creation of a first sale doctrine is that it would "reduce the ability of content creators to be properly compensated for works sold digitally."  While Villasenor acknowledges that libraries exists because the first sale doctrine was established, he leaves out the library entirely when he discusses the idea of a digital first sale and suggests that a shift to licensing-based models would be sufficient.  Further information on licensing agreements for libraries can be found in the "Licensing Agreements" tab.

Resources

The Copyright Alliance's First Sale Doctrine Position Paper details some of the arguments for and against a digital first sale doctrine, and explains the popularity of licensed content.

Dunner Law's blog post, Buyer Beware: The Threat to the First Sale Doctrine in the Digital Age, recounts the history of the first sale doctrine and explains the high-stakes of a digital first sale doctrine. The post also explores the Vernor v. Autodesk decisions, which complicates the discussion around digital first sale and licensing agreements. 

Additional Readings

Bibliography

Calaba, V. F. (2002). “Quibbles’n Bits: Making a Digital First Sale Doctrine Feasible” by Victor F. Calaba. University of Michigan Law School Scholarship Repository. https://repository.law.umich.edu/mttlr/vol9/iss1/1/?utm_source=repository.law.umich.edu/mttlr/vol9/iss1/1

Doty, P. (2018). First Sale Farther Out: Is There a Future for Interlibrary Loan. Journal of Interlibrary Loan, Document Delivery & Electronic Reserves27(1–3), 11–19. https://doi.org/10.1080/1072303X.2019.1578321

Enis, M. (2013). Licensed to Sell? IDPF Panel Tackles Tough Questions on Digital Content | LJ Insider | Library Journal. Library Journal. https://www.libraryjournal.com/?detailStory=licensed-to-sell-idpf-panel-tackles-tough-questions-on-digital-content

Ferretti, J. (2013). First Sale Decided: The Road to the Kirtsaeng v. Wiley Decision and What It Means for Libraries. Serials Librarian65(3–4), 261–276. https://doi.org/10.1080/0361526X.2013.836464

Reese, R. A. (2003). The first sale doctrine in the era of digital networks. Boston College Law Review44(2), 577. https://dx.doi.org/10.2139/ssrn.463620 

Schwartz, M. (2013). Ebook Fair Play: It’s a License, or a Sale, but It Can’t Be Both | LJ Insider | Library Journal. Library Journal. https://www.libraryjournal.com/?detailStory=ebook-fair-play-its-a-license-or-a-sale-but-it-cant-be-both-lj-insider