Rethinking a Digital First Sale Doctrine in a Post-Kirtsaeng World: The Case for Caution

John Villasenor, May 28, 2013

In 1908, the Supreme Court articulated the first sale doctrine, holding inBobbs-Merrill Co. v. Straus that a copyright owner’s “right to vend” did not include the right “to control all future retail sales.” The doctrine was codified in the Copyright Act of 1909 and again in §109(a) of the Copyright Act of 1976, which states:

“Notwithstanding the provisions of section 106(3) the owner of a particular copy or phonorecord lawfully