Fred von LohmannSenior Staff Attorney

©@300April 10, 2010

Understanding Copyright’s  Exhaustion Doctrine

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“First Sale”

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© Exhaustion

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“That nine copies of each book or books, upon the best paper ... shall ... be delivered ... for the use of the royal library, the libraries of the universities ... for the use of the aforesaid libraries”

Statute of Anne (1710)

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“Whenever he parts with that ownership, the ordinary incident of alienation attaches to the particular copy parted with, in favor of the transferee, and he cannot be deprived of it. This latter incident supersedes the other, swallows it up, so to speak...”

Henry Bill Publ’g Co. v. Smythe (1886)

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§ 109(a)§ 109(c)

§ 117(a)(1)§ 117(a)(2)

UMG v. Augusto558 F. Supp.2d 1055 (C.D. Cal. 2008)

Vernor v. AutoDesk2009 WL 3187613 (W.D. Wash. 2009)

MDY v. Blizzard2008 WL 2757357 (D. Az. 2008)

iPhone jailbreaking2009 Triennial DMCA Rulemaking

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trigger?

default or mandatory rule?

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why exhaustion?

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Objections:

freedom of contract

perfect property and efficiency

price discrimination

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information costssecondary markets

preservationrights in personal property

decentralize access

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right of private use?user innovation?

© border w/ contract?traditional contour?

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cf. contract

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