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32 J. Copyright Soc'y U.S.A. 77 (1984-1985)
The First Sale Doctrine - The Defense That Never Was

handle is hein.journals/jocoso32 and id is 87 raw text is: PART I ARTICLES EDITOR'S NOTE: One of the most important limitations on the co- pyright owner's rights is that found in Section 109 of the 1976 Copyright Act. This limitation, known popularly as the first sale doctrine, pro- vides, generally, that where the copyright owner has transferred own- ership (as opposed to mere possession) of a particular copy, the person to whom the copy is transferred may, without the consent of the copy- right owner, sell or otherwise dispose of the possession of that copy***. The advent of reprographic technology and its use by retail stores to engage in the rental of copyrighted works with the knowledge, if not expectation, that many patrons will duplicate the works, has caused Con- gress to reassess the continued validity of the first sale doctrine. In the case of sound recordings, Congress recently eliminated the limitation except in the case of certain nonprofit organizations. The present article reviews the case law and statutory provisions under both the 1909 and 1976 Copyright Acts, and concludes that neither act provides convincing authority for application of the first sale doctrine to rental of video cassettes purchased by a retailer. 28. THE FIRST SALE DOCTRINE-THE DEFENSE THAT NEVER WAS? By RICHARD COLBY* The Committee concludes that the first sale doctrine was never intended to allow or to sanction commercial record rentals which lead inevitably to widespread and unauthorized home taping.' Senate Judiciary Committee, June, 1983 @ 1985 Richard Colby *Senior Distribution & Marketing Counsel, Twentieth Century Fox Pictures; Adjunct Professor of Law, Pepperdine University School of Law, Malibu, Cal- ifornia; Member of the California and New York Bars; J. D. Yale Law School 1949. Chairman, 1982-1985, American Bar Association Subcommittee on Em- ployment fOr Hire of the Committee on Authors of its Patent, Trademark and Copyright Section; Chairman, Copyright Committee, Member, Executive Com- 0010-8642/84/06/77-32 S2.00/0 Colby. First Sale Doctrine 77

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