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
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.
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


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