“own” the received copy.^3316 Such a transaction seems highly analogous to a traditional sale of a
copy, except for the distribution vehicle.
One could readily argue that in such instances the first sale doctrine should apply by
analogy to permit a purchaser to further transmit his or her copy to a third party, so long as the
purchaser deletes his or her original copy from storage, because in that instance, as in the case of
traditional distributions of physical copies, no more total “copies” end up in circulation than
were originally sold by or under authority of the copyright owner. As one commentator has
noted:
[The first sale doctrine’s] balance was gauged over the years .... Neither the
copyright owner nor the copy owner receives all that it might desire. The balance
could be recut today for cyberspace, but no clear reasons exist to do so. Absent
that, this balance governs treatment of digital works, whether on the Internet or a
diskette. Applying it is relatively simple. A purchaser who acquires a digital
product that is not subject to a license has a right to retransfer the copy, make
copies essential to use the work, and otherwise act as owner of the copy. If the
“copy” is transferred, the transferor must relinquish all copies it possesses.
Otherwise, it would in effect be making multiple copies inconsistent with the
balance between copy and copyright owners.^3317Although this argument makes sense in many instances, such as where a buyer has
purchased a copy of a book that is delivered electronically, in other instances the policy choices
with respect to whether the first sale doctrine should be applied by analogy seem less clear. One
such example comprises works that are made available for on-demand usage, such as movies.
The copyright owner clearly intends to make such works available only for one time use by the
recipient, and any further retransmission or distribution of the work to third parties would cut
into the owner’s on-demand market for the work. Yet depending upon the transmission
technology used, a “copy” of the work may be made in whole or in part at the recipient’s end.
Indeed, under the MAI case, even the data stored in RAM at the recipient’s computer would
constitute a “copy.” It seems less clear that such “copy” should trigger the first sale doctrine and
permit the recipient to further distribute that “copy,” even if the recipient does not retain a copy.
As currently codified in Section 109, the first sale doctrine is drafted as an exception to
the distribution right of the copyright holder. However, as discussed earlier, the new rights of
transmission and access under the WIPO treaties are seemingly broader than the current
distribution right under United States law. An issue therefore arises as to whether the first sale
doctrine should prevail over these new rights of transmission and access, in addition to the right
of distribution. Both WIPO treaties contain provisions stating that nothing in them shall affect
the freedom of Contracting Parties to determine the conditions, if any, under which the
(^3316) In the case of computer programs, copyright owners often distribute copies of the program subject to a license
agreement which states that the copy is being licensed, not sold, to the user as a vehicle to avoid the
applicability of the first sale doctrine to the transaction.
(^3317) R. Nimmer, Information Law ¶ 4.08[2][b], at 4-32 to 4-33 (2001).