(c) American Broadcasting v. AereoIn this case, discussed in Section II.B.10 above, a district court in New York followed the
Second Circuit’s decision in WPIX, Inc. v. ivi, Inc. to conclude that Aereo’s activity of Internet
retransmissions of copyrighted broadcasts was not entitled to the Section 111 compulsory
license.
- International Licensing Efforts
In November of 2003, the International Federation of the Phonographic Industry (IFPI), a
global trade body representing major and independent music labels, announced a “one-stop”
international license for webcasters. IFPI expected collection agencies in 30 to 40 countries to
sign up to the single license agreement by the end of 2003. Webcasters would pay a national
body a fee for songs broadcast into each individual country. The agreement would be for radio-
style broadcasts only. Internet companies would still need to secure individual licensing
agreements to sell permanent song downloads.^3312
F. First Sales in Electronic Commerce
The “first sale doctrine” of copyright law is codified in Section 109 of the copyright
statute. That section provides, “Notwithstanding the provisions of section 106 (3) [the exclusive
distribution right], the owner of a particular copy or phonorecord lawfully made under this title,
or any person authorized by such owner, is entitled, without the authority of the copyright owner,
to sell or otherwise dispose of the possession of that copy or phonorecord.”^3313 The applicability
of the first sale doctrine to “sales” through online commerce is uncertain.
Section 109 pertains to the sale or disposal of “the possession of [a] copy or
phonorecord.” The statute was, of course, originally drafted with tangible copies in mind. An
immediate issue concerns whether an initial “sale” accomplished by an online transmission,
rather than the physical distribution of a material object, constitutes a sale of a “copy” that would
trigger the application of the doctrine at all. At least one commentator has argued that it does
not,^3314 and the NII White Paper notes that the issue is uncertain.^3315 However, it seems plausible
to analogize a transmission in which a complete authorized copy of a work ends up in permanent
storage at the recipient’s site (i.e., other than a transitory copy in RAM) as the distribution of a
“copy” for purposes of the first sale doctrine, at least where it was intended that the recipient
(^3312) “Music Industry Trumpets Global Webcast License” (Nov. 11, 2003), available as of Nov. 11, 2003 at
http://uk.news.yahoo.com/031111/80/edmp0.html.
(^3313) 17 U.S.C. § 109(a).
(^3314) K. Stuckey, Internet and Online Law § 6.08[3][b], at 6-54 (2013).
(^3315) NII White Paper at 43-44.