Re: first sale doctrine

On Wed, Mar 22, 2000, James Rogers <jetan[_at_]ionet.net> wrote:
>
> I imagine that this has been discussed before, and I have just
> missed it, but what happens to the first sale doctrine on the
> internet? If I pay to download the Stephen King thingie from
> it's site, may I presume that I am not as free to give it away
> or loan it as I would be with it's physical counterpart?

Three views I think. View one: if it does not come with a "license," then first sale doctrine applies, and you can transfer it but must not retain a copy. View two: if it comes with a "license," then terms of contract control. View three: if it comes with a "license" restricting your first sale rights, and it is -- as no doubt it is in this case -- a mass-market (adhesion) contract, then the license term (if not the license) is invalid on contract, intellectual property, or some public policy grounds, and first sale applies. Which is currently the law may be anyone's guess, but a firmer answer may had in your particular court/circuit. UCITA has an answer (license applies), but I think the courts go different ways (in relatively similar proportions).

Gregory Powell
(415) 845-3689
greg.powell[_at_]mindspring.com Received on Thu Mar 23 2000 - 11:23:03 GMT