First Sale Doctrine

I posed this question several months ago, but no replies.

Does the first sale doctrine apply to the following facts?

A syndicator produces a weekly radio show and distributes the show on CDs to hundreds of radio stations. The agreement with the radio station states that the syndicator retains title to the CD, and upon demand, the radio station is to return the CD to the syndicator. Of course the syndicator never asks for the CDs back. The radio stations give the CDs away, and they ultimately end up at a flea market where an enterprising person purchases them cheap, and then attempts to sell them at a profit.

The syndicator objects, and claims that the enterprising person is violating its copyright by trying to sell the CDs, and goes so far as to claim that since it never relinquished title to the CDs, the enterprising person must give the CDs to the syndicator.

Seems to me that the first sale doctrine applies. Any thoughts?

Also, does the analysis change if the practice of selling these syndicated radio shows is so wide-spread that collector's catalogs are being sold that list the going price for various shows?

Thanks for any help.

Brad Englund
Yakima, WA Received on Thu Sep 14 2000 - 23:43:00 GMT