Monday, April 27, 2009

The First Sale Doctrine and Ebooks

This is a very general overview for readers and authors, not an exhaustive legal discussion on the subject. If you want an exhaustive overview complete with all the legalese and laws, I suggest the articles I have links to at the bottom.

The First Sale Doctrine Defined:

“First Sale Doctrine refers to the right of a buyer of a material object in which a copyrighted work is embodied to resell or transfer the object itself. Ownership of copyright is distinct from ownership of the material object. Section 109 of the Copyright Act permits the owner of a particular copy or phonorecord lawfully made under the Copyright Law to sell or otherwise dispose of possession of that copy or phonorecord without the authority of the copyright owner.

Commonly referred to as the "first sale doctrine," this provision permits such activities as the sale of used books. The first sale doctrine is subject to limitations that permit a copyright owner to prevent the unauthorized commercial rental of computer programs and sound recordings.” US Government Publication 04-8copyright.

One of the ongoing discussions about copyrighted ebooks is whether the “first sale doctrine” can be applied to a digital book. Can a person sell a used copyrighted ebook?

Right now, the US Government as well as most other governments say no. (see iTunes White Paper link below)

Look at the US Government definition above to see one of the reasons why. First sale doctrine only applies to a “material object” like a paper book. A copyrighted digital book isn’t an object, it’s content, and content can’t be copied and, therefore, can’t be resold.

Also, copyrighted digital content like music, computer software, and ebooks aren’t technically sold, they are leased according to the licensing terms a person agrees to when they put their money down for the song, etc.

At ebook distributor sites like, the terminology “sell” and “buy” are used, but in their FAQs, they say you are only leasing an ebook, not buying the content, so you can’t resell it, etc.

The difference between “lease” and “buy” is also used as a justification of why an ebook can’t be resold.

All those who say that “first sale doctrine” applies to copyrighted ebooks are wrong from a legal perspective.

Only lawsuits, the courts, or Congress can change this, but most of the money is on the side of the copyright leasers -- the publishers, music and movie companies, etc., so I doubt “first sale doctrine” will ever apply to copyrighted ebooks.


Amazon Kindle and Sony Reader Locked Up: Why Your Books Are No Longer Yours, Columbia Science and Technology Law Review.

Explores the various issues of sale versus license, first sale doctrine, etc.

iTunes White Paper

The last sections explain various governments’ stances on first sale doctrine issues.

US Government Publication 04-8copyright.

Copyright, as well as “first sale” and “fair use,” defined and explained.

{NOTE: A blog entry is copyrighted material, but for this blog entry, I give you my permission to copy it, pass it around, post it on your blog, or whatever. I’d appreciate a link back, but that isn’t necessary. You are also free to remove my name.

If you change any of the content, you must remove my name.}


Rowena Cherry said...

Excellent explanation, Marilyn.
Thank you.

Anonymous said...

Thanks, Marilynn. I posted a link to this article on my blog. This is information every writer and reader should know.

Walter Jeffries said...

Something I don't like about eBooks is the drying up of the used books market that it represents. eBooks are not worth $14 since I don't have resale rights like I do with a used copy of a physical book. More like $5 or so. In a very similar vein I like to be able to loan my books out. My sons enjoy reading the same sorts of books I do. Sometimes my wife wants to read a book I've got. Or my daughter. Or my brother might. I read a good book and then they want to. With an eBook they've got to buy it separately and then we've got three copies of the same book kicking around the house and worse yet we have to have multiple readers in the household, all compatible. I also don't like the temporary nature of the eBooks that are teathered with DRM - if the business goes out then I lose my books and this does happen. Then there is the issue of what happens to my library of ebooks when the file format changes? It will change. My ebooks will get orphaned. This has happened over and over throughout history with computer data. No thanks. These issues need resolution.

Jared Newman said...

Hi Marilynn,

Thanks for linking from PC World. It's an interesting take, but I wonder if there isn't a way to allow second-hand e-book sales even if the first-sale doctrine doesn't apply.

For instance, by leasing the book in question, perhaps a user could get back a portion of what they paid by transferring ownership back to the distributor, who in turn transfers to the buyer. Kind of like a deposit that you get back when you're done with the book. I'm not a lawyer so I may be totally off base, but my feeling is that if publishers and distributors wanted to make it happen, they could.

Marilynn Byerly said...

Jared, unless an agreement could be made with the publisher and the author in the same manner as the Nook allows sharing books, it could never happen.

Right now, very few publishers will allow book sharing via the Nook, and I doubt many would look favorably on a used book program.

As frustrating and hard as it is for authors to get take downs of pirated ebook material, they would fight to the death the possibility of legally sold used ebook since one ebook can be duplicated thousands of times and be sold "used" each time, and there is no way to prevent this.