In an era when streaming is overtaking downloads, how much does First Sale even matter?

According to Lexology.com, the First Sale Doctrine, known as copyright exhaustion outside the U.S., “prevents the copyright owner’s right to control copies of their work from extending beyond the point at which they receive reasonable remuneration for the copy. Further, it allows the purchaser to have control over their copy, including the right to resell it free from interference by the copyright owner.”

The applicability of First Sale to digital content has been under several microscopes lately, particularly the long-running Capitol Records v. ReDigi. At the recently concluded conference Copyright & Technology 2018, legal analysts considered where the law is headed in this area, and in an era when streaming is overtaking downloads, how much it even matters anymore. CCC’s Chris Kenneally moderated.

In order of speaking appearance, the panelists were –

Richard Mandel, a partner at the Manhattan-based law firm Cowan Liebowitz & Latman focusing on intellectual property matters, including copyright, trademark, unfair competition and Internet-related issues. He is lead counsel for plaintiffs in Capitol Records v. ReDigi.

Jonathan Band, founder of policybandwidth, a law practice specializing in copyright law and policy relating to the Internet, software, libraries, and educational institutions. He is an adjunct professor at the Georgetown University Law Center, and has written extensively on intellectual property and the Internet, including the books Interfaces on Trial, Interfaces on Trial 2.0, and Interfaces on Trial 3.0.

James Grimmelmann, a Professor of Law at Cornell Tech in NYC, where he studies how laws regulating software affect freedom, wealth, and power. He is the author of the casebook Internet Law: Cases and Problems, now in its fifth edition, and is a regular source of expert commentary for major news media including the New York Times, the Wall Street Journal, the Washington Post, and NPR’s All Things Considered.