First sale doctrine

One of the few checks on the rights of copyright holders to control the disposition of their intellectual property. The first sale doctrine allows an individual who knowingly purchases a copyright work the right to later sell that copy of the work regardless of the wishes of the copyright holder. It is this protection that allows for the existence of both the used book and the video rental industries in the United States.

The idea underlying the first sale doctrine is that after purchasing a book the purchaser actually owns that copy of the book and can do with it whatever the hell he wants to. While this may seem obvious, it is exactly opposite from the practice in most of the Western world. In nations that are members of the European Union intellectual property creators retain moral rights to their works and can control the disposition of them even after first sale.

First sale also doesn't typically apply to software, because software is usually licensed rather than sold. Since a license to use is all that's granted no sale has taken place, thus first sale does not come into play. Nor does it apply to newer dvd (and perhaps other media, but I've not seen any) titles which are also explicitly licensed rather than being sold. I've not been able to uncover any references that indicate one way or the other whether print media can be distributed while only granting a license, but it would fit the logic of the entire licensing position.

As a college student, I really came to love used record and book stores. Sometimes I'd find the most amazing books and albums that had been out of print for years. And sometimes, I'd be able to find brand spankin' new stuff that I just couldn't afford at Borders or Tower Records.

Later on, I was still broke but in grad school studying journalism. I started to learn about copyright law. More important, I started to get to know authors who were just as broke as I was but who didn't have a light at the end of their financial tunnel in the form of earning a commercially viable degree. Copyright was more than an abstract concept to them -- article sales and royalties paid their rent and kept food on their table.

Armed with just enough copyright knowledge to keep me out of court for libel and my new insights into the working author's life, I saw used bookstores and CD shops in a whole new light. All these books and albums for sale -- and no money to the publisher! No royalties to the authors! Holy shit! Was the FBI gonna come busting down the doors of Half Price Books for copyright infringement someday? Because it all certainly seemed like a violation of the spirit of copyright -- the stores were doing a pretty brisk business, and every used copy sold was money that never reached the creator. But still, my author friends visited the used shops just like everybody else did, and for the same reasons: they wanted stuff that was not available elsewhere, or they just couldn't afford to pay for new.

While some big-name musicians like Garth Brooks periodically raised a stink about used CD sales, it seemed that everyone turned a blind eye to the whole thing because cracking down on used bookstores would create far more problems than they'd solve.

As it turns out, selling used books, CDs, movies and software is perfectly legal due to what's known as the "first sale doctrine".

Section 109 of the U.S. Copyright Act codifies this doctrine. Anyone who is a lawful owner of a physical copy of a copyrighted work can do as they please with that physical copy. They can destroy the copy, paint it pink, put blinkenleits all over it, rent it to somebody, or transfer ownership by giving it away or selling it. They can't, of course, duplicate the copyrighted content or reuse it or sell it in some way -- the first sale doctrine deals with the physical object, not the intellectual expression it contains.

However, when cassette tape players and recorders came along, the U.S. recording industry started to fear for their profits. (Sound familiar? You bet!) So, they put their vast financial resources to work influencing legislators. In 1984 the Record Rental Amendment was passed on the logic that renting out albums made it too easy for people to copy music without paying for it, thus dreadfully harming the RIAA's copyrights.

As a result of that amendment to Section 109, you can't rent an audio CD or tape or phonograph. Due to legal extrapolations of the Record Rental Amendment combined with the fact that software is often set up for licensing rather than sale, you can't rent a piece of software, either ... unless you're talking about a video game, which is not seen by the courts as being software. At any rate, that's why you can't rent the latest Britney Spears opus at Blockbuster along with Fatal Frame for your Playstation.

Fortunately, the RIAA didn't take the step of preventing libraries from lending out music albums, nor have they seriously attempted to stop the sale of used CDs. However, all that could change if they decide that these activities are excessively limiting their profit margins.

The book publishing industry, by contrast, has neither the lobbying power nor the motivation to try to change the laws as they exist. It's perfectly legal to rent a novel, for instance, but sadly reading just isn't popular enough to support the development of a Bookbusters chain.

panamaus says Wouldn't it be interesting to see a big city public library open up a flashy storefront 'branch' across the street from Blockbuster, where they lent a huge collection of movies and music for free? They could finance the venture from late return fees alone. ;)

Unfortunately, abuse of the first sale doctrine is fairly rampant in the small-press bookselling world. This is a real sore spot with me, and is going to take some explaining, so get comfortable.

You have possibly encountered on-line booksellers who offer copies of books (often books they did not themselves publish) for outlandish prices. I myself have seen copies of my Cemetery Dance collection Things Left Behind going for as much as $1,750.00 (which, by the way, is a good deal more than I received for writing it; not bitching about what Rich Chizmar paid me for it, not at all, but I would dearly love to have more than one copy of my first book but that ain't gonna happen because I can't afford the prices many places are charging for it). The recent sold-out release of Borderlands 5 turned up at several on-line auctions within days of its publication with bids starting -- starting -- at between $200.00 and $500.00.

There are some who mistakenly think this sort of thing is illegal; it isn't. It is allowed under the first sale doctrine; whoever first purchases the physical copy of a copyrighted work (a book, a DVD, VHS tape, CD, etc.) has the right to do with that copy whatever they want, including transfer ownership of that physical copy in any manner they choose. They can give it away, sell it to some place like Half-Price Books, or offer it up for on-line auction. The First Sale Doctrine deals with the physical object, not the intellectual or artistic expression contained within.

Here's what pisses me off about this: there are some booksellers and individuals who will purchase and hoard multiple copies of a book with no concern for the work, the author, or the work's fans -- they couldn't give less of shit about the quality of the stories or the novel. What they're concerned with is obtaining as many physical copies as possible because (as was the case with Borderlands 5) a particular book might sell out very quickly, and they, in turn, can sell their copies at a price that is sometimes as much as 700% higher than what they paid for it originally.

When confronted with their unapolegetic avarice (and avarice it is, make no mistake about that), they will inevitably defend their actions by claiming that they've every right to turn a profit on their investment...and then probably have the nerve to bitch about having to pay two bucks a gallon for gas because OPEC are a bunch of greedy bastards. What's wrong with this picture?

Understand something: I am not condemning specialty-press publishers like, say, Donald Grant, who produce exquisite (and justifiably expensive) limited editions of books geared toward book collectors -- those rare birds who have a deep and abiding respect both for the physical object and the work contained within and who, it should go without saying, can afford these editions. Nor am I condemning any specialty-press publisher who at a later date offers up copies of a book they've previously published at a higher price: after all, it's their product, and if they can find a buyer for their product, more power to 'em.

I am also not condemning those who offer up for auction or re-sale books with the intent of using the money to assist others who are struggling with financial hardship (the upcoming auction to benefit Charles L. Grant being a prime example; I donated a book of mine and hope like crazy that the bids climb into the hundreds for it because Grant is a wonderful guy and superb writer and shouldn't be saddled with spirit-breaking worries over medical bills).

My problem lies with those who buy books solely for the purpose of re-selling them at obscenely inflated prices so as to fatten their personal pockets just because they can.

No, it isn't illegal, but in my book it is and always will be reprehensible and immoral. Which is why I do not buy books from sellers who engage in this practice, be they on-line or in the dealers' room at a con. As far as I'm concerned, it's price gouging if I see a book selling at more than twice its original asking price -- I'm not completely unreasonable about this; I realize that booksellers have to make a certain amount of profit to stay in business and cover basic operating costs, so doubling the price of a sold-out or out-of-print book strikes me as equitable and fair, but beyond that -- I walk away. And God help 'em if they have the nerve to ask me to sign any books for them so they can jack up the price even more.