100 years of the first sale doctrine

by John Mark Ockerbloom

On June 1, 1908, 100 years ago today, the US Supreme Court decided Bobbs-Merrill v. Straus, a case that established what would become known as the "first sale doctrine". This doctrine, now codified as part of the US Copyright Act, says that in general the owners of books or other copyrighted works have the right to dispose of them as they see fit (such as by reselling them, giving them away, or lending them out). The copyright holder can still control the right to make copies, make public performances, or other derivative works. But once a reader has bought a book, they can pass it along as they see fit. (Or keep it, or fold it into little origami shapes for their own amusement. They own it, after all.)

This right exists even in the presence of notices to the buyer that claim to conditionally license the work, rather than sell it. Indeed, those kinds of licenses, familiar now to most computer users, were also at issue in the Bobbs-Merrill case. (For historical background, including some examples of old-time "end user license agreements", see a post of mine from a few months ago, "The right to read, circa 1906.")

Despite attempts by many software, music, and ebook publishers to extend control over their products to their buyers, the first sale doctrine is still salient today. Just last month, for example, a federal judge cited the first sale doctrine to uphold the right of an eBay merchant to resell used software. An article in Ars Technica has a link to the decision, and an excellent explanation of the case and the importance of the principles it upholds. Ultimately, as the article points out, the first sale doctrine is what "makes libraries and used book stores possible" without needing the permission of publishers to exist or carry out their missions.

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