For example, the distribution right could be infringed when a retailer acquires and sells to the public unlawfully made audio or video tapes.
Although the retailer may not have copied the work in any way and may not have known that the tapes were made unlawfully, they nevertheless infringe the distribution right by the sale.
[3] The doctrine was first recognized by the Supreme Court of the United States in 1908 (see Bobbs-Merrill Co. v. Straus) and subsequently codified in the Copyright Act of 1909.
The defendants, who owned Macy's department store, disregarded the notice and sold the books at a lower price without Bobbs-Merrill's consent.
The Supreme Court held that the exclusive statutory right to "vend" applied only to the first sale of the copyrighted work.
Company held that plaintiff's right to prepare derivative works was infringed and that the first sale doctrine did not protect the defendant under such circumstances.
For example, this exact issue played out in Capitol Records, LLC v. ReDigi Inc., a case involving an online marketplace for pre-owned digital music.
Because the first sale doctrine does not apply to electronic books, libraries cannot freely lend e-books indefinitely after purchase.
Copyright Office stated that "[t]he tangible nature of a copy is a defining element of the first sale doctrine and critical to its rationale.
[13][14] The ruling applies to the European Union, but could indirectly find its way to North America; moreover the situation could entice publishers to offer platforms for a secondary market.
As §109(d) prescribes, first sale doctrine does not apply if the possession of the copy is "by rental, lease, loan, or otherwise without acquiring ownership of it".
Courts have struggled and taken dramatically different approaches to sort out when only a license was granted to the end user as compared to ownership.
The promotional CDs' packaging contained the language: "This CD is the property of the record company and is licensed to the intended recipient for personal use only.
In the case UsedSoft v Oracle, the Court of Justice of the European Union ruled that the sale of a software product, either through a physical support or download, constituted a transfer of ownership in EU law, thus the first sale doctrine applies; the ruling thereby breaks the "licensed, not sold" legal theory, but leaves open numerous questions.
This provision provides the copyright owner an opportunity to stop goods from entering the United States market altogether.
On the surface, §602(a), barring unauthorized importation, would seem to clash with the first-sale doctrine, which permits the resale of lawfully made copies.
A unanimous Supreme Court found that the first-sale doctrine does apply to importation into the US of copyrighted works (the labels), which were made in the US and then exported.
Based on the Quality King case, the 9th Circuit held that "application of first-sale doctrine to foreign-made copies would impermissibly apply" the Copyright Act extraterritorially.
However, the court stated that first-sale doctrine might still apply to a foreign manufactured copy if it was imported "with the authority of the U.S. copyright owner".
[18] However, in Kirtsaeng v. John Wiley & Sons, Inc.,[19] in 2013, the United States Supreme Court held in a 6–3 decision that the first-sale doctrine applies to goods manufactured abroad with the copyright owner's permission and then imported into the US.
The amendment also specifically excluded: With reference to trade in tangible merchandise, such as the retailing of goods bearing a trademark, the first-sale doctrine serves to immunize a reseller from infringement liability.
Alterations or "material differences" don't have to be physical in nature, but may also apply to warranties and service offered by the trademark holder.
The holding notion is if any alteration constitutes "material differences" between goods originating from copyright holder and the sold item.