New York Law Journal "Reseller Beware: Digital Media Files and the First Sale Doctrine" by Steve Kramarsky

January 14, 2019

New technologies, and the business models that accompany them, often create challenges for existing law, and nowhere is that friction more evident than where digital content bumps into the federal copyright law intended to regulate it. Much of current U.S. copyright law was drafted decades ago—before digital content creation and distribution tools were widely available to the public. Even the Digital Millennium Copyright Act (the DMCA), designed specifically to “update” U.S. copyright law for the Internet age, is now 20 years old. So it isn’t surprising that the underlying “exclusive rights” protected by the copyright law—some of which have not changed much in over two centuries—are not always a good fit for content paradigms. For over 200 years, the Copyright Act has granted authors and owners the exclusive right to control reproduction of their works. But the scope of that right has shifted as the statute has been revised and the case law around it has developed. As the concept of “reproduction” changes, the law sometimes struggles to keep up.

 

For example, the relevant statutes concerning reproduction of copyrighted materials were drafted, and the body of case law developed, with a tangible medium of expression in mind—a book, a record, a compact disc or some other object. Historically, the question of whether and when a “reproduction” occurred was generally clear, because a physical object was created that either that either was or was not a copy of the protected work. But the introduction of digital media introduced new challenges: At what point, exactly, is a digital file “reproduced” and how can copyright holders tell? The DMCA provides the legal context for some digital media use cases, but it is fairly specific in the new rights it creates, and it cannot begin to cover every new innovation. Courts must address those as they arise. A recent case decided by the Second Circuit, Capitol Records v. ReDigi, 910 F.3d 649 (2d Cir. 2018), provides useful insight into how courts approach these issues.

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