Another supersmart IP Colloquium from Prof. Doug Lichtman, this time on the first sale doctrine and comparison with antitrust law. This one was economics-heavy, and very interesting. Unfortunately, there was not really any spirited pro-first sale doctrine point of view - everyone seemed to be perplexed as to its utility and origins - and Doug concludes basically that it should be tossed. Let's get a libertarian in the next lineup, Doug!
The first sale doctrine says that if someone sells you a book, you can resell it without paying the copyright owner an additional royalty. I think California is the only state with a resale right for works of fine art (known as a droit de suite).
The first sale doctrine basically tracks the common law invalidation of restraints on the alienability of property.
The droit de suite gives a creator the right to a piece of the action each time the object in which a copyrightable work is embedded is resold.
IMHO, and I have nothing against the French or even Californians, but tossing the first sale doctrine would subject us to eternal digital servitude to a copyright owner and machine-creating industry - the ditigal nightmare that so many technologists keep warning us about. I think Doug's prognostications about maximizing consumer welfare won't work in reality.
But Doug, I'll still drink French and California wines. And you were right about the result in the Tenenbaum case. But I'm not going to support a new copyright toll bridge for consumers to cross if they want to dump their gear on Ebay, on the contrary, any industry resale restraints should be abolished and penalized. There is already way too much tying and too many restraints on cross-platform interoperability for the average consumer.
SCOTUS will be considering the first sale doctrine in the upcoming Costco/Omega Watch case, so let's hope that fans of the first sale doctrine will articulate their case.
Check out IP Colloquium here. Anyone listening and remembering the code words will get free CLE credit.