America’s entertainment industry, and the creative talent that drives it, is a national treasure. Equally valuable, however, is America’s drive and commitment toward technological innovation. These two sectors have been in tension since at least 1908, when the U.S. Supreme Court was asked to determine whether the makers of piano rolls for automatically playing pianos had to pay royalties to the composers. Since that time, the entertainment industry has continued to use copyright law to resist advances in technological innovation that it views as a threat to its existing business models. This Note seeks to provide the necessary context and considerations for policymakers and courts to consider as they grapple with digital copyright and, specifically, the development of a digital first sale doctrine. It outlines the legal landscape of digital sales, including the landmark ReDigi decision, the problems faced in applying the present copyright laws to the current digital marketplace, and the use of end user license agreements (EULA) to turn what have traditionally been deemed “sales” of content into nonexclusive licenses. This Note then examines the importance and feasibility of a digital first sale doctrine and proposes a framework for a digital first sale doctrine that uses standards-essential technology and digital watermarking.
Marco Puccia, Copyright, Consumerism, and the Cloud: Proposing Standards-Essential Technology to Support First Sale in Digital Copyright, 38 SEATTLE U. L. REV. 785 (2015).
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