The First Sale Doctrine, codified in section 109(a) of the Copyright Act, generally permits the owner of a lawfully made “copy” or “phonorecord” containing a copyrighted work to resell the copy or phonorecord without violating the copyright holder’s distribution right. For example, if someone purchases a music album on a compact disc, that person has a right to resell that copy of the album. For years, however, it has been unclear how the First Sale Doctrine would apply to digital works. Indeed, Nimmer notes that “the voyage from low- to high-tech often brings confusion in its wake. That phenomenon has played out in the context of case law applying the [First Sale Doctrine] to computer software.” Like computer software, confusion has also surrounded the application of the First Sale Doctrine to digital media, such as songs purchased and downloaded from iTunes. The recent rulings by the Second Circuit in Capitol Records LLC v. ReDigi Inc. provides some clarity on this issue.
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