By Andrew L. Berrier*
* J.D. Candidate, May
2012, Wake Forest University School of Law.
Excerpt from Vernor v. Autodesk, Inc.: The Last First
Sale?, 46 Wake Forest L. Rev. 867 (Fall 2011)
This is not likely to be the first time you have read an
agreement such as the one above. Given the sheer number of software
applications and other digital content that many people interact with on a daily
basis, an average person may be a party to an untold number of these sorts of
agreements for items he uses every day. A growing shift toward digitally
transmitted content, such as eBooks, MP3s, software, and digital movies, has
caused a shift in how consumers view their purchases - when a person downloads
something from the Internet, is it no different from buying an analogous good
from a brick-and-mortar store? What then is to be made of the pop-up legal
forms consumers often hastily agree to in order to access their new software?
For over a century, the body of copyright law called the
first sale doctrine has worked to strike a balance between the rights granted
to a copyright owner and the purchaser of copyrighted goods. According to the
doctrine, a copyright owner's exclusive right to control distribution of a copy
of a work ends with that copy's first lawful sale or transfer. 2 After the
first sale, the new owner of the copy is generally free to sell or transfer the
copy as he sees fit. 3 Given the important balance it strikes, the first sale
doctrine has been regarded with vital importance and has helped build legal
foundations for institutions ranging from local second-hand bookstores to ...
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