Register of Copyrights Maria Pallante’s Next Great Copyright Act
contemplates a number of shifts in copyright policy in response to the
influence of digital technology on markets for protected works.1 One
centrally important, yet largely unexplored, question is the place of a first sale
doctrine in copyright law’s digital future.2 In her remarks, Register Pallante
righdy notes that the first sale doctrine— the rule that copyright holders cede
their power to control various uses of a copy of a work after sale or transfer
to a consumer—has been part of copyright law for more than a century and
has been embraced by both the courts and Congress.3 Yet when it comes to
applying this rule to digital copies, she defers to the Copyright Office’s 2001
Digital Millennium Copyright Act Section 104 Report, which recommended
against digital first sale out of fears that transfers of works between
consumers could “interfere [] with the copyright owners’ control” over the
right of reproduction