First Sale or Exhaustion Doctrine

This chapter describes how courts and lawmakers struggle with concepts of tangibility and intangibility as they apply the first sale or exhaustion doctrine to new technological environments. The difficulty of applying the exhaustion or first sale doctrine to digital works relates in great part to the difficulties of adapting traditional concepts of personal property, goods, services, sales, and licences to copies of copyright works and other information products, in an ever-changing technological environment (identified in Chapter 4). After looking at the main theoretical justifications of the first sale or exhaustion doctrine, and concluding that the property theory is the most plausible explanation of the first sale doctrine, the chapter questions the extent to which the doctrine of exhaustion or first sale will remain relevant as users increasingly experience copyright works through services and decreasingly through individualized copies.