CFP: Intellectual Property v. Personal Property: Owning Digital Media and the First Sale Doctrine

There was a strong sentiment in the "Intellectual property v. personal property: owning digital media and First Sale Doctrine" panel that change was necessary, forthcoming, and inevitable. As Aaron Perzanowski noted, there is a growing tension between consumers and content companies when it comes to the manner in which content is purchased and what consumers expect to be able to do with that content. The panel highlighted that with the rapid pace of technological change today, business models are changing so rapidly that consumer expectations from even a few years ago are no longer applicable.

Specifically addressing the First Sale Doctrine, the panel highlighted that software and bundled services are changing the landscape of content distribution and the manner in which the copyright system constrains consumer’s use of their purchased content. Keith Kupferschmid views the First Sale discussion as a bundle of three separate problems: first, the domestic vs. international exhaustion issue addressed in the Kirtsaeng case; second, the license vs. sale issue addressed in the Vernor case in the 9th circuit; and third, the digital first sale issue addressed in the ReDigi case.

Nancy Sims expressed "mild optimism" toward the market creating a viable solution for the majority of consumers. However, her concerns lie with the non-majority. She sees a strong risk that consumers who have difficulty accessing content due to disability or lack of technological resources will be left behind in these new content models. Further, there are new privacy concerns that are created in environments where users’ access and usage of content is tracked.

While it remains unclear what solutions will best address these issues, it is clear that change is coming.