New Technology and Old Protection: The Case for Resale Royalties on the Retail Sale Used CDs

The development and introduction of audio compact disc technology into the consumer market has been an enormous commercial success. Due to its relatively low production cost, convenient packaging, and near indestructibility, the compact disc has virtually rendered traditional recording media obsolete. In mid-1993 several music retailers announced their intent to capitalize on the most attractive characteristic of the compact disc-its durability-by actively promoting a resale market for used CDs. The retailers\u27 practice of selling used CDs is protected by the first sale doctrine of federal copyright law and currently represents a windfall for them since resold goods fall outside copyright law royalty provisions. The author argues that, although the first sale doctrine may have protected copyright holders adequately during the era of more volatile recording media, the resale of used CDs without remuneration to the artists circumvents the policies underlying the Copyright Act and the Record Rental Act of 1984. The author proposes modifications to federal copyright law that will offer the broader protection necessary for copyright holders who choose to distribute their creative products on non-volatile media such as the compact disc

Ticketing as if consumers mattered

There are continued complaints on matters of event ticketing, particularly in music, despite recent changes in legislation and in practice. This report, a development of ideas following from Waterson (2016), sets out a personal view on the market, focusing on the UK and in particular the music sector, as it now exists. In it, I ask and respond to a self-imposed question- what might an improved ticketing system set out to achieve? In my view, a desirable ticketing system would be one that puts consumers first, both in terms of ease, fairness and choice. Hence the title. Currently, many of the participants in the market do not have consumers foremost in mind, and the lesson from various other markets where technology has shown significant potential is that ultimately, a framework that provides what (most) consumers want wins out

A Material World: Using Trademark Law to Override Copyright\u27s First Sale Rule for Imported Copies

When the Supreme Court held that the first sale rule of copyright law permits the unauthorized importation and domestic sale of lawfully made copies of copyrighted works, regardless of where those copies were made, copyright owners lost much of their ability to engage in territorial price discrimination. Publishers, film and record producers, and software and videogame makers could no longer use copyright law to prevent the importation and domestic resale of gray market copies, and therefore could no longer protect their domestic distributors against competition from cheaper imported copies. However, many of these copyright owners can take advantage of a novel strategy under trademark law in order to reclaim their ability to maintain separate foreign and domestic markets. Copyright owners can invoke trademark law to prevent unauthorized parallel imports of lawful copies of their works as well as domestic distribution of those imported copies, thereby achieving an end-run around copyright’s first sale rule. Thus far this strategy has succeeded, but its validity has not yet been tested in court. Whenever copyright and trademark law overlap, the possibility of using one regime as an end-run around the other raises significant policy concerns. The trademark strategy described here gives copyright owners the power to exclude parallel imports and maintain high prices without conferring any significant public benefit, thus frustrating the goals of copyright law while failing to advance those of trademark law. While current judicial interpretations of trademark law permit this strategy, courts should consider whether their continued adherence to these standards disserves the public interest

A Material World: Using Trademark Law to Override Copyright\u27s First Sale Rule for Imported Copies

When the Supreme Court held that the first sale rule of copyright law permits the unauthorized importation and domestic sale of lawfully made copies of copyrighted works, regardless of where those copies were made, copyright owners lost much of their ability to engage in territorial price discrimination. Publishers, film and record producers, and software and videogame makers could no longer use copyright law to prevent the importation and domestic resale of gray market copies, and therefore could no longer protect their domestic distributors against competition from cheaper imported copies. However, many of these copyright owners can take advantage of a novel strategy under trademark law in order to reclaim their ability to maintain separate foreign and domestic markets. Copyright owners can invoke trademark law to prevent unauthorized parallel imports of lawful copies of their works as well as domestic distribution of those imported copies, thereby achieving an end-run around copyright\u27s first sale rule. Thus far this strategy has succeeded, but its validity has not yet been tested in court. Whenever copyright and trademark law overlap, the possibility of using one regime as an end-run around the other raises significant policy concerns. The trademark strategy described here gives copyright owners the power to exclude parallel imports and maintain high prices without conferring any significant public benefit, thus frustrating the goals of copyright law while failing to advance those of trademark law. While current judicial interpretations of trademark law permit this strategy, courts should consider whether their continued adherence to these standards disserves the public interest

Toward a Digital Transfer Doctrine ? The First Sale Doctrine in the Digital Era

The first sale doctrine in copyright law allows a person who owns a copy of a copyrighted work to sell, lend, or give away the copy to someone else. An owner of a copy of a copyrighted work can take advantage of the first sale doctrine, but a licensee cannot. In today’s digital environment, people are increasingly purchasing digital music files and e-books instead of CDs and physical books. Customers often mistakenly believe they become owners of the digital content they purchase when in actuality they merely become licensees most of the time. Licensing agreements impose use restrictions on digital content. As licensees, customers are unable to invoke the first sale doctrine and legally resell or transfer their digital content to others. This Note explores the feasibility of applying the first sale doctrine to digital content and concludes that a better solution would be to operate a digital secondary marketplace outside the scope of the first sale doctrine. This solution is referred to as a “digital transfer doctrine.” A digital secondary marketplace that provides a portion of revenues from secondary sales to the copyright holders most effectively balances the interests of both consumers and copyright holders