Code-ifying Copyright: An Architectural Solution to Digitally Expanding the First Sale Doctrine

March 1, 2013

As the internet blossomed into ubiquity, piracy mushroomed with it. To control the threat, Congress passed the Digital Millennium Copyright Act (DMCA). The DMCA created a number of safeguards for copyright holders. But the DMCA purposely ignored whether copyright holders could restrict future transfers of their legally purchased work—a concept known in physical property as the “first sale doctrine.” As a result, copyright holders began using licenses to control future transfers of their digital property.

This was not the first time copyright holders have attempted to gain greater control over their work. The history of copyright law demonstrates a pattern of struggle between competing interests—with public access to creative works on one side and the need for incentive to create on the other side. Over time, courts and legislators have chosen different responses to this struggle. Each has encountered varying levels of success. But all have dealt exclusively in physical property.

The world of physical property is different from that of digital property for two reasons. In the physical world, it is difficult and costly to duplicate works, and over time, these works degrade. By contrast, in the digital world, copying a book, a song, or a movie requires only a couple of keystrokes and a mouse click. Additionally, copying a digital file does not affect its quality. In light of these differences, scholars have offered a number of solutions, focusing on the difference in copying difficulty between physical and digital property. This Note examines the history of copyright law to understand the various solutions available to lawmakers when dealing with the threat of piracy and considers the possibility of a solution focusing instead on the degradation difference between physical and digital property.

March 2013

No. 4