Die Hard (and Pass On Your Digital Media): How the Pieces Have Come Together to Revolutionize Copyright Law for the Digital Era

Today’s modern world is defined by its digital assets. Books, movies, music, games, and even currency are available in digital format. Brick and mortar stores are slowly being replaced by online marketplaces. And yet despite these innovations in technology and media, the law lags far behind the digital age. One of the most glaring areas of the law in need of an update is the First Sale Doctrine, the legal right allowing downstream distribution of copyrighted material. An update to the First Sale Doctrine has not been seriously contemplated since 2001, when the Copyright Office found the time for an update was not ripe. The Copyright Office’s rationale was three-fold: digital media was just developing, restrictive licensing was not yet threatening ownership, and no technology existed that would facilitate a true “Digital First Sale.” This Note argues that these initial objections are no longer applicable. Digital media has grown rapidly, but is distributed under ultra-restrictive licenses. Finally, a recent court case demonstrates technology has emerged that can serve as the final piece needed to revolutionize copyright for the digital era. 1. Letter from Thomas Jefferson to Samuel Kercheval (Jul. 12, 1816), available at http://memory.loc.gov/cgi-bin/ampage?collId=mtj1&file Name =mtj1page049.db&recNum=254. 2. 2 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 645 (J.P. Mayer ed., 1969). Case Western Reserve Law Review·Volume 64·Issue 4·2014 Die Hard (and Pass On Your Digital Media)