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For a “digital” First Sale Doctrine

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As expertise advances, the points of our lives which are performed out within the , each private and professional, are ever-rising.


Kathleen Farro (Independent) recently published an article entitled, The ‘Digital First Sale Doctrine’: A Necessary Piece of the Digital Estate Planning Puzzle, (July 15, 2014).  Provided below is the abstract from SSRN:

As technology advances, the aspects of our lives that are played out in the digital realm, both personal and professional, are ever-increasing. We conduct our banking online, we communicate with friends, family and business associates via email and social networks, and we create original, creative works on internet-based applications. Our creative work, professional work, and practical communications that were once limited to oral communication and paper records are now captured, conveyed, and stored digitally. Trading tangible media for the digital realm has become commonplace. Some changes are as simple as the box of photographs stored in the closet that are being replaced by expansive online libraries of digital photographs. On a grander economic scale, for example, is the marketability of a celebrity persona that was once measured by his or her ability to promote products in a newspaper print ad or on a television commercial. Now, the number of people accessing that celebrity’s life, opinions and preferences in the digital realm can have an equal or greater financial effect. 

While this evolution can have many advantages in our every day lives – making thinking, doing, communicating, and working - easier, quicker, more efficient, and less expensive, it can also jeopardize things that we may take for granted in our purely "tangible" life. The digital age may decrease our actual, human interactions and compromise our privacy. It may reduce what may be considered "our property" in the tangible world to something owned and controlled by others when carried out in the digital realm. Within the conversion to a digital world, our property rights, and thus our ability to convey and devise those to others, may, quite literally, get lost in translation. 

The property rights we most frequently give up to carry on life in the digital realm are those that are carried out and promulgated within a framework of copyright-protected material. For example: email, Facebook, Twitter, and various "gaming" activities are copyright-protected. 

For estate planners, these facts present hurdles to carrying out the wishes of those who desire to transfer some of their digital "property" to their loved ones, friends, or others either by devise or within an inter vivos trust. For example, a man may spend years building an iTunes library of music. At $0.99 to $1.29 a song, and likely more in the future, he may invest thousands of dollars over the years in this collection. Upon his death or disability, he may wish to transfer this library to his children. The current law does not allow this; the point at which he himself is unable to use the library, there is no way in which any party can lawfully utilize that song library.

This paper will examine the property rights individuals generally hold in copyrighted material and digital copyrighted material. It provides a thorough explanation of the First Sale Doctrine as applied to tangible media and the limitations on its applicability in the digital realm. It then goes on to explain Congress’s first attempt at incorporating digital media into the First Sale Doctrine in 1998 – what conclusions it drew and why Congress declined to update the doctrine. Between technological advancements, court cases in the U.S. and overseas, and various other legal principles and practices, there are now substantial policy bases for revisiting a "digital" First Sale Doctrine. The implementation of a digital First Sale Doctrine would have far-reaching effects; however, for our purposes, this doctrine would at least provide individuals with assurance that their digital property can be preserved to pass along to others.


We conduct our banking on-line, we talk with pals, household and enterprise associates through electronic mail and , and we create authentic, artistic works on web-based mostly functions. Our inventive work, skilled work, and sensible communications that have been as soon as restricted to oral communication and paper information are actually captured, conveyed, and saved digitally. Trading tangible media for the digital realm has turn out to be commonplace. Some adjustments are so simple as the field of images saved within the closet which are being changed by expansive on-line libraries of digital images. On a grander financial scale, for instance, is the marketability of a superstar persona that was as soon as measured by his or her capacity to advertise merchandise in a newspaper print advert or on a tv industrial. Now, the variety of folks accessing that movie star’s life, opinions and preferences within the digital realm can have an equal or larger monetary impact.

While this evolution can have many benefits in our every single day lives – making considering, doing, speaking, and dealing – simpler, faster, extra environment friendly, and cheaper, it will probably additionally jeopardize issues that we could take with no consideration in our purely “tangible” life. The digital age might lower our precise, human interactions and compromise our privateness. It might cut back what could also be thought of “our property” within the tangible world to one thing owned and managed by others when carried out within the digital realm. Within the conversion to a digital world, our property rights, and thus our potential to convey and devise these to others, could, fairly actually, get misplaced in translation.

The property rights we most steadily give as much as stick with it life within the digital realm are these which can be carried out and promulgated inside a framework of copyright-protected materials. For instance: e mail, , , and numerous “gaming” actions are copyright-protected.

For property planners, these info current hurdles to finishing up the desires of those that want to switch a few of their digital “property” to their family members, associates, or others both by devise or inside an inter vivos belief. For instance, a man might spend years constructing an iTunes library of music. At $zero.ninety nine to $B.29 a tune, and certain extra sooner or later, he might make investments 1000’s of dollars through the years on this assortment. Upon his loss of life or incapacity, he might want to switch this library to his kids. The present regulation doesn’t enable this; the purpose at which he himself is unable to make use of the library, there is no such thing as a means during which any social gathering can lawfully make the most of that track library.

This paper will study the property rights people typically maintain in copyrighted materials and digital copyrighted materials. It offers a thorough rationalization of the First Sale Doctrine as utilized to tangible media and the constraints on its applicability within the digital realm. It then goes on to clarify Congress’s first try at incorporating digital media into the First Sale Doctrine in 1998 – what conclusions it drew and why Congress declined to replace the doctrine. Between technological developments, court docket circumstances within the D.R. and abroad, and varied different authorized ideas and practices, there at the moment are substantial coverage bases for revisiting a “digital” First Sale Doctrine. The implementation of a digital First Sale Doctrine would have far-reaching results; nonetheless, for our functions, this doctrine would a minimum of present people with assurance that their will be preserved to move alongside to others.

Kathleen Farro (Independent) not too long ago revealed an article entitled, The ‘Digital First Sale Doctrine’: A Necessary Piece of the Digital Estate Planning Puzzle, (July 15, 2014).  Provided under is the summary from SSRN:

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Eleanore

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