How does “First Sale” doctrine impact the distribution of DeCSS?
First sale is a statutory provision, 17 U.S.C. 109(a): Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord. The First Sale doctrine divests the copyright holder of control over a particular copy of a work once he has sold that copy. To make first sale meaningful for access-controlled works, a purchaser must be able to transfer his rights to access the work, not only the physical encrypted copy. Defendants are likely to argue that the copyright holder can’t circumvent first sale limitations on his rights simply by adding access controls, so the physical DVD itself should convey the complete authority to access the content.
