BTLJ is excited to welcome Aaron Perzanowski of Case Western Reserve University Law School and Jason Schultz of New York University Law School on April 3–4, 2014 to the 18th Annual BTLJ/BCLT Symposium: The Next Great Copyright Act.
This is a summary of the authors’ topic of discussion and forthcoming article:
The shift to a digital distribution model, from one premised on selling physical artifacts to one defined by transferring data, is among the most important changes in the markets for copyrighted works since the enactment of the 1976 Copyright Act. The disconnect between our current statutory rules and this new reality of the copyright marketplace is particularly evident when it comes to the question of exhaustion. The first sale doctrine in Section 109 was constructed around a mode of distribution that is rapidly becoming obsolete. As a result, the benefits and functions it has long served in the copyright system are at risk. Building on our earlier work, this Article will argue that a meaningful exhaustion doctrine should survive the digital transition. After explaining the two primary hurdles to digital exhaustion under the existing statutory regime, we outline two possible approaches to legislating digital exhaustion, concluding that a flexible standards-based approach that vests considerable authority with the courts is the better solution.