This is not likely to be the first time you have read an agreement such as the one above. Given the sheer number of software applications and other digital content that many people interact with on a daily basis, an average person may be a party to an untold number of these sorts of agreements for items he uses every day. A growing shift toward digitally transmitted content, such as eBooks, MP3s, software, and digital movies, has caused a shift in how consumers view their purchases—when a person downloads something from the Internet, is it no different from buying an analogous good from a brick-and-mortar store? What then is to be made of the pop-up legal forms consumers often hastily agree to in order to access their new software?
For over a century, the body of copyright law called the first sale doctrine has worked to strike a balance between the rights granted to a copyright owner and the purchaser of copyrighted goods. According to the doctrine, a copyright owner’s exclusive right to control distribution of a copy of a work ends with that copy’s first lawful sale or transfer. After the first sale, the new owner of the copy is generally free to sell or transfer the copy as he sees fit. Given the important balance it strikes, the first sale doctrine has been regarded with vital importance and has helped build legal foundations for institutions ranging from local second-hand bookstores to eBay. Today this venerable legal doctrine stands at an uncertain crossroads—the body of law is clear and well established with respect to tangible works, yet the new digital economy has thrown many of the past definitions of the first sale doctrine in flux. As such, there exists legal uncertainty as evidenced by cases like Vernor v. Autodesk, Inc. that attempt to clarify a growing legal problem—how should we treat our digital goods?
This Note analyzes the impact of the Ninth Circuit’s recent decision in Vernor and argues that while Vernor could hold many pitfalls for consumer protection in today’s market, as more sales move from transfers of tangible copies to models of digital distribution, decisions like Vernor could help foreshadow a new body of law for a new type of sale.
