Toward Cultural Democracy: Digital First Sale Doctrine and Copyright

Abstract

Economic efficiency has been the dominant justification for copyright protection in the United States. Challenging that narrow perspective, this study argues that cultural democracy provides a broader, more encompassing framework for reforming copyright laws in support of users’ access to and use of creative works. The study demonstrates how the normative values promoted by cultural democracy are synonymous with the socially beneficial effects of the first sale doctrine. Additionally, the study contextualizes and further elaborates the notion of cultural democracy by providing more concrete examples of how cultural democracy plays out in practice. In doing so, this study focuses on individuals’ use of ebooks and the role of public libraries in the digital age.

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Toward Cultural Democracy: Digital First Sale
Doctrine and Copyright
Yoonmo Sang
To cite this article: Yoonmo Sang (2016) Toward Cultural Democracy: Digital First
Sale Doctrine and Copyright, Communication Law and Policy, 21:2, 221-249, DOI:
10.1080/10811680.2016.1166031
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21 COMM.L.&POL’Y221–249 (2016)
Copyright ©Taylor & Francis Group, LLC
ISSN: 1081-1680 print / 1532-6926 online
DOI: 10.1080/10811680.2016.1166031
TOWARD CULTURAL DEMOCRACY:DIGITAL
FIRST SALE DOCTRINE AND COPYRIGHT
YOONMO SANG*
Economic efficiency has been the dominant justification for copyright
protection in the United States. Challenging that narrow perspective,
this study argues that cultural democracy provides a broader, more
encompassing framework for reforming copyright laws in support of
users’ access to and use of creative works. The study demonstrates how
the normative values promoted by cultural democracy are synonymous
with the socially beneficial effects of the first sale doctrine. Addition-
ally, the study contextualizes and further elaborates the notion of cul-
tural democracy by providing more concrete examples of how cultural
democracy plays out in practice. In doing so, this study focuses on in-
dividuals’ use of ebooks and the role of public libraries in the digital
age.
Since enactment of the Copyright Act of 1790, U.S. lawmakers have con-
tinuously enlarged copyright protection in favor of copyright holders by
extending the term of protection. In doing so, they have relied mainly on
dominant justification — so-called “economic efficiency.” Proponents of
economic efficiency claim that the goal of copyright legislation is to max-
imize the wealth of society.1When rationalizing copyright legislation,
they place a high value on the economic efficiency or welfare of society
∗Assistant Professor, Department of Strategic, Legal and Management Com-
munication, Howard University. This article is drawn from the author’s Ph.D.
dissertation at the University of Texas at Austin.
1See WILLIAM M. LANDES &RICHARD A. POSNER,THE ECONOMIC STRUCTURE OF
INTELLECTUAL PROPERTY LAW (2003); Stephen Breyer, TheUneaseCaseforCopyright:
A Study of Copyright in Books, Photocopies, and Computer Programs,84H
ARV.L.REV.
281 (1970); Frank H. Easterbrook, Intellectual Property is Still Property,13H
ARV.J.L.
&P
UB.POL’Y108 (1990).
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222 Y. SANG
as a whole.2This reasoning was reflected in Mazer v. Stein, decided by
the Supreme Court of the United States in 1954: “The economic phi-
losophy behind the clause empowering Congress to grant patents and
copyrights is the conviction that encouragement of individual effort by
personal gains is the best way to advance public welfare.”3
Although there is disagreement within the framework of economics
over what constitutes the proper level of copyright protection,4regard-
less of their position on economic efficiency, most scholars agree that
copyright is a mechanism that addresses two fundamental features of
the public good: non-excludable and non-rivalrous.5Intellectual and cre-
ative works are non-excludable, in that once they are created and made
available, it is difficult to prevent others from enjoying them. Intellec-
tual works are also non-rivalrous, in that one person’s use of a creative
work does not reduce others’ ability to enjoy it. In other words, the
use of creative expression in this study does not compete with that of
others. It is commonly said that intangible goods, such as music and sci-
entific knowledge, are non-rivalrous and non-excludable and subject to
the so-called “free-rider” problem; therefore “the market by itself cannot
provide a proper motivation for the production of intangible goods.”6
The granting of financial incentives to creators for new works is im-
portant. However, at the same time, cultural progress cannot move for-
ward without a mechanism that secures the ability of users to access
creative works that already exist. In recognition of those competing
interests, copyright scholars, courts and policymakers argue that copy-
right law is intended to seek a balance between providing incentives
to create and promoting access to creative works.7From an economic
perspective, finding the optimal balance between incentives and access
is a challenge.8To date, efforts to find a balance have relied on the
law-and-economics framework that focuses on economic efficiency.
This narrow reasoning mostly ignores other normative values that in-
clude equitable access to creative works, distribution, and furthering the
2See, e.g., Oren Bracha & Talha Syed, Beyond Efficiency: Consequence-Sensitive The-
ories of Copyright,29B
ERK.TECH. L. J. 229 (2014).
3347 U.S. 201, 219 (1954).
4For a detailed discussion of the disagreement, see Neil Weinstock Netanel, Copyright
and a Democratic Civil Society 26–62 (1998) (unpublished J.S.D. dissertation, Stanford
University).
5See TARLETON GILLESPIE,WIRED SHUT:COPYRIGHT AND THE SHAPE OF DIGITAL
CULTURE 25 (2007); Minjeong Kim, The Representation of Two Competing Visions on the
Fundamentals of Copyright: A Content Analysis of Associated Press News Coverage on
Copyright, 2004-2009,16C
OMM.L.&POL’Y49, 61-62 (2011).
6Kim, supra note 5, at 62.
7See David W. Barnes, The Incentives/Access Tradeoff ,9NW.J.TECH.&INTELL.
PROP. 96 (2010).
8See Bracha & Syed, supra note 2, at 237–40.
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DIGITAL FIRST SALE DOCTRINE 223
cultural participation of ordinary people.9As Madhavi Sunder argues,
the law-and-economics paradigm “(1) . . . fails descriptively as a com-
prehensive account of extant legal doctrine, (2) . . . fails prescriptively
as the exclusive basis for deciding the important intellectual property
conflicts of the day, and (3) . . . fails to capture fully the dynamics of cul-
tural creation and circulation.”10 In other words, the law-and-economics
paradigm focuses on the overall welfare as measured by monetary value.
The basic tenet of the economic efficiency approach is the “maximiza-
tion of cultural output,”11 a calculus that does not confront “distinctions
between the developed and developing worlds, the urban and the rural,
and women and men, or among blacks, Asians, Latinos, and whites.”12
As Henry Jenkins notes, “Current copyright law simply doesn’t have
a category for dealing with amateur creative expression . . . . It surely
demands reconsideration as we develop technologies that broaden who
may produce and circulate cultural materials.”13 Many creators partici-
pate in the creation and circulation of creative works without economic
motives.14 For example, the profit motive does not serve well the desire
for widespread distribution among developers of free and open software
and authors of academic papers.
In recognition of limitations of economic efficiency framework, a grow-
ing body of scholarship on copyright calls for the need to expand the
economic paradigm’s narrow focus.15 Alternative views of the goals of
copyright law, as Madhavi Sunder points out, pay greater attention to
the word “culture.”16 Such phrases as “cultural environmentalism,” “free
culture,” “democratic culture,” and “cultural democracy” elaborate nor-
mative values within the context of copyright.17 Normative values such
as self-determination, political democracy, and cultural democracy are
9See SIVA VAIDHYANATHAN,COPYRIGHTS AND COPYWRONGS:THE RISE OF INTELLEC-
TUAL PROPERTY AND HOW IT THREATENS CREATIVITY (2001).
10MADHAVI SUNDER,FROM GOODS TO A GOOD LIFE:INTELLECTUAL PROPERTY AND
GLOBAL JUSTICE 25 (2012).
11Id. at 29.
12Id. at 30.
13HENRY JENKINS,CONVERGENCE CULTURE:WHERE OLD AND NEW MEDIA COLLIDE
198 (2006).
14See YOCHAI BENKLER,THE WEALTH OF NETWORKS:HOW SOCIAL PRODUCTION TRANS-
FORMS MARKETS AND FREEDOM 60 (2006).
15See Bracha & Syed, supra note 2, at 232. See also SUNDER,supra note 10, at 31.
16SUNDER,supra note 10, at 6.
17See JAMES BOYLE,THE PUBLIC DOMAIN:ENCLOSING THE COMMONS OF THE MIND 241
(2008); LAWRENCE LESSIG,FREE CULTURE:HOW BIG MEDIA USES TECHNOLOGY AND THE
LAW TO LOCK DOWN CULTURE AND CONTROL CREATIVITY 30 (2004); Jack Balkin, Digital
Speech and Democratic Culture: A Theory of Freedom of Expression for the Information
Society,79N.Y.U.L.R
EV. 1, 3 (2004); Bracha & Syed, supra note 2, at 253-56.
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224 Y. SANG
valued by democratic copyright theorists who envision copyright as a
tool for protecting copyright’s democratic principles.18
To be sure, democratic copyright theorists do not deny the importance
of economic analysis in determining who gets the rewards of creative
expression and how the output is distributed. Rather, in challenging the
dominance of the economic efficiency paradigm, they argue that the nar-
row economic discourse needs to be supplemented by other democratic
approaches to copyright law. Some commentators argue that the eco-
nomic efficiency paradigm needs to be complemented by insights from
other disciplines, such as anthropology, cultural studies, philosophy, sci-
ence and technology studies, and sociology.19
This study seeks to contribute to that line of thinking by showing that
the notion of cultural democracy can provide a broader, more encom-
passing framework for reforming copyright laws. In doing so, the study
provides a detailed discussion of the concept of cultural democracy and
describes examples of values the concept promotes. Then it illustrates
ways cultural democracy can be understood in connection with individ-
uals’ engagement with cultural works. A discussion of the relationship
between cultural democracy and social benefits of the first sale doctrine
follows. (The first sale doctrine, codified at Section 109(a) of the Copy-
right Act, states that “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 oth-
erwise dispose of the possession of that copy or phonorecord.”). Finally,
the study concludes that having a normative framework that considers
broader societal interests is important for balancing interests between
copyright holders and users of copyrighted material.
THE CONCEPT OF CULTURAL DEMOCRACY
In discussions of copyright law, the term “culture” has garnered at-
tention from intellectual property scholars but with scant attention
directed to the meaning of “culture.”20 Given that culture carves out
spaces within which individuals’ decisions about their own lives and
collective decisions are made and various alternative options are con-
sidered, it is important that the shaping of those spaces be frequently
18See Yoch a i B e n k ler, Free as the Air to Common Use: First Amendment Constraints on
Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354 (1999); Bracha & Syed, supra note
2; Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright
Law in Cyberspace,14C
ARDOZO ARTS &ENT. L.J. 215 (1996); Neil Weinstock Netanel,
Copyright and a Democratic Civil Society, 106 YALE L.J. 283 (1996).
19See JULIE COHEN,CONFIGURING THE NETWORKED SELF:LAW,CODE,AND THE PLAY
OF EVERYDAY PRACTICE 19 (2012); SUNDER,supra note 10, at 32.
20See SUNDER,supra note 10, at 6-7, 45.
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DIGITAL FIRST SALE DOCTRINE 225
recalibrated. Intellectual property is considered a legal tool that regu-
lates how the cultural sphere is reshaped through ongoing processes of
boundary making.21
Within the broad category of culture, cultural democracy emphasizes
democratic values, such as individual autonomy, expressive diversity,
and active participation by ordinary people in cultural meaning-making
processes.22 More specifically, in rationalizing copyright protection and
its consequences, proponents of cultural democracy look upon copyright
law as a tool that helps individuals fulfill their life-choices and express
their autonomy in the cultural sphere.23
Cultural democracy is a concept found in arenas other than intellec-
tual property scholarship. In the early twentieth-century, Rachel Davis
DuBois developed the concept of cultural democracy that advocates the
significance of intercultural education and the sharing of cultural val-
ues.24 DuBois defined cultural democracy as “a conscious sharing of our
cultural values — a creative use of differences.”25 DuBois noted that
only in a democracy is it possible to carve out cultural spaces where “a
creative use of differences” can take place.26 The type of cultural sharing
occurring within those spaces she referred to as “cultural democracy.”27
DuBois explained:
To hold that each of these [various cultural and religious groups], as each
individual, is entitled to its right to life, liberty, and the pursuit of its
particular kind of happiness, as long as it does not interfere with the
welfare of the whole, is the virtue of tolerance. But this is to be merely
tolerant. Because society is one organic whole, it must be sustained by
more than tolerance. It requires integration. Society needs to make a
creative use of differences.28
During the 1940s, when the dominant American philosophy of culture
focused on cultural assimilation, DuBois advocated the importance of
differences and argued for accepting and benefiting from diverse per-
spectives and cultures. Her unique American voice has since resonated
21See id. at 45.
22See Bracha & Syed, supra note 2, at 253-56.
23See id. at 253-56.
24RACHEL DAVI S DUBOIS,GET TOGETHER AMERICANS:FRIENDLY APPROACHES TO
RACIAL AND CULTURAL CONFLICTS THROUGH THE NEIGHBORHOOD-HOME FESTIVAL
(1943). See also JAMES BAU GRAVES,CULTURAL DEMOCRACY:THE ARTS,COMMUNITY,
AND THE PUBLIC PURPOSE (2005).
25DUBOIS,supra note 24, at 54.
26Id. at 5.
27Id.
28Id. at 6 (emphasis in original).
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226 Y. SANG
with peace efforts during wartime and in support of the civil rights of
ethnic minorities. With reference to copyright law, cultural democracy
has not received adequate attention compared to political and economic
democracy, although the notion of cultural democracy is equally impor-
tant and the three domains are inextricably interconnected.29
Echoing DuBois’ perspective, the 1976 Oslo Ad Hoc Conference of
European Ministers with Responsibility for Cultural Affairs offered:
Cultural democracy implies placing importance on amateurs and on cre-
ating conditions which will allow people to choose to be active participants
rather than just passive receivers of culture. A cultural policy which aims
at creating cultural democracy must necessarily be decentralized. De-
centralization must be considered both a means and an end in cultural
policy.30
Yves Evrard explored the origin of, philosophical roots of, and links
between the two paradigms of the democratization of culture and cul-
tural democracy.31 Democratization of culture is to “disseminate major
cultural works to an audience that does not have ready access to them,
for lack of financial means or knowledge derived from education,”32
a paradigm that emphasizes outcomes rather than opportunities. By
contrast, cultural democracy valorizes individuals’ freedom to make
life choices based on their own preferences. The cultural democracy
paradigm implies “an equality of opportunities, in which the market
structure needs to be varied enough to respect taste diversity and sat-
isfy each segment of taste.”33 That is, cultural democracy supports the
value of individual preferences and encourages the acceptance of and
benefits derived from the diversity of perspectives and cultures.
More pertinent to the present study, Oren Bracha and Talha Syed
articulated the notion of cultural democracy in the context of copy-
right.34 They argued that cultural democracy takes the notion of self-
determination to the cultural sphere and seeks decentralized cultural
meaning-making processes by ensuring opportunities for ordinary peo-
ple to actively participate in those cultural meaning-making processes.35
Here, cultural democracy is about providing equitable opportunities
29See GRAVES,supra note 24, at 10.
30Quoted in Jørn Langsted, Double Strategies in a Modern Cultural Policy,19J.OF
ARTS MGT.AND L., 53, 55-56 (1989).
31Yves Evrard, Democratizing Culture or Cultural Democracy?,27J.OF ARTS MGT.,
L. AND SOC’Y, 167, 167 (1997).
32Id. at 167.
33Id. at 173.
34Bracha & Syed, supra note 2.
35Id. at 253-56.
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DIGITAL FIRST SALE DOCTRINE 227
through which people can have meaningful liberty with regard to life
choices that reflect their own preferences and tastes and that they can
afford. Secondary markets in which copyrighted books are sold or do-
nated to others by original owners under the first sale doctrine can
be seen as providing equitable opportunities. In that regard, cultural
democracy and the first sale doctrine share a common goal, supported
also by the lending practices of public libraries.
Jack Balkin defined democratic culture as a culture where “individu-
als have a fair opportunity to participate in the forms of meaning making
that constitute them as individuals.”36 He argued that “democratic cul-
ture is valuable because it gives ordinary people a say in the progress
and development of the cultural forces that in turn produce them.”37
This line of thinking is related to the concept of self-determination that
values an individual’s ability to effectively pursue his or her life choices
and to revise them freely.38 In that regard, the particular values that
are promoted by the core concept of cultural democracy and democratic
culture are similar.
CULTURAL DEMOCRACY VALUES
Cultural democracy supports values of a democratic culture in these
ways: through advancement of individuals’ self-determination, through
decentralization of cultural meaning-making processes that encourage
individuals’ active participation, and through policies that support pub-
lic libraries as core cultural institutions that provide access to informa-
tion and knowledge, intellectual freedom, preservation of our culture,
and other democratic values. Many of the goals that public lending li-
braries pursue are connected to the core values of cultural democracy.
Advancement of Individuals’ Self-Determination
Building upon liberal democratic theories, cultural democracy takes
the notion of self-determination to the cultural sphere by emphasizing
the realization of self-determination based on individuals’ freedom of ex-
pression.39 The liberties of self-expression include not only individuals’
freedom to express their ideas but also their ability to use copyrighted
expressions.40
36Balkin, supra note 17, at 3.
37Id. at 35.
38See Bracha & Syed, supra note 2, at 251-52.
39See id. at 254.
40See Balkin, supra note 17, at 43-44. The liberty of self-expression does not imply that
cultural participation necessarily requires the appropriation of existing cultural works.
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228 Y. SANG
Access to knowledge and creative works is prerequisite to the realiza-
tion of speech rights.41 Copyright holders, however, are able to inhibit
people’s realization of speech or cultural participation by blocking their
access to copyrighted works. Accordingly, the interrelationship and ten-
sion between free speech and copyright law continues to garner atten-
tion.42 It is worth noting that “free speech defenses are inconsistently
interpreted and dismissed without due consideration” in intellectual
property cases.43 Notably, when it comes to copyright cases, free speech
arguments are not always successful in court.44 When the fair use de-
fense is not applied, various types of free speech activities, including
making documentary films, parodies or Internet memes, can be subject
to copyright infringement arguments.45
Free speech is essential to both individual autonomy and democracy.
The question of how far or to what extent one can use and manipulate
copyrighted expressions by others is also intrinsically related to the
issue of self-determination. Oren Bracha and Talha Syed define self-
determination as “the ability of individuals reflectively to form and
revise their own conception of the good, and effectively to pursue a
life plan for realizing it.”46 Several conditions should be met when an
individual fulfills his or her self-determination: (1) a variety of options
are available; (2) people are able to understand and evaluate those
options; and (3) people are able to critically revise their options.47
Certainly, there are many instances in which people can participate in these processes
without appropriation of existing cultural works. However, there are also situations
in which the appropriation of existing cultural works is necessary when criticizing or
challenging culturally dominant texts and arguments.
41See LAURA STEIN,SPEECH RIGHTS IN AMERICA:THE FIRST AMENDMENT,DEMOCRACY,
AND THE MEDIA (2006).
42See NEIL WEINSTOCK NETANEL,COPYRIGHT’SPARADOX (2008); Paul Goldstein, Copy-
right and the First Amendment,70C
OLUM.L.REV. 983 (1970).
43ROSEMARY J. COOMBE,THE CULTURAL LIFE OF INTELLECTUAL PROPERTIES:AUTHOR-
SHIP,APPROPRIATION AND THE LAW 77 (1998).
44Most notably, in the case of Eldred v. Ashcroft, 537 U.S. 186 (2003), the Supreme
Court found free speech arguments unpersuasive. Opponents of the 1998 Sonny Bono
Copyright Term Extension Act argued the act was unconstitutional, an argument the
Court rejected.
45For a detailed discussion of fair use, see PATRICIA AUFDERHEIDE &PETER JASZI,RE-
CLAIMING FAIR USE:HOW TO PUT BALANCE BACK IN COPYRIGHT (2011). It is worth noting
that increased access to cultural works does not guarantee a greater number of cultural
creations. The first sale doctrine promotes broad access to knowledge, information and
creative works, whereas the fair use doctrine enables users to remix or generate creative
works by granting more leverage for users to manipulate existing cultural works. Hav-
ing a digital first sale doctrine itself would not automatically enhance users’ freedom to
engage in creative cultural activities such as mashups, fan fiction and remixes.
46Bracha & Syed, supra note 2, at 251.
47Id.
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DIGITAL FIRST SALE DOCTRINE 229
As Jack Balkin contends, “Freedom of speech allows ordinary peo-
ple to participate freely in the spread of ideas and in the creation of
meanings that, in turn, help constitute them as persons.”48 Freedom
of expression is critical to individuals’ meaningful engagement in cul-
tural meaning-making processes. Democratic theorists, including those
in support of cultural democracy, assign weight to individual autonomy
and active participation in meaning-making processes.
Continuing that line of thought, Oren Bracha notes that one of the key
themes of cultural democracy is “the maximization and empowerment of
individual autonomy . . . . [I]ndividual autonomy includes the freedom
to interact in an active way with existing cultural materials, to recreate
and reshape them, and to express one’s own voice through a dialogue
with those of others.”49 This idea intersects the ways people gain access
to knowledge and creative works of others in their everyday lives.
Individual property ownership also relates to the development of an
individual’s autonomy. Crawford Macpherson views property as some-
thing “instrumental to a full and free life,” arguing that individual prop-
erty needs to include “a right to a set of power relations that permits
a full life of enjoyment and development of one’s human capacities.”50
Today, those who duly purchase digital content cannot fully exert their
autonomy in terms of distributing their possessions. Copy owners’ rights
are limited or restricted by the current licensing regime represented by
click-wrap or browse-wrap licenses.51 These licensing schemes usually
employ boilerplate terms that require people to be bound by them.52 Ac-
cording to Amazon’s Kindle Store Terms of Use, Amazon defines the pur-
chase of ebooks through Kindle Store as use of content. Many consumers
do not fully understand the difference between obtaining a license and
obtaining an ownership of ebooks. Even though they may know the dif-
ference, in many cases they do not carefully read all the terms of use.
When purchasing an ebook by clicking a “Buy now with 1-Click” button
on Amazon’s Kindle Store, it is not easy for consumers to recognize the
fact that they are obtaining only a license for their purchased products,
thus they are essentially misled about the nature of the transaction. In
most cases, boilerplate terms prevent digital content consumers from
selling or transferring their legally obtained digital media. On the other
48Balkin, supra note 17, at 3.
49Oren Bracha, Standing Copyright Law on Its Head? The Googlization of Everything
and the Many Faces of Property, 85 TEX.L.REV. 1799, 1846-47 (2007).
50C. B. MACPHERSON,DEMOCRATIC THEORY:ESSAYS IN RETRIEVAL 138 (1973).
51See MARGARET J. RADIN,BOILERPLATE:THE FINE PRINT,VANISHING RIGHTS,AND
THE RULE OF LAW 22, 88 (2013); Sarah Reis, Toward a “Digital Transfer Doctrine”? The
First Sale Doctrine in the Digital Era, 109 NW.U.L.REV. 173 (2015). In this article,
“copy owners” is used to refer to those who lawfully own a copyrighted work.
52See RADIN,supra note 51, at 12-17.
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230 Y. SANG
hand, if digital content consumers were allowed to resell or transfer
lawfully purchased content, that permission would be understood as
giving them more autonomy and facilitating the distribution of cultural
works, in effect reinforcing a vision of cultural democracy.
Decentralization of the Cultural Meaning-Making
Process
In the context of traditional cultural policy, decentralization focuses
mainly on geographical decentralization, such as relocating cultural
venues or sharing the state’s economic responsibilities with local au-
thorities.53 Jørn Langsted predicts that in a new cultural policy, decen-
tralization will mean paying increased attention to those groups that
have been underserved in terms of opportunities to participate in cul-
tural activities.54 In addition, decentralization is forecast to encourage
interaction between consumers and producers of cultural works that, in
turn, will unlock new opportunities for cultural works to be diverse in
terms of form and content.55
From a cultural democracy perspective, individuals are not just pas-
sive consumers of cultural works but are regarded as active partici-
pants in cultural meaning-making processes.56 In that regard, cultural
democracy relates to the concept of participatory culture that can be
regarded as something “promoting freedom, engendering equality, and
fostering human and economic development.”57 As Neil Netanel con-
tends, “From feminist fan fiction to mashups that meld white-bread
music with hip-hop, creative appropriation gives individuals a voice, a
means to challenge the ubiquity of mass media culture and the prevail-
ing mores, ideology, and artistic judgments it represents.”58 Creative
appropriation of copyrighted works or the so-called participatory cul-
ture that Henry Jenkins and Yochai Benkler address allows individuals
to raise their voices and in so doing contest the dominant cultural dis-
courses. It is worth noting that “participation is valuable only in cases
where it forms an engagement with expressive works that involves the
exercise of a person’s autonomy.”59
The possibility of participation in cultural meaning-making processes
holds particular significance when we try to challenge or demystify
53See Langsted, supra note 30, at 61.
54Id.
55See Balkin, supra note 17, at 4-5.
56See Bracha & Syed, supra note 2, at 255.
57SUNDER,supra note 10, at 64.
58NETANEL,supra note 42, at 160.
59David A. Snyder, Two Problems with the Value of Participation in Democratic Theory
and Copyright,89T
EX.L.REV. 1019, 1029 (2011).
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DIGITAL FIRST SALE DOCTRINE 231
taken-for-granted constructs.60 As Madhavi Sunder notes, “The liberty
to contest hegemonic discourses has particularly profound possibilities
for women and other minorities who have not traditionally had power
over the stories that dominate our lives.”61 Cultural democracy intrinsi-
cally relates to engendering diverse voices and portraits of our culture by
promoting ordinary citizens’ active participation in cultural meaning-
making processes, rejecting the passive consumption of cultural works.
While the law-and-economics paradigm gives weight to individuals’
willingness and ability to pay for creative works, the paradigm’s pri-
mary concerns do not encompass distribution schemes appropriate for
those unable to pay. Due to the lack of purchasing power of the poor,
lower income individuals do not benefit greatly from the creation of
more cultural works under the strong economics approach.62 In that
respect, when it comes to issues such as inequality in access to cultural
works, the law and economics paradigm, which values the creation of
more creative works and an overall increase of people’s welfare as mea-
sured by individuals’ willingness and ability to pay, cannot fully address
distributive concerns. Cultural democracy, on the other hand, can justify
considerations of distributive equity in the context of copyright.63
Today, ordinary citizens’ interaction with cultural works is mediated
largely by access to the Internet and broadband. Yet, even as broadband
seems to be an integral part of our daily lives, not all Americans enjoy
its economic, social and cultural benefits. As of 2013, a high-speed In-
ternet connection was not available in 31.4% of U.S. households with an
annual income less than $50,000 and children aged 6 to 17.64 Addition-
ally, broadband disparity between rural and urban areas in the United
States is well documented.65 A recent study of the broadband adoption
gap between metro and non-metro areas reports a consistent 13% gap
in household broadband adoption between 2003 and 2010.66
60See SUNDER,supra note 10, at 45-81; Xiyin Tang, That Old Thing, Copyright: Rec-
onciling the Postmodern Paradox in the New Digital Age, 39 AIPLA Q.J. 71, 98 (2011).
61SUNDER,supra note 10, at 65-66.
62See Pew Internet & American Life Project, The Rise of E-Reading, Apr. 4, 2012, http://
libraries.pewinternet.org/2012/04/04/the-rise-of-e-reading. According to Pew Research
Center’s survey conducted in 2012, e-reading device owners tended to read more books
and were likely to buy more books. The same data showed that the consumption of ebooks
was correlated with income level with low-income users consuming fewer ebooks.
63See Bracha & Syed, supra note 2, at 296-311.
64Pew Research Center, The Numbers Behind the Broadband “Homework Gap,” Apr.
20, 2015, http://www.pewresearch.org/fact- tank/2015/04/20/the-numbers-.
65See Sharon Strover, Rural Internet Connectivity,25TELECOMMUNICATIONS POL’Y
331 (2001).
66National Agricultural and Rural Development Policy Center, Rural Broadband
Availability and Adoption: Evidence, Policy Challenges, and Options, 2013, http://www.
oregonbroadbandplanning.org/assets/docs/RuralBroadbandWhitePaper.pdf.
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232 Y. SANG
Until recently, policy efforts intended to bridge the digital divide have
focused mostly on increasing broadband access and adoption. It is im-
portant to note, however, that “if policy efforts directed to remediating
the digital divide continue to focus primarily on access, which is eas-
ier to measure, compared to digital literacy and competency, the divide
is liable to continue.”67 A great deal of attention, therefore, should be
devoted to enhancing digital literacy and competency. What especially
deserves more attention in the context of cultural democracy is the role
of public libraries in “cultivating opportunities for participatory learn-
ing and co-creation that are hallmarks of digital culture.”68 In a con-
nected society, if individuals do not know how to participate in cultural
meaning-making processes, they are likely to remain culturally discon-
nected and apart from others, which is incompatible with the normative
ideal of cultural democracy.
Assistance to Public Libraries
Public libraries, as indispensable cultural institutions in many West-
ern democracies, are central to cultural democracy. They exist “to pro-
mote a public good.”69 As John Palfrey notes, “The knowledge that li-
braries offer and the help that librarians provide are the lifeblood of
an informed and engaged republic.”70 In addition to preserving cultural
works, public libraries provide access to knowledge and information,
facilitating people’s engagement with and contributions to the nation’s
cultural heritage and helping them to achieve life-long learning experi-
ences. Participation in cultural meaning-making processes first requires
access to existing works, and libraries play a crucial role in offering ac-
cess points for ordinary citizens. As culturally significant works are in-
creasingly distributed in digital formats, it is of paramount importance
to address the issue of transferring cultural works, as digital content,
over time and space — whether in libraries or other institutions.
In the age of licensing, libraries struggle to deal with various licensing
models imposed by content distributors. In fact, their capacity to provide
access to culturally significant digital content is significantly limited.
When it comes to ebooks, publishers often impose much higher prices
67Sharon Strover, Kenneth Flamm & Yoonmo Sang, Public Computing Centers: Be-
yond “Public” and “Computing,” paper presented at the Telecommunications Policy Re-
search Conference, Arlington, Virginia (2013), available at http://papers.ssrn.com/sol3/
papers.cfm?abstract id=2241173.
68Ian McShane, Public Libraries, Digital Literacy and Participatory Culture,32DIS-
COURSE:STUDIES IN THE CULTURAL POLITICS OF EDUCATION 393 (2011).
69ROBERT DARNTON,THE CASE FOR BOOKS:PAST,PRESENT,AND FUTURE 11 (2009).
70JOHN PALFREY,BIBLIOTECH:WHY LIBRARIES MATTER MORE THAN EVER IN THE AGE
OF GOOGLE 10 (2015).
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DIGITAL FIRST SALE DOCTRINE 233
on libraries; publishers can choose not to sell ebooks to libraries; they
can even eliminate library access to their new releases. In November
2011, Penguin refused to sell its new ebook titles to libraries.71 Thus, li-
braries are unable to maintain access to content at a level equivalent to
that of printed books to which the first sale doctrine applies.72 Libraries
encounter problems adding ebooks to their service catalogs, leaving pa-
trons unable to access them.73 Given that libraries provide individuals
who cannot afford the primary markets with free and unfettered access
to knowledge and creative works, the problems libraries face warrant
serious attention.
Having to increasingly rely on licensing presents a particular prob-
lem to libraries; licensing tends to employ onerous agreements. Licens-
ing agreements are regulated by contract laws that make it difficult
to impose legal limits on contractual agreements between libraries and
content distributors.74 That said, some efforts are being made to address
the constraints. Examples of such efforts include the collection of cul-
turally significant works in digitized format, licensed by Creative Com-
mons and by the Digital Public Library of America’s initiative. Since
its launch in 2013, the Digital Public Library of America has served
as a core digital platform for a wide range of hub-libraries and hub-
institutions that hold digital collections; additionally, it offers access to
digital cultural works for libraries that use hub-organizations.75 In ad-
dition to providing access to digital cultural works, the Digital Public
Library of America helps citizens “contribute materials in their pos-
session to a national data store.”76 Contributions by ordinary citizens
involve their active participation in the process of cultural meaning-
making, thereby helping to achieve another value promoted by cultural
democracy.
One of the key features of cultural democracy is facilitating ordinary
citizens’ participation in cultural meaning-making processes. That fea-
ture is well-aligned with the mission of public libraries. This study ar-
gues that the best way to incorporate cultural works both exhaustively
and effectively in the digital age is to challenge the current copyright
71See http://www.ala.org/news/mediapresscenter/americaslibraries/soal2012/new-foc
us-on-ebooks.
72See Tomas A. Lipinski, The Incursion of Contract Law (Licensing) in the Library:
Concerns, Challenges, Opportunities and Risks, paper presented at the IFLA General
Conference and Assembly, Lyon, France (2014).
73See Marshall Breeding, Observations, Trends, and Ongoing Challenges,49LIBRARY
TECHNOLOGY REPORTS 32 (2013); Judith Brook & Anne A. Salter, E-books and the Use
of E-book Readers in Academic Libraries: Results of An Online Survey,49G
EORGIA
LIBRARY Q. 16 (2012).
74See Lipinski, supra note 72, at 2.
75See PALFREY,supra note 70, at 98-108.
76Id. at 102.
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234 Y. SANG
legislation and to enable libraries to better meet the needs of the pub-
lic. The goals of providing access to information and enabling people
to participate in cultural meaning-making processes are particularly
important to libraries that serve economically vulnerable populations,
because in many cases low-income individuals and their families can-
not afford to purchase cultural resources so that public libraries offer an
alternative where they can borrow cultural works. Inasmuch as public
libraries have functioned as core institutions that further democracy,
their mission should, even in the digital age, continue to receive sup-
port under the copyright law. Indeed, the notion of cultural democracy
provides a theoretical backbone for public libraries to accomplish their
mission.
CULTURAL DEMOCRACY IN PRACTICE
Understanding the cultural sphere is germane to a vision of cultural
democracy.77 The very essence of self-determination is the ability of indi-
viduals to critically and independently consider and reconsider various
life choices and pursue their own life plans.78 Thus, applying the ba-
sic conditions of self-determination to the cultural sphere necessitates
that meaningful choices are available to individuals along with equal
opportunities for everyone to participate in cultural meaning-making
processes.
This brings us back to earlier concerns about the autonomy of owners
(those who legally purchased copyrighted works) with regard to the
digital content they paid for. In terms of promoting self-determination,
allowing copy owners to sell or transfer ownership of their content is
desirable as it bestows more freedom on individuals with regard to
their possessions (or what they believe are their possessions). From the
perspective of copyright holders, however, allowing copy owners to resell
or lend their paid digital content may be viewed as favoring copy owners
over copyright holders because of limitations placed on the distribution
rights of copyright holders.
One might ask why we should care about ordinary citizens’ freedom
to transfer the ownership of their lawfully purchased works and why
we should favor the freedom of users over that of copyright owners.
Is there any good justification for granting users this right? The cul-
tural democracy response is that giving digital content consumers more
freedom to tinker with and interact with their possessions — including
transferring ownership of their lawfully purchased works — promotes
77See Bracha & Syed, supra note 2, at 255.
78See GERALD DWORKIN,THE THEORY AND PRACTICE OF AUTONOMY 80-81 (1988); JOEL
FEINBERG,HARM TO SELF 33-35 (1986).
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DIGITAL FIRST SALE DOCTRINE 235
an individual’s self-determination. Our culture is built around countless
contractual transactions, and individual autonomy is the foundation of
contractual transactions. As Mindy Chen-Wishart aptly notes, “The abil-
ity to create property rights (to obtain the exclusive use and possession
of a thing) and to transfer property rights is a necessary precondition of
individual autonomy.”79
The normative concept of self-determination may not be enough to
fully address the question of favoring users’ freedom. After all, if we
treat the opportunity to maximize subjective preferences equally, we
may need to equally protect copyright holders’ freedom to earn more
money by exerting their control over their copyrighted works. Here the
notion of cultural democracy provides a justification for favoring ordi-
nary citizens’ freedom to access and use cultural works. When weighing
the simple goal of earning more money through copyright protection
and that of realizing one’s life goals (such as becoming a musician or
writer) by being exposed to and consuming more cultural works, cultural
democracy gives greater importance to the latter. Life goals do not have
to be professional. Creating and distributing user-generated content can
be considered the realization of one’s life choice. Allowing broader ac-
cess and cheaper access is good because it helps ordinary citizens define
and form their life plans without constraints. Cultural democracy places
great value on promoting a participatory culture and that value is the
basis for justifying the favoring of digital content consumers.
Recent developments in the cultural domain provide a concrete con-
text in which the notion of cultural democracy plays out. Cultural democ-
racy offers a more robust work environment because it opens the pos-
sibility for people to choose creative occupations or careers. With the
advancement of digital technologies and the Internet, ordinary citizens
increasingly exert their right to participate in various forms of cultural
meaning-making processes. This is ably documented in the growing
literature on participatory media, whether it be the creation of fan fic-
tion, peer-to-peer collaboration efforts, or remixing.80 As William Fisher
notes, technology “has radically increased the ability of innovating users
to communicate with each other — to exchange ideas concerning tech-
niques and products, and to form communities centered on their shared
interests.”81
Innovative users can even make a lot of money through social me-
dia outlets. Consider Sweden’s Felix “PewDiePie” Kjellberg, one of
79MINDY CHEN-WISHART,CONTRACT LAW 25-26 (2015).
80See JEAN BURGESS &JOSHUA GREEN,YOUTUBE:ONLINE VIDEO AND PARTICIPATORY
CULTURE (2009); Suzanne Scott, The Moral Economy of Crowdfunding and the Trans-
formative Capacity of Fan-Ancing,17N
EW MEDIA &SOC’Y167 (2015).
81William Fisher, The Implications for Law of User Innovation,94MINN.L.REV. 1417,
1430 (2010).
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236 Y. SANG
YouTube’s biggest stars. By posting his videos to YouTube, the Swedish
video-game commentator made, in 2013, more than $4 million through
advertising revenue.82 He started uploading his videos “motivated pri-
marily by a combination of curiosity and passion.”83
It is increasingly difficult to tell whether “innovating users” are ama-
teurs or professionals. It is not so uncommon for people to make several
million dollars from their own YouTube channel by commenting on or
making derivative works based on preexisting videos or other creative
works.84 Not only are they making money by participating in cultural
meaning-making processes, their activities sometimes enable them to
discover new professions. Michelle Phan, for example, has several mil-
lion YouTube subscribers for her videos about how to shop and use
cosmetics. She was hired by the cosmetics company Lancˆ
ometobethe
firm’s official video makeup artist.85 As of September 2014, she had
more than 6.9 million subscribers, her own line of makeup, and an on-
line subscription service called Ipsy.86
The ubiquitous presence of user-generated content is important be-
cause it opens opportunities for other users to build on preexisting cre-
ative works, generate new cultural works, and share them, which even-
tually serves as a catalyst to decentralize cultural meaning-making pro-
cesses. In that sense alone, the digital environment, with its “relative
ease of commenting on others’ cultural expressions and making one’s
own content destabilizes traditional cultural authorities, making that
authority more transparent and contingent.”87
In the pre-digital media world, the participation by individuals in
the process of cultural meaning-making was often mediated by books
and other print material. Even today, books serve as the primary source
for individuals to access knowledge and cultural expression by offering
a wide range of perspectives and experiences across time and space.
Books provide opportunities for individuals to become informed citizens
82See Caroline Moss, YouTube Multimillionaire Pewdiepie: “I’m Tired of Talking
About How Much Money I Make,” BUS.INSIDER, Oct. 11, 2014, available at http:
//www.businessinsider.com/pewdiepie-is-youtubes-biggest-star-2014-10.
83Fisher, supra note 81, at 1433-34.
84See Harrison Jacobs, We Ranked YouTube’s Biggest Stars by How Much
Money They Make,B
US.INSIDER, Mar. 10, 2014, http://www.businessinsider.co.id/
richest-youtube-stars-2014-3/8/#.Vh6ysPlViko.
85See Alan Farnham, More People Getting Rich off YouTube Videos, ABC NEWS,
Aug. 30, 2012, http://abcnews.go.com/Business/youtube-making- people-rich/story?id=
17104798.
86See Bree Brouwer, Michelle Phan Reaches a Milestone with Over 1 Billion
Channel Views,T
UBEFILTER, Sept. 5, 2014, http://www.tubefilter.com/2014/09/05/
michelle-phan-channel-one-billion-views/.
87SUNDER,supra note 10, at 58. It is important to note that the democratic potential of
user-generated content online is often hampered by the censorship of platform providers
who are governed by the DMCA notice-and-takedown system.
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DIGITAL FIRST SALE DOCTRINE 237
in a democratic society and, in that way, books have enjoyed a deep and
long-lasting influence on people’s entire lives. Individuals’ literacy is en-
hanced as a result of their interaction with books, regardless of whether
their literacy was gained through formal or non-formal education or
through meaningful conversations with other readers. Consequently,
reading books has served as a prerequisite for individuals to participate
in meaning-making processes, politically as well as culturally.
As Madhavi Sunder points out, “Participatory culture is instrumen-
tally and intrinsically related to promoting freedom, engendering equal-
ity, and fostering human and economic development.”88 The core values
promoted by cultural democracy are synonymous with the values em-
phasized by participatory culture advocates. Based on liberal political
theories, the notion of cultural democracy provides a theoretical expla-
nation of why participation matters.
Not all types of cultural activities are directly attributable to books
(or ebooks). Nonetheless, literacy and education that enable citizens to
participate in activities all stem from the fact that books (or ebooks)
play a significant role in furthering a participatory culture. Indeed, it is
impossible to imagine active and meaningful discussions in classrooms,
cafes, book clubs and elsewhere without the mediation of books.
The Harry Potter Alliance is a good example of how people actively
interact with cultural works in a meaningful way. The organization was
established in order to bring positive changes to society by encouraging
readers of the Harry Potter book series to become engaged with societal
issues, such as human rights, equality and literacy. Madhavi Sunder
notes, “Through the Alliance children are coming together to form an
army of young citizens dedicated to upholding the Potter books’ values
of being kind, having the courage to question authority and cultural
norms, and fighting for justice in the real world.”89 Among the tasks
accomplished so far are the shipment of life-saving supplies to Haiti,
the donation of books to build community libraries, the partnering with
public advocacy groups such as Public Knowledge to raise public aware-
ness of important social issues like network neutrality, the initiation of
public campaigns, and the establishment of funds to support people who
are suffering in Sudan and Burma.90
The creation of creative works usually requires access to existing
works and interaction with those works. Creators, including writers,
need to quote something or borrow characters or narrative structures
from previous novels, plays, or folktales. This is particularly true in the
88Id. at 64.
89Id. at 69.
90See http://thehpalliance.org/what-we-do/success- stories.
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238 Y. SANG
case of fan-fiction writers. A large portion of fan and user-generated con-
tent is created based on existing cultural works. On the Internet, memes
are generated by adding brief and humorous phrases to preexisting
videos or images and circulated to share cultural ideas or messages.91
Digital mashups are also made by mixing two or more preexisting cul-
tural works to create new digital works.92 One notable example of digital
mashup is The Grey Album by Brian Burton which combined a portion of
the Beatles’ The White Album with hip-hop musician Jay-Z’s The Black
Album.93 Later, Laurent Fauchere and Antoine Tinguely created The
Grey Video by integrating a portion of The Grey Album with some parts
taken from the Beatles’ movie, A Hard Day’s Night, and a video per-
formance by Jay-Z.94 Another example is Radiohead, who teamed with
iTunes and GarageBand to allow its fans to remix the band’s musical
tunes.95 These digital mashups allow people to rework preexisting cul-
tural works; some creators like to share their remixes with others under
Creative Commons licenses.96
Much of this culturally meaningful user-generated content exists in
a legal gray area.97 To be creators, people need to access, as much as
possible, preexisting creative works. This is also true for writers. To
promote cultural progress, it is critical that access to creative works is
assured. Under the current copyright law, it is not clear to what extent
remixes, mashups, and derivative works fit within the copyright law.
ABRIEF OVERVIEW OF THE FIRST SALE DOCTRINE
Section 109(a) of the Copyright Act states that “the owner of a partic-
ular copy or phonorecord lawfully made under this title . . . is entitled,
without the authority of the copyright owner, to sell or otherwise dispose
of the possession of that copy or phonorecord.”98 The first sale doctrine
is a safety valve recognized by the Copyright Act of 1976. Other safety
valves include the fair use doctrine and the idea/expression dichotomy.99
U.S. legal scholars have justified the first sale doctrine primarily be-
cause of its socially desirable outcomes. The doctrine prohibits copyright
91See http://www.merriam-webster.com/dictionary/meme (defining “meme” as “an
idea, behavior, or style that spreads from person to person within a culture”).
92See Fisher, supra note 81, at 1418.
93See id.
94See id. at 1418-19.
95See SUNDER,supra note 10, at 57.
96See id. at 57.
97See id. at 35.
9817 U.S.C. §109(a) (2012).
99See PAUL GOLDSTEIN,COPYRIGHT’SHIGHWAY:FROM GUTENBERG TO THE CELESTIAL
JUKEBOX 170 (1994).
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DIGITAL FIRST SALE DOCTRINE 239
owners from controlling downstream distributions of copyrighted works
by exhausting their exclusive distribution rights with regard to those
copies after their initial sale. Therefore, it enables those who cannot
afford to buy original copies of copyrighted works to access those works
at a lower price through secondary markets. The first sale doctrine also
enables libraries to lend books and other cultural works to patrons free
from copyright liability.100
In the United States, the doctrine, which is rooted in common law,
has been developed mostly by court decisions. In 1894, it was recog-
nized by the United States Court of Appeals for the Second Circuit in
Harrison v. Maynard, Merrill & Co.101 Some commentators argue that
this early case provided grounds for a wider application of the first sale
doctrine.102 More than a decade later, the Supreme Court in Bobbs-
Merrill Co. v. Straus103 affirmed the doctrine, which was codified in the
Copyright Act of 1909. In Bobbs-Merrill, the plaintiffs argued that the
booksellers impinged on their right by selling copies of a novel enti-
tled The Castaway for eighty-nine cents. A price-restriction notice was
attached to each copy of the book, which read: “The price of this book
at retail is $1 net. No dealer is licensed to sell it at a less price, and
a sale at a less price will be treated as an infringement of the copy-
right.”104 The Supreme Court ruled that the “sole right to vend” clause
of copyright law did not grant the copyright owner the right to limit or
restrict the copyrighted work’s future sales by imposing price-related
restrictions.105
In 2013, the Court in Kirtsaeng v. John Wiley & Sons, Inc.106 ruled that
the first sale doctrine is applied to imported textbooks manufactured
outside the United States, as long as they are non-infringing copies. The
Kirtsaeng case, however, did not extend to the resale of digital goods.
In recent years, the issue of digital first sale has received increased
attention, and, in 2013, the Department of Commerce requested public
comment on digital first sale.107
100See CARRIE RUSSELL,COMPLETE COPYRIGHT:ANEVERYDAY GUIDE FOR LIBRARIANS
43 (2004).
10161 F. 689 (2d Cir. 1894).
102See Aaron Perzanowski & Jason Schultz, Digital Exhaustion,58UCLAL.REV. 889,
913 (2011).
103210 U.S. 339 (1908).
104Id. at 341.
105Id. at 351.
106133 S.Ct. 1351 (2013).
107Request for Comments on Department of Commerce Green Paper, Copyright Policy,
Creativity, and Innovation in the Digital Economy, 78 Fed. Reg. 61337 (Oct. 3, 2013).
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240 Y. SANG
Opponents of digital first sale have argued that the ease of mak-
ing copies in digital format, the longevity of digital content, and non-
degradability of digital content will negatively affect markets for the
original copy. Another argument against digital first sale is that trans-
mitting a digital file necessarily involves a reproduction of the original
copy, which can be considered as infringing the copyright owner’s repro-
duction right.108 Relying on the economic efficiency framework, some
commentators oppose digital first sale, saying that if the first sale is
applied in a digital environment, content creators are unlikely to be in-
centivized to generate creative works.109 When considering the effects of
digital first sale on the digital content market, pointing out that digital
goods do not degrade over time, some worry about the possibility that
retailers will raise prices of their digital content.110
Many scholars have called for a broader application of copyright’s
first sale doctrine in the digital context.111 Those who are in support of
digital first sale basically agree that socially beneficial outcomes of the
first sale doctrine should be applied to a lawfully owned copyrighted
work, regardless of that work’s embodiment (that is, physical state v.
digital state). There is little doubt that changing copyright law to extend
the first sale doctrine to digital goods would be the most direct option in
terms of adopting a digital first sale. In light of the difficulties associated
with a revision of the Copyright Act, to refute arguments against digital
first sale, some commentators have considered technical approaches or
108See Lucy Holmes Plovnick, Will the U.S. First Sale Doctrine Go Digi-
tal?, INTELL.PROP.MAG., http://msk2.inherent.com/images/cms/file/LHP%20ReDigi%
20article-March 2012.pdf .
109This is a legitimate concern that requires further research supported by economic
analyses. At this stage, given that digital first sale does not apply to digital content, it is
not easy to predict how digital first sale will affect the overall public welfare. Arguably,
this concern led the U.S. Copyright Office, in its DMCA Section 104 Report released in
2001, to take a wait-and-see approach to digital first sale. See also Keith Kupferschmid,
Lost in Cyberspace: The Digital Demise of the First-Sale Doctrine,16J.M
ARSHALL J.
COMPUTER &INFO. L. 825 (1998).
110See Michael Mattioli, Cooling-Off & Secondary Markets: Consumer Choice in the
Digital Domain,15V
A.J.L.&TECH. 227, 247 (2010) (“While this possibility should be a
cause for concern, it is helpful to consider economic forces that would likely push retail
prices in the opposite direction. For example, a used digital media market could benefit
distributors and copyright holders by promoting increased sales in the primary market.
A consumer who would not have downloaded a twenty dollar movie in the past might
make the purchase if the option to easily resell the work existed.”).
111See, e.g., Clark D. Asay, Kirtsaeng and the First-Sale Doctrine’s Digital Problem,66
STAN.L.REV. 17 (2013); Victor F. Calaba, Quibbles ‘n Bits: Making a Digital First Sale
Doctrine Feasible, 9M
ICH.TELECOMM.&TECH.L.REV. 1 (2002); Evan Hess, Code-ifying
Copyright: An Architectural Solution to Digitally Expanding the First Sale Doctrine,81
FORDHAM L. REV. 1965 (2013); Mattioli, supra note 110; Perzanowski & Schultz, supra
note 102; Reis, supra note 51; Theodore Serra, Rebalancing at Resale: ReDigi, Royalties,
and the Digital Secondary Market,93B.U.L.R
EV. 1753 (2013); Eurie Hayes Smith IV,
Digital First Sale: Friend or Foe?,22C
ARDOZO ARTS &ENT. L. J. 853 (2005).
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DIGITAL FIRST SALE DOCTRINE 241
policy recommendations, such as relying on contemporary technological
developments that make digital files degrade over time, resorting to
so-called “forward-and-delete” technology that allows one to transfer a
particular copy to another without leaving that particular copy on his
or her computer, or adopting a middle ground solution (that is, a resale
royalty scheme).112 Arguably, those approaches did not pay adequate
attention to a normative framework that can guide us to reevaluate the
current copyright law within a broader context.
In Capitol Records, LLC v. ReDigi Inc.,113 a federal district court in
New York considered the issue of the digital first sale doctrine when
addressing the legality of reselling MP3 files. ReDigi, an online market-
place for pre-owned digital music files, provided a technology that al-
lowed users to resell their legally purchased digital music files through
its server. In response to the major record labels’ copyright infringement
suit, ReDigi defended its service based on the first sale and fair use doc-
trines. The ReDigi court did not accept the arguments, finding that the
fair use defense did not apply because ReDigi was a commercial service
that can harm the market of plaintiff record labels. The court also re-
jected ReDigi’s first sale defense on grounds that the first sale doctrine
cannot serve as a successful defense with regard to allegedly infring-
ing copies made on ReDigi’s server and the buyer’s computer. Focusing
on the fact that the first sale doctrine can be used only as a defense
against infringement of the distribution right, the ReDigi court ruled
that ReDigi’s service constituted a copyright infringement by reproduc-
ing a new copy when transferring digital music files. The ReDigi case
shows that the comprehensive discussion of a digital first sale requires
addressing relevant legal issues together, such as the issue of temporary
reproductions and licensing.
112See Hess, supra note 111 at 2006-11; Reis, supra note 51, at 205; Serra, supra note
111, at 1787-1801; Adam W. Sikich, Buyer Beware: The Threat to the First Sale Doctrine
in the Digital Age,14J.OF INTERNET L. 19, 22 (2011) (“Because the file would no longer be
within the sender’s possession following the transmission, proponents of implementing
forward and delete argue that this is the legal equivalent of giving, lending, or selling a
material copy in a fixed form.”). See also Benefit Authors Without Limiting Advancement
or Net Consumer Expectations (BALANCE) Act of 2003, H.R. 1066, 108th Cong. (2003).
The proposed BALANCE Act included a provision that legalizes the resale of digital
goods and failed at the subcommittee level. Under the proposed bill, Section 109 of
Copyright Act is amended by adding the following: “(f) The privileges prescribed by
subsections (a) and (c) apply in a case in which the owner of a particular copy or
phonorecord of a work in a digital or other nonanalog format, or any person authorized
by such owner, sells or otherwise disposes of the work by means of a transmission to a
single recipient, if the owner does not retain the copy or phonorecord in a retrievable
form and the work is so sold or otherwise disposed of in its original format.”).
113934 F. Supp. 2d 640 (S.D.N.Y. 2013).
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242 Y. SANG
LINKS BETWEEN CULTURAL DEMOCRACY AND THE FIRST
SALE DOCTRINE
Drawing on the notion of cultural democracy would more fully achieve
the goals of copyright legislation (balancing competing legitimate in-
terests between copyright holders and users of copyrighted material,
promoting advancement in science and useful arts, for example). The
desired effects of the first sale doctrine include ensuring greater ac-
cess to informative, scientific and cultural works; protecting consumer
welfare and privacy; and promoting market innovation. Those are the
motivations that originally prompted enactment of the doctrine.
Availability
Copyright owners may want to limit access to their copyrighted works
for a variety of reasons. One possible scenario is that copyright owners
may allow their books to go out of print when they think printing those
books is not economically viable.114 More than 97% of books published in
the United States between 1927 and 1946 were “commercially dormant
and inaccessible” in the early 2000s.115 In addition, creators and copy-
right owners sometimes change their views on their works and want
to suppress the distribution of those works.116 A similar example exists
in the movie industry. Tony Kaye, a British film director, attempted to
remove his name from his film American History X and even tried to
impede the success of the film.117 To counter limitations on availability,
secondary markets allow people to access out-of-print books or other
creative works. In a similar way, digital resale markets could help dig-
ital works be more easily accessible and make it difficult for copyright
holders to completely control the availability of their works.118
Previous studies have shown that among the most common reasons
people download copyrighted material are cost and availability.119 For
example, official ebook versions of the Harry Potter series were not
available until early 2012 when the author of the books, J.K. Rowling,
114See Hess, supra note 111, at 1973.
115Id. at 1973 (“Similarly, of the 157, 068 titles listed in the Turner Classic Movies’
database, fewer than 4 percent are available on home video.”).
116See Ruth A. Reese, The First Sale Doctrine in the Era of Digital Networks,44B.C.
L. REV. 577 (2003).
117See Hess, supra note 111, at 1974 (“Moreover, copyright owners may wish to suppress
their work because their views on it have changed. For example, on his deathbed, Virgil
asked that The Aeneid be burned.”).
118See Reis, supra note 51, at 194.
119See Michael Kozlowski, Ebook Pirates: The Reasons Why People Do
It,G
OODREADER, Jan. 26, 2012, http://goodereader.com/blog/e-book-news/
ebook-pirates-the-reasons-why-people-do-it. See also Yoonmo Sang, Jeong-Ki Lee,
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DIGITAL FIRST SALE DOCTRINE 243
started Pottermore as the official Web site to sell ebook versions of the
novels.120 Before those ebooks were officially available, the Harry Potter
series was “the most pirated book of all time.”121 However, the release
of official ebooks resulted in an increase in sales of the print books and
a decrease in piracy.122 The connection between piracy and the poten-
tial effects of digital secondary markets has yet to garner the attention
it deserves.123 By having digital secondary markets that are more af-
fordable and accessible, piracy of digital goods may decrease given that
previous studies have reported that people tend to illegally download
content when they cannot find legitimate and affordable routes to pur-
chase digital goods.
Affordability
As Elizabeth McKenzie notes, “Libraries and second-hand markets
serve as crucial, low-cost sources of knowledge for many underprivi-
leged or undereducated individuals, and we should not justify a policy
that would inhibit their growth in the digital age.”124 The existence of a
digital resale market would promote retail price competition, which, in
turn, would benefit consumers. In a market where consumers can pur-
chase secondary digital goods that are no different from the originals in
terms of quality, secondary digital markets would provide more afford-
able options as well as facilitate the exchange of used digital works due
to the availability of fast, effortless and cost-free transactions around
Yeora Kim & Hyung-Jin Woo, Understanding the Intentions Behind Illegal Download-
ing: A Comparative Study of American and Korean College Students,32T
ELEMATICS
AND INFORMATICS 333 (2015).
120Laura Owen, You Can Buy the Harry Potter eBooks Now: Here’s What You Need
to Know,G
IGAOM, Mar. 27, 2012, https://gigaom.com/2012/03/27/419-you-can-buy-the-
harry-potter-e-books-now.
121Kozlowski, supra note 119, at para. 7.
122See Mike Masnick, Ebook Sales of Harry Potter Lead to Increased Physical
SalesAsWell,T
ECHDIRT, May 7, 2012, https://www.techdirt.com/articles/20120507/
04142118804/ebook-sales-harry-potter-lead-to-increased-physical-sales-as-well.
shtml.
123See Asay, supra note 111, at 22 (“Certainly some cases of piracy would still occur
. . . but the possibility of piracy in the physical world has never been justification
enough to eliminate first-sale rights there. Nor should it be in the digital world. A
digital first-sale might also reduce piracy as consumers rely on legitimate secondary
markets instead of piracy. Secondary markets might also result in increased sales of
other copyrighted works because secondary markets expose consumers to a broader
spectrum of copyrighted works, which often leads them to purchase complementary
goods.”).
124Elizabeth McKenzie, A Book by Any Other Name: E-books and the First Sale Doctrine,
12 CHI.-KENT J. INTELL.PROP. 57, 70 (2013).
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244 Y. SANG
the globe.125 More importantly, the first sale doctrine as applied to digi-
tal content would allow consumers to choose between two-tier markets
through the mechanism of price differentiation, thereby granting con-
sumers more affordability.
It may be argued that consumers end up paying even higher prices
for the purchase of digital goods because digital goods do not degrade
(as far as we know) over time, which may lead producers to increase
retail prices. Although that possibility does merit concern, it is unlikely
to be the case. Publishers can, after all, employ a price differentiation
strategy.
College students also can benefit from digital resale. Textbooks are
expensive in the United States. The average U.S. college student pays
approximately $655 per year to purchase textbooks and supplies, while,
after financial aid, the average student attending a four-year public
college pays about $2,900 for annual tuition.126 The Bureau of Labor
Statistics has released data that show, as of 2013, the cost of course ma-
terials has increased more than 800% since 1978, while the same data
indicate a 325% increase in home prices, a 250% increase in consumer
price index, and a 575% increase in medical services.127 At semester’s
end, college students often resell their textbooks to help offset those
costs. As long as the first sale doctrine is not applicable to ebooks, phys-
ical textbooks carry economic advantages because students can resell
their paper textbooks and recoup their previous investment so that the
prohibition of resale of digital copies may serve as a barrier to the wider
adoption of ebooks in higher education.128
Libraries face additional problems with regard to ebooks. Publishers
put restrictions on which ebooks are available at certain libraries and
control the ways in which library patrons consume ebooks.129 Harper
Collins and other publishers do not allow a library to lend ebooks more
than twenty-six times without the repurchase of a license. Libraries had
to pay $74.85 to buy Sheryl Sandberg’s best-selling ebook titled Lean In,
released in 2013, while consumers could purchase it for $12.99.130 By
imposing enough restrictive language when providing libraries access to
ebooks through licensing, copyright holders can foreclose the legitimate
125See Mattioli, supra note 110, at 246-48.
126See Jordan Weissmann, Why Are College Textbooks So Absurdly Expensive?, THE
ATLANTIC, Jan. 3, 2013, available at http://www.theatlantic.com/business/archive/2013/
01/why-are-college-textbooks-so-absurdly-expensive/266801/.
127See id.
128See Mattioli, supra note 110, at 247.
129See Adam Vaccaro, Why It’s Difficult for Your Library to Lend Ebooks,
BOSTON.COM, June 27, 2014, http://www.boston.com/business/technology/2014/06/27/
why-difficult-for-your-library-stock-ebooks/rrl464TPxDaYmDnJewOmzH/story.html.
130See id.
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DIGITAL FIRST SALE DOCTRINE 245
rights of purchasers and libraries. However, a digital first sale doctrine
would allow libraries to purchase secondary ebooks at low prices. This
would doubtless allow people who could not otherwise afford to buy
ebooks to enjoy them through libraries.
The broader argument is that for those who cannot afford to purchase
new ebooks, secondary markets for ebooks could provide a way to fulfill
their needs:
Many pensioners and people who faced life changing disabilities are down-
loading and pirating ebooks. They simply are in a position where their
monthly income is not enough to sustain their entertainment needs, which
become more expensive every year. After bills, food, and expenses, there
is not enough money left over to entertain yourself. It is easy to feel sym-
pathy towards this demographic of people, but in effect it hurts the entire
industry.131
In sum, consumers can benefit from secondary markets because they
can more easily obtain copyrighted works at cheaper prices. Libraries
will be in a better position if they can purchase pre-owned ebooks
through secondary markets when they have to negotiate with publish-
ers. Making more creative works available to more people is critical to
the development of culture. As Julie Cohen observes, “[W]ithout the raw
materials necessary for social and cultural participation, one cannot par-
ticipate meaningfully in the development of culture and community.”132
Promoting Innovation
The existence of secondary markets leads to product innovation be-
cause copyright holders of original products must constantly provide
updated products in order to compete with lower-priced products avail-
able in secondary markets.133 Innovation can also be accomplished by
consumers who creatively interact with cultural works without fear of
copyright liability, and innovation can be initiated by secondary mar-
ket online providers.134 The existence of secondary markets can lead
to reducing consumer lock-in by allowing consumers to recover their
investments, thereby giving consumers more opportunities to switch
131Kozlowski, supra note 119, at para. 6
132COHEN,supra note 19, at 224.
133See Perzanowski & Schultz, supra note 102, at 897.
134See id. at 898.
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246 Y. SANG
to different platforms.135 Additionally, the existence of secondary mar-
kets could facilitate more transactions.136 If consumers could resell their
ebooks, the possibility of recouping money spent on ebooks would allow
consumers to buy more ebooks.
Once secondary markets exist, content providers, platform providers
and other pertinent stakeholders would be likelier to consider vari-
ous ways to enhance their competitiveness in the market. As Stephen
McIntyre points out, “[T]he first sale doctrine and competition are
intrinsically linked.”137
It is worth noting that interoperability, in most conditions, generally
tends to engender innovation, although the relationship between inter-
operability and innovation is highly complex and context-specific.138 To
explore an often assumed causal relationship between interoperability
in ICTs and innovation, Urs Gasser and John Palfrey examined three
cases in which the issue of interoperability played out: digital rights
management in music distribution both offline and online, various forms
of digital identity systems, and Web services.139 Based on case studies of
the three cases along with in-depth interviews and research workshops,
they concluded: “[I]ncreased levels of ICT interoperability generally fos-
ter innovation. But interoperability also contributes to other socially
desirable outcomes,” such as the positive impact on “consumer choice,
ease of use, access to content, and diversity, among other things.”140
Currently, major ebook retailers like Amazon and Apple, operate
closed ebook ecosystems that limit customers’ freedom to choose other
retailers’ products. Providing access to ebooks has become increasingly
a common way to deliver monographs in many libraries, but the lack of
standardization in ebooks limit libraries’ ability to serve their patrons.
For instance, if a certain digital book is available only through a partic-
ular format, libraries must purchase other books that can be read in a
different format.
135See id. at 900 (Consumer lock-in takes place “when the costs of switching to a new
vendor or technology platform are sufficient to discourage consumers from adopting an
otherwise preferable competitive offering.”).
136See Mattioli, supra note 110, at 248.
137Stephen J. McIntyre, Game Over for First Sale,29BERK.TECH. L. J. 1, 45 (2014).
138See Urs Gasser & John Palfrey, Breaking Down Digital Barriers:
When and How ICT Interoperability Drives Innovation, at ii., available at
https://cyber.law.harvard.edu/interop/pdfs/interop-breaking-barriers.pdf.
139Id.
140Id. at 12.
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DIGITAL FIRST SALE DOCTRINE 247
Preservation
Not surprisingly, copyright holders, while providing users with ac-
cess to digital copies through restrictive license agreements, are largely
silent about facilitating preservation of cultural works. Both individu-
als and society as a whole benefit from preservation of cultural works
because preservation helps people access copyrighted works that may
no longer be available through copyright owners.141 Many books are
available only in digital format, which in terms of preservation, is prob-
lematic. For example, an author of a novel can publish a book as an
ebook-only option and later decide to eliminate it from the market. In
that case, if the book is licensed under, for example, the Kindle Store
Terms of Use, there is no way for individuals to legally access the ebook.
Libraries are challenged because if they do not purchase a license they
cannot preserve cultural works.
The issue of making duplicate copies for archival preservation can be
addressed in the context of fair use, but the first sale doctrine clearly
helps libraries and archives to fulfill their mission of preserving cultural
works.142 As Aaron Perzanowski and Jason Schultz point out, “If we wish
to preserve the benefits of access, preservation, privacy, transactional
clarity, user innovation, and platform competition, we must find a way
to reinvigorate [the first sale doctrine] in the face of digital distribution
and technological protection measures.”143
CONCLUSION
This study demonstrates ways in which the notion of cultural democ-
racy can promote socially beneficial policy effects of the first sale doc-
trine. These ways include promoting the affordability and availability,
preservation and innovation of creative works. The study also addresses
the implications of the concept for digital content consumers and their
access to creative works. Cultural democracy values individuals’ self-
determination through active participation in the cultural sphere.144 It
also implies a commitment to the decentralization of meaning-making
power.145 In addition, the values advocated by cultural democracy are
compatible with those of public libraries — public institutions that can-
not be fully supported by economic efficiency practices.
141See Perzanowski & Schultz, supra note 102, at 895.
142See Reis, supra note 51, at 190.
143Perzanowski & Schultz, supra note 102, at 945.
144See Bracha & Syed, supra note 2, at 253-56.
145See id. at 256.
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248 Y. SANG
In the digital age, enabled by digital technologies and the Internet,
ordinary people are increasingly empowered in terms of their ability to
challenge cultural authorities.146 New media technologies lower barri-
ers of entry into the process of cultural production and distribution,
although access to technology itself does not guarantee people’s ac-
tive and critical participation in cultural meaning-making processes.147
What matters now is that even though technological developments have
opened opportunities to challenge cultural authorities, the current copy-
right system is not ready to fully embrace the potential of participatory
culture.148 As noted above, mash-ups, remixes and a great deal of user-
generated content are vulnerable to copyright infringement claims ei-
ther because current copyright law does not clarify their legality or
because legal access must be fought on a case-by-case basis. This study
shows how the notion of cultural democracy can provide a solid theo-
retical ground for adopting a digital first sale doctrine to realize the
doctrine’s policy implications in the digital environment and for copy-
right reforms, in general.
Normative and positive studies have respective goals and objectives.
The purpose of this study lies in providing a normative vision that can
guide the shaping of the digital culture, rather than providing evalua-
tions or predictions based on positive analyses with respect to a digital
first sale. Future studies, based on economic analyses, need to comple-
ment this study by providing a comprehensive picture of the issue of
resale of digital goods.
Based on the discussion of cultural democracy, this normative study
demonstrates that future discussions of copyright reform need to con-
sider fully the role that public libraries play in furthering democratic
values in our society. Therefore, it is recommended that Congress adopt
a provision that prevents publishers and copyright holders from impos-
ing nonnegotiable licensing terms on libraries. Because of the significant
contributions of libraries to society at large, Congress should consider a
special exception for digital works that parallels the provisions of Sec-
tion 108 of Copyright Act. In so doing, technological developments, such
as an ever-developing “forward-and-delete” technology and an aging file
technology with respect to an implementation of digital resale should
be fully considered. Importantly, Congress should bear in mind that the
146See SUNDER,supra note 10, at 58. It should be noted that those possibilities are
often limited by copyright holders who rigorously enforce their copyrights through legal
and technological measures.
147See id. at 48.
148See JENKINS,supra note 13, at 198.
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DIGITAL FIRST SALE DOCTRINE 249
ultimate beneficiary of copyright legislation is the public not the copy-
right holders when weighing the interests of copyright holders against
the interests of digital content consumers.
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