Abstract

The U.S. Copyright Act grants copyright owners the exclusive
right to distribute their copyrighted works. The first sale doctrine,
codified in § 109(a) of the Copyright Act, curtails these distribution
rights by exhausting the owner’s exclusive right after the copyrighted
item is placed in the stream of commerce. However, it is not clear
whether the language used in the Act, “copies made under this title,”
is inclusive of copies manufactured abroad or limited to copies
manufactured in the United States. The Supreme Court recently
interpreted § 109(a) in Costco Wholesale Corp. v. Omega S.A.; yet,
the Court’s holding did little to clarify the ambiguity surrounding the
application of the first sale doctrine. The Court’s failure to resolve
the issue has the potential to cause significant harm to the U.S.
economy and eliminate the rights of consumers and small business.

This Article suggests that the solution to determining whether the
first sale doctrine is, in fact, applicable to copies manufactured
abroad, is to incentivize Congress to amend § 109(a) and bring it into
conformity with the true aims of copyright law—to promote
knowledge via creation and distribution. In doing so, Congress
should redraft this portion of the Act broadly to accommodate the
domestic sale of copyrighted goods lawfully manufactured and sold
abroad. This proposed expansion of the first sale doctrine will yield
new discoveries and stimulate learning in accordance with the aims
of copyright law.