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- Title
NFTS AND THEIR DIGITAL FIRST SALE DOCTRINE APPLICABILITY.
- Authors
MCELWAINE, ELLA
- Abstract
The long-standing first sale doctrine, codified at 17 U.S.C. § 109, provides that the owner of a reproduction of a work receives the right to sell, display, or otherwise dispose of that particular copy, notwithstanding the exclusive rights of the copyright owner in the work. The emergence of blockchain technology raises new questions in copyright law and whether the time has now come for Congress to address the creation of a digital first sale doctrine. The digital goods exception created in Capitol Records L.L.C. v. ReDigi Inc. established that under the Copyright Act, the downloading of digital music constitutes reproduction. Therefore, the first sale doctrine does not apply to digital goods because they are transferred via what the Copyright Office has determined to be a reproduction. Consequently, the first sale doctrine has been consistently found to be limited to material items, rather than intangible digital goods. Blockchain and non-fungible tokens (NFTs) bring up novel questions under the first sale doctrine of copyright. The nature of NFTs makes it so that they are not hounded by issues, such as "double spending," that many other digital technologies create. This article will explore how a digital sale first doctrine should be created to account for emerging technology and the development of the blockchain. Moreover, the digital goods first sale doctrine could be created to adhere to the goals of the first sale doctrine by considering solutions put forward by scholars, such as basing the first sale doctrine in rivalrousness rather than tangibility and by using the European Union's First Download Doctrine. The current solution to the digital goods exception to the first sale doctrine is smart contracts. However, smart contracts and licensing are an imperfect solution to the digital goods exception. Copyright holders should consider the benefits of a digital first sale doctrine to NFTs, including how NFTs discourage piracy and "user proliferation," while encouraging purchases and opening new markets.
- Subjects
BLOCKCHAINS; NON-fungible tokens; COPYRIGHT
- Publication
IDEA: The Intellectual Property Law Review, 2024, Vol 64, Issue 2, p518
- ISSN
0019-1272
- Publication type
Article