Shrinkwrapped Books

Joe Gratz flags a recent news item about “shrinkwrapping” books, noting the first sale doctrine under Section 109 of the Copyright Act and the venerable opinion in Bobbs-Merrill v. Straus, which specifically avoided deciding whether a restricted-use contract, affixed to a book, would be enforceable.

It’s worth adding to Joe’s post that the principle underlying the first sale doctrine didn’t originate with Bobbs-Merrill; instead, that case gave existing common law rules regarding sale and ownership of chattels particularly clear expression in the context of two things: There was the copyright statute, which gave the copyright owner the exclusive right to “vend” copies of the copyrighted book, and antitrust law, which wasn’t part of the Supreme Court’s opinion but which occupied a lot of the Court’s thinking around that time. The fact that “first sale” has common law origins reminds us that the principle is more flexible than firm, that it can be and has been attacked, particularly in the software area, and that to preserve it we must do more than simply declare that it’s a time-honored tradition of copyright.