Do these terms violate the first sale doctrine?
(*Note: I've copy/pasted the terms at the bottom of this question)
This website produces DVD's for sale that teach how to use other 3rd party software. A few years ago I bought 4 DVD's from them that have since just been sitting in a bookcase collecting dust, so i decided to sell them. A friend suggested that I might try to offer them to the college school library that I had attended in the past, as they often will buy relevant material.
I'm not copyright guru, so maybe I'm just misinterpreting what they're trying to say, but it sounds like they're trying to claim copyright infringement if anyone sells their material, regardless of form (physical DVD or virtual), unless the "Library Version" of the DVD is purchased, which happens to be significantly more expensive.
Obviously...well, to me it seems obvious that would conflict with the first sale doctrine(granted all my training came from Wikipedia). Since I legally purchased the physical DVD's, they should be my property and I'm allowed to resale them to anyone. Including a school that would put them in their library for student use.
*Just to clarify I own 4 separate physical DVD's from them, I don't own a virtual copy, or the "Library Version" that they try to sell.
Notice: You are not allowed to copy, lend, redistribute, sell, lease, or license the content purchased on this site in any form except for institutions which purchase a Library version for lending and instruction.
The Library version allows the institution to lend the DVDs to the faculty, staff, students and other authorized users affiliated with the institution for use on and off institutional premises. Authorized users, however, may not copy the DVDs or lend them to unauthorized users. The Library version will only receive the physical DVDs and not the Downloads. Redistributing the downloads in any form is strictly prohibited since it would be a form of copying the content.
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1 Answer from Attorneys
From your perspective, it may not be so much a question of whether the terms "violate" the first sale doctrine as a question of whether your first sale doctrine rights are superior to the terms.
For starters, it warrants mentioning that the first sale doctrine, as codified since 1909, has never required that there be a sale at all. Under the current codification, you only need to be the "owner" of a copy that was "lawfully made" under the Copyright Act. 17 U.S.C. § 109(a) states, in relevant part, "Notwithstanding the provisions of section 106(3) [i.e., the copyright owner's exclusive right to distribute copies of the work], 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 otherwise dispose of the possession of that copy or phonorecord."
There is another part of the so-called first sale doctrine that is often forgotten, but helps explain the point Congress was trying to codify, and that is that "copies" and "copyrights" are two different things, and just because you own the copy does not give you any copyright over the work embodied in the copy, and conversely, just because you own the copyright does not give you any control over copies of it that you don't own. 17 U.S.C. § 202 states:
"Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object."
So, there you have it. If you own the copy, and the copy is a non-infringing copy, then you are entitled to sell it, lend it or give it away without needing the copyright owner's permission.
One word of warning, the Supreme Court has under consideration a specific question of whether the rule does not apply if the non-infringing copy was made outside of the United States. As silly as it seems, some U.S. copyright owners have been arguing, with some degree of success, that copies they (the U.S. copyright owners) make outside of the United States are not "lawfully made" under the U.S. Copyright Act (which gives them the exclusive right to make them) because the U.S. Copyright Act does not apply outside of the United States. See Kirtsaeng v. John Wiley & Sons, Inc., upon which the Supreme Court is expected to publish it's decision as early as tomorrow. http://www.scotusblog.com/case-files/cases/kirtsaeng-v-john-wiley-sons-inc/
So, just to be on the safe side, take a look at your copies to see whether there is any indication as to whether the copies were made outside of the United States.
I have represented a number of clients who have sold or rented DVDs, computer software, and textbooks over the objection of the publisher, and would be happy to consult with you further, or if the publisher in this case (which sounds like perhaps the publisher of the Eat 3D series) hassles you about it. But keep in mind that, at least at this time, I am not your attorney, and this response is for general information on the first sale doctrine, and not specifically with respect to how it applies to the DVDs you own or your rights with respect to the publisher or seller. The details might change the picture. For example, if you agreed with the seller that you would not re-sell them, and the seller is not the copyright owner, your attorney might want to explore whether this would be a breach of contract even if not copyright infringement. Section 109 is a limitation on the rights of copyright owners, not on the rights of anyone else.
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