Gary Miller
Congress is working with a very sensitive scale and it would be tough enough to keep things steady without copyright holders sneaking over and sticking a big toe on the edge every time they feel threatened. It is true that Congress (or at least some member or members of Congress) might have expected parties to contract around the first sale requirement, and of course, the copyright holders assert that, with the world changing too fast for the statute to keep up, therefore the big toe has been absolutely necessary for protection from looting, piracy and/or insolvency–in other words, for protection from significant scale tips in the opposite direction. But if licensing schemes merely serve a loophole function for skirting adherence to federal law, one would assume that the skirted law in question is trivial–a detail or a technicality–and generally unnecessary as a means to the overall statute’s charged interest of progress in the name of the public interest. This is not the case. This Note argues that the first sale doctrine is a necessary limit on the scope of protection granted to copyright holders under the federal statute, and when the public interest so dictates, the enforceability of contractual restrictions on the resale or disposition of lawfully purchased copies of copyrighted works should be held preempted by federal law. Part I will examine the ways in which an obliterated first sale doctrine disrupts the balance between creation, access and innovation that Congress is charged, in the name of public interest, with carefully maintaining. Part II will put forth a policy-based framework under which licensing agreements could potentially be held preempted by federal copyright law on the grounds of public interest.