without permission.[1] The term "first sale" refers to the copyright owner's initial first sale of an authorized copy. Once the owner has made this final sale of a particular copy, the owner has no power under copyright law to control what happens to that particular copy, at least with respect to most types of material.[2]
For libraries, the first sale doctrine is probably the most important concept in all of copyright law, because libraries couldn't function without it. Any library open to the public "distributes" work under the meaning of the Copyright Act by lending it.[3] Thanks to the first sale doctrine, libraries generally don't incur any liability for these unauthorized distributions, but there's a catch. As we stated above, the first sale doctrine only applies to authorized copies. If a library distributes an unauthorized copy, the first sale doctrine is of no help and the library will incur liability absent some other defense such as fair use.
At this point, you might be thinking: "Yes, I already know that my library could be liable for making unauthorized copies, so why should I worry about distributing unauthorized copies?" It's important to understand that copying and distribution are two separate issues, because your library could incur liability for distribution even when it's not liable for copying. For example, if a donor offers your library a paper copy of a dissertation that he obtained from another library's microfiche collection, your library won't be liable for the copying, but it may be liable for distribution if it lends the copy.
Another way your liable may be liable for distribution (and not copying) is when it distributes unauthorized copies that were made many years ago. For example, if your library's collection includes an unauthorized copy that a former staff member made thirty years ago, the statute of
- ↑ 17 U.S.C. § 109 (2006).
- ↑ For more background information on the first sale doctrine, see William F. Patry, Patry on Copyright § 13.15 (2006).
- ↑ One court has held that merely adding a work to the library's collection and cataloging it constitutes distribution. Hotaling v. Church of Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203 (4th Cir. 1997) ("When a public library adds a work to its collection, lists the work in its index or catalog system, and makes the work available to the borrowing or browsing public, it has completed all the steps necessary for distribution to the public.") However, another court has criticized Hotaling for its conclusion that distribution occurs when a library merely makes a work available for lending, holding instead that distribution occurs when a work is actually distributed. Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210, 1224-25 (D. Minn. 2008).
