The U.S. Court of Appeals for the Ninth Circuit has been particularly active in recent years in adjudicating when the circumstances of varying transactions merit application of the “first sale doctrine” codified in §109(a) of the Copyright Act.1 This section provides that, notwithstanding the exclusive distribution right provided to the copyright owner in §106(3) of the act, “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.”2 Thus, under the first sale doctrine, once a copyright owner authorizes the sale of copies or phonorecords of a copyrighted work, he no longer may exercise the distribution right with respect to those particular copies.
As used in the first sale doctrine, the term “sale” is shorthand for any transfer of ownership, whether by contract, gift or otherwise. A transfer of ownership may occur notwithstanding the copyright holder’s contrary intention, such as occurred in UMG Recordings v. Augusto, decided on Jan. 4, 2011.3 There, the Ninth Circuit determined that the manner in which UMG Recordings distributed its promotional CDs resulted in a transfer of ownership to the recipients.
