The first sale doctrine is the copyright rule that lets you resell, lend, give away, or throw out a physical copy of a work you lawfully bought, without asking the copyright holder for permission. It’s codified at 17 U.S.C. § 109, and the idea behind it is simple: once the copyright owner authorizes the sale of a particular copy, their control over that specific copy ends.1Office of the Law Revision Counsel. 17 USC 109 – Limitations on Exclusive Rights: Effect of Transfer of Particular Copy or Phonorecord That’s why used bookstores, thrift shops, libraries, art galleries, and resale platforms can operate without infringement claims hanging over every transaction.
What the Doctrine Lets You Do
Section 109(a) says that if you own a particular copy of a copyrighted work that was lawfully made, you can sell it, donate it, discard it, or otherwise dispose of it without the copyright holder’s involvement.1Office of the Law Revision Counsel. 17 USC 109 – Limitations on Exclusive Rights: Effect of Transfer of Particular Copy or Phonorecord The copyright holder still owns the work itself and keeps the exclusive right to make new copies. What they lose is any say in what happens to the specific physical unit already sold.
The statute turns on two words: “lawfully made.” Your copy has to be a legitimate, authorized product. A bootleg DVD or a pirated textbook never triggers first sale protection, because it wasn’t authorized to begin with. Buy the real thing, and you can do what you like with that copy. Buy a counterfeit, and reselling it is a fresh infringement.
Ownership Versus a License
The doctrine only protects people who actually own the copy. Section 109(d) makes that explicit: possession you obtained by rental, lease, loan, or any other arrangement that didn’t transfer ownership doesn’t come with first sale rights.1Office of the Law Revision Counsel. 17 USC 109 – Limitations on Exclusive Rights: Effect of Transfer of Particular Copy or Phonorecord
That distinction is why software resale is such a different animal from reselling a paperback. Buy a printed book and nobody questions that you own it. Buy or download software and the terms of service almost always say you’ve been granted a license, not a copy. The Ninth Circuit’s decision in Vernor v. Autodesk gave courts a working test for sorting the two apart: whether the agreement calls itself a license, whether it significantly restricts the user’s ability to transfer the software, and whether it imposes notable limits on how the software can be used. Hit all three and you’re a licensee, and first sale won’t help you resell.
Rentals of Music and Software
Even when you genuinely own the physical copy, Congress has carved out certain rental transactions. A 1984 amendment to Section 109(b) prohibits commercial rental of sound recordings without the copyright holder’s permission.2GovInfo. Public Law 98-450 – Record Rental Amendment of 1984 The worry at the time was that rental stores would displace record sales, with customers renting an album, copying it at home, and returning the original. A 1990 amendment extended the same rental ban to computer programs.
The restrictions apply only to rentals made for commercial advantage. Nonprofit libraries and educational institutions are exempt. A public library can lend CDs and software to patrons, provided it’s doing so on a nonprofit basis and, for software, affixes the required copyright warning to the packaging.1Office of the Law Revision Counsel. 17 USC 109 – Limitations on Exclusive Rights: Effect of Transfer of Particular Copy or Phonorecord Video games embedded in dedicated consoles fall outside the rental ban as well, which is why console game rental services have historically operated without the same legal headache.
Copies Manufactured Abroad
Publishers and manufacturers long argued the first sale doctrine only applied to copies made in the United States. If that were true, importing and reselling a foreign-printed textbook or an overseas-made product could be infringement. The Supreme Court settled the question in 2013.
In Kirtsaeng v. John Wiley & Sons, a student bought cheaper international editions of textbooks in Thailand and resold them in the United States. The publisher sued, arguing its copyrights weren’t exhausted by foreign sales. The Court disagreed 6-3, holding that the first sale doctrine applies to any copy lawfully made with the copyright holder’s authorization, regardless of where it was manufactured.3Justia. Kirtsaeng v. John Wiley and Sons Inc., 568 U.S. 519 (2013) The Court flagged the consequences of the opposite reading: libraries would need permission to circulate millions of foreign-printed books, and used-book dealers would face potential liability for every foreign title on their shelves.
Patent Exhaustion
The same basic idea runs through patent law under the label of exhaustion. In Impression Products v. Lexmark, Lexmark sold printer cartridges with contractual restrictions against refilling and resale. Third parties refurbished and resold the cartridges anyway, and Lexmark sued for patent infringement.
The Court held that once a patent holder makes an authorized sale, its patent rights in that item are exhausted, regardless of any restrictions imposed by contract and regardless of whether the sale happened in the United States or abroad.4Supreme Court of the United States. Impression Products Inc. v. Lexmark International Inc. (2017) A buyer who breaks the contractual restriction might face a breach-of-contract claim, but not a patent suit. That matters for anyone refurbishing or reselling patented items like electronics, auto parts, or medical devices.
Trademarks and the Material Difference Rule
Trademark law follows the exhaustion principle too, with one significant catch. If you resell a genuine branded product that is materially different from the version the brand sells through authorized channels, the trademark holder can sue for infringement. Courts treat the non-identical product as no longer genuinely representing the brand, even though it started out authentic.
The threshold for a material difference is deliberately low: any difference a consumer would likely consider relevant to a buying decision qualifies. Physical alterations count, such as different packaging, reformulated ingredients, or modified components. So do non-physical differences like the absence of a manufacturer’s warranty, customer support, or access to loyalty programs. Standard trademark infringement remedies let the brand owner recover the defendant’s profits, actual damages (which the court can treble), and litigation costs.5Office of the Law Revision Counsel. 15 USC 1117 – Recovery for Violation of Rights Selling a genuine product with material differences is a separate theory from counterfeiting, which involves putting a fake brand name on a product and carries much steeper statutory damages.
Digital Files Are Outside the Doctrine
The first sale doctrine was built around physical objects, where reselling means handing over the one copy you have. Digital files don’t work that way. Transferring an MP3 or an e-book copies data to a new location, and even if the original is deleted, the process creates a new reproduction. Reproduction is the copyright holder’s exclusive right, not yours.
The Second Circuit addressed this directly in Capitol Records v. ReDigi, a case involving a service that let users resell iTunes purchases. ReDigi argued its technology moved the original file rather than copying it, but the court found the transfer inevitably created new copies on ReDigi’s servers and on the buyer’s device. Each was an unauthorized reproduction under the Copyright Act, and first sale didn’t apply.6Justia Law. Capitol Records LLC v. ReDigi Inc., No. 16-2321 (2d Cir. 2018)
That’s the fundamental divide between physical and digital media in copyright law. You can resell a CD but not the album you downloaded, even at the same price point. No federal legislation has extended first sale rights to digital goods, and because most digital storefronts sell licenses rather than copies, most consumers don’t own anything that could be resold in the first place.
Practical Points for Resellers
First sale protects your right to resell the item. It doesn’t give you unlimited freedom with the brand’s name and imagery. Trademark law lets you reference brand names to describe what you’re selling under a doctrine called nominative fair use, but only as much of the mark as necessary to identify the product, and your listing can’t suggest you’re affiliated with, endorsed by, or an authorized dealer of the brand.
A few habits reduce legal exposure for anyone reselling branded goods at scale. Stick to the brand’s word mark rather than its logo or stylized designs. Keep the brand name out of your business name, domain, and social handles. A short disclaimer that you aren’t affiliated with the brand can help where confusion is plausible. And if you’re sourcing outside the brand’s authorized distribution channel, watch the material difference issue closely: a missing warranty or altered packaging can turn a lawful resale into a trademark claim.