Wilt Toikka Kraft LLP


Navigating Copyright Prosecutions: Insights from Maryland IP Lawyers on the First Sale Doctrine Challenges

Navigate the complexities of criminal copyright prosecutions with insights from Maryland IP Lawyers. A persistent source of confusion in these cases is the “first sale doctrine,” a statutory restriction on the exclusive rights of copyright owners. Defendants often challenge prosecutions, asserting a belief in a legitimate first sale of the works they sold. Notably, inadequacies in the government’s proof on this issue have led to overturned convictions. A federal prosecutor, particularly one well-versed in the first sale doctrine, is crucial when contemplating criminal copyright cases.

Codified at 17 U.S.C. § 109, the first sale doctrine grants individuals the right to sell, display, or dispose of a purchased copy of a copyrighted work, despite the copyright owner’s interests. However, this right concludes once the owner has sold that specific copy. It’s essential to recognize that the first sale doctrine doesn’t shield defendants making unauthorized reproductions, making it an unsuccessful defense in cases alleging infringing reproduction.

Moreover, privileges under the first sale principle do not extend to those who acquire possession without ownership through rental, lease, loan, or other means. Given that most computer software is distributed through licensing agreements, where the copyright holder retains ownership, alleged infringers may struggle to establish a first sale of these works.

While courts concur on the application of the first sale principle to criminal prosecutions, there is disagreement on the burden of proof. Some cases suggest that the U.S. must prove the copyrighted work was not the subject of a first sale, while others view the first sale issue as an affirmative defense to be raised by the defendant. Refer to the Computer Crime and Intellectual Property Section’s Intellectual Property Rights Prosecution Manual for an in-depth discussion of the first sale doctrine and related case law. Maryland IP Lawyers offer valuable expertise in navigating these intricacies.

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