In Derek’s July 15 posting, More on eBay Music and First Sale, he reminds us that MaryBeth Peter’s has some grand notions when it comes to the digital realm:
The problem is, the first sale doctrine only provides an exception to the right to distribute. It does not implicate copyright holders’ exclusive right to make copies of their works. If you were to resell your iTunes song, you would necessarily have to makie copies – a copy in RAM, in intermediate computers in transit, and a copy on the buyer’s computer. At least the latter and perhaps all would likely infringe the right to make copies, even though you might not infringe the distribution right. The only way you might be able to resell that song in a clearly legal way is to send the physical hard drive on which the song is stored to the other person.
The Register of Copyrights argued that first sale does not apply to the digital world.
Fair use, first sale — what’s going to be left of the "balance" upon which culture depends? (See Ernest’s note: Copyright Office on INDUCE Act (IICA): It isn’t Strong Enough)