Copyright Holders Can’t Tell Me What to Do!—Some Limits on the Exclusive Rights of Copyright Holders

My dogs, I return with a law post. Thanks to Sam Castree III (@indiegamelawyer on Twitter) for help researching this one.

I was asked on Twitter whether a copyright holder can keep you from selling copies of works that you bought. Basically, if you don’t own the copyright on a textbook, can the holder stop you from selling your copy?

Before we get started, my usual disclaimer applies: this is not legal advice; it’s basic information provided for an educational purpose, so I better not hear anyone relying on this post and solely this post when making any big decisions. Pay a lawyer, get specific and tailored legal advice.

That said, the Copyright Act limits a copyright holder’s exclusive rights to six specific points, enumerated in section 106. Copyright holders have the exclusive right:

  1. to reproduce the copyrighted work in copies or phonorecords;
    to prepare derivative works based upon the copyrighted work;
  2. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  3. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
  4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  5. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

17 U.S.C. § 106.

That’s why YouTube demonetizes videos with music and why Twitch will mute streams with music playing. If you want to broadcast a song you don’t own, you need a license. Since YouTube and Twitch don’t want to be sued for hosting your unlicensed work, they’ll shut you down proactively. Same requirement of a license applies if you want to perform a script publicly; likewise, fanfiction is out without the copyright holder’s consent.

How this plays out practically can vary wildly. Copyrights are only enforced insofar as the holder brings action to enforce them. This can range from the copyright holder sending a cease-and-desist to hiring the copyright infringer to work on the original IP.

“But Buddy, that doesn’t answer my question! I sold my old video games and textbooks—can the copyright holder stop me?”

Good thought—always question power until you find its limits. 106(3) above says that selling copies of a copyrighted work is an exclusive right of the copyright holder, right?

Actually, no. Copyright holders can’t restrict a secondary market based on copyright1.

Assuming you acquired your copy of a copyrighted work legally—you did, didn’t you?—you are allowed to sell or dispose of that copy. This is called the first-sale doctrine, codified in Section 109 of the Copyright Act; after the copyright holder transfers a copy of a work to you, they don’t have the right to prevent you from selling, donating, destroying, or otherwise desecrating that copy2. So sell your old games and textbooks, there’s nothing to stop you if you got them legally. You aren’t selling anything more than the copy you legally own3.

Incidentally, I used to work in a university bookstore, and I was one of the people working textbook returns. The company stocking the bookstore makes decisions based on advance sales for next year, new edition publication schedules, and a complex batch of local and regional sales data to determine what they’ll take back and what they won’t. The person at the desk has literally no control and no more information than you, and no ability to appeal for you. So chill. Rent ‘em if you don’t want the risk of keeping them.

If you have any questions about the law or just want to say hi, feel free to reach out on Twitter or email. Until then, sit. Stay. Speak. Good dog.

  1. A copyright holder can restrict a secondary market for other, non-copyright reasons, but I won’t address those here. Generally it would be stated as a restriction in the sales contract or as an industry regulation, but that doesn’t apply to most consumer goods you’ll encounter in your day-to-day.
  2. The Visual Artists Rights Act of 1990 (VARA) (17 U.S.C. § 106A) grants a visual artist some right to redress for violations of the right to integrity of their creation—meaning that under certain circumstances, they can sue someone for changing or destroying their work, even after the work is sold, but this is beyond the scope of the question I was asked.
  3. Just don’t make extra copies and sell those, because that would run afoul of 106(3). Don’t make Lars Ulrich cry. If you’re one of today’s youth and don’t get this joke, ask an old person from Napster times to explain it to you.

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