I’ve been waiting for this article for a while.
“But the first sale doctrine, (relatively) straightforward in the physical world, has been complicated by the easy copyability of digital works, the rise of EULAs, and the use of DRM and activation systems. Did the Castaway decision also pave the way for you to sell your MP3s? And if not, what’s the legal status of all that digital media the young people spend so much money on at iTunes and Amazon? Do they own it? Can they sell it? What about those Steam games? Can you resell that unopened copy of AutoCAD even though the EULA forbids it?
It occurs to me that a secondary digital music market still faces the challenges that the publishers face – namely competition from P2P networks and legal services like Pandora radio, last.fm, and others.
For me, the amount of effort it would take to sell an MP3 album I bought for $9 from Amazon isn’t worth the return I could get for selling that album as used.
That doesn’t mean it’s ok to restrict the resale of digital goods. As a consumer I’ve benefited greatly from this market with physical media. Once we start talking about $30-50 TV seasons downloaded from iTunes and Xbox Live Arcade games it gets a little more complicated, I think. Given the precedent of the physical-world resale market, I’m not so sold on the idea that a publisher should be able to restrict that market based upon verbose EULAs and license agreements.