Motorola: First-sale doctrine — what’s that?

by Mathew on November 3, 2008 · 6 comments

I would take this one with a large grain — perhaps even a boulder — of salt, but according to a report in The Register, wireless-handset maker Motorola is planning to get buyers of its new, ultra-expensive Aura handset to sign something saying they won’t sell the device on eBay. The report (from the usual unnamed source) says that buyers would be required to sell the handsets back to Motorola if they didn’t want them any more. This has drawn scoffs from a number of commenters at Gizmodo and elsewhere, and rightly so, since such a policy would almost certainly be a breach of the so-called “first-sale doctrine” (in the United States, at least).

In a nutshell, the first-sale doctrine — which was originally created to cover patented items, but has since been extended to cover copyrighted material as well, such as records and CDs — prevents a patent-holder or manufacturer from extending their control over an object or piece of content beyond the first sale of that object or content. In other words, “the first unrestricted sale of a patented item exhausts the patentee’s control over that particular item.” This is to allow buyers of CDs and other products to sell them through second-hand stores, or to loan them to friends.

A number of companies — including software maker Autodesk — have tried in the past to get around the first-sale doctrine by describing the purchase of their products as a “license” rather than a sale, with contract language or end-user licensing agreements that restrict the buyer from doing whatever they want with it, but the courts have frowned on that.

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