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Attorney Article

Digital Technology Does Not Follow First Sale of Tangible Equivalents

DRI: In-House Defense Quarterly

Spring 2019

Authors: Adam R. Bialek, Michael Barer

Adam R. Bialek (Partner-New York) and Michael Barer (Associate-New York) weighed in on the Second Circuit’s affirmation of a Southern District of New York finding that a digital music resale platform infringed on the copyrights of an American record label regarding the music files being resold. Adam and Michael suggest that the Second Circuit’s decision “has reinforced a literal application of copyright as written rather than reconcile the intent of the first sale doctrine with modern technology.” Clarification of this issue will require an action by Congress or the Supreme Court, they say. “In the interim, physical copies of such recordings will continue to be legally transferrable while digital versions will not.” 

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