Article by:
P. Sean Morris

36 Campbell L. Rev. 107 (2014)

INTRODUCTION. This Article investigates the nature of digital exhaustion and argues that a regime for digital exhaustion should become global in nature and enforced through international dispute settlement systems, such as that of the World Trade Organization (WTO). This would reflect the global nature of e-commerce and create a harmonized international copyright regime for the exhaustion of digital products. Courts across the globe have been battling with how to handle these questions. While such questions may be the domain of national copyright laws, the problem with exhaustion of digital goods has been extended beyond the scope of such laws. For example, in UsedSoft GmbH v. Oracle International Corporation, the Court of Justice of the European Union (CJEU) held that the exhaustion of digital goods extended to the resale of used software that is downloaded from the Internet as long as the copyright holder has previously authorized the actual download. This ruling gives consumers the right to resell legally downloaded software in Europe without any authorization from the copyright holder. The principle of exhaustion, as applied in this decision, is regional exhaustion. However, the existence of international copyright treaties, such as the World Intellectual Property Organization Copyright Treaty (WIPO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), should be seen as vehicles that can create a global exhaustion regime for digital goods. The question remains—is this possible, and if so, should the current non-existent international regime of exhaustion remain intact?

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