Draft:Not for resale
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"Not for resale" is a term used in commerce and copyright law to restrict the commercial resale of goods, particularly those distributed as promotional items, review copies, or software licenses. The phrase carries legal significance, especially in the context of the first sale doctrine under U.S. copyright law. The enforceability of "not for resale" restrictions has been the subject of several major court cases, including Vernor v. Autodesk, Inc. (2010) and Kirtsaeng v. John Wiley & Sons, Inc. (2013), which clarified the legal boundaries of ownership, licensing, and resale rights. These rulings have influenced consumer rights, digital content licensing, and international commerce.
The "not for resale" designation has been widely used in publishing, technology, and entertainment industries to signal that a product is not meant to be sold again by the recipient. For example, it is often found on advance reader copies of books, promotional CDs, or demo software. While this label implies a restriction, it does not always carry legal force — particularly when the first sale doctrine applies.
The first sale doctrine, codified in 17 U.S.C. § 109(a), allows the owner of a legally acquired copyrighted work to resell it without the copyright holder’s permission. This doctrine has long protected the secondary market for books, films, music, and physical media.
However, the doctrine’s application to digital goods and items marked “not for resale” has generated legal uncertainty. The distinction between a sale and a license is critical: if a transaction is considered a license, resale rights may be limited or non-existent.
Vernor v. Autodesk, Inc. (9th Cir. 2010): In Vernor v. Autodesk, the plaintiff purchased used copies of AutoCAD software on eBay, which Autodesk claimed were only licensed—not sold—to the original users. The Ninth Circuit sided with Autodesk, holding that the software was distributed under a license, not a sale, and that the first sale doctrine did not apply. Kirtsaeng v. John Wiley & Sons, Inc. (U.S. Sup. Ct. 2013): In contrast, the U.S. Supreme Court in Kirtsaeng v. Wiley held that the first sale doctrine does apply to goods lawfully made abroad. Supap Kirtsaeng, a Thai student, resold foreign editions of textbooks marked “Not for resale” in the U.S. Wiley sued, arguing that 17 U.S.C. § 109(a) didnt apply to foreign-manufactured goods. The Court ruled 6–3 in Kirtsaeng’s favor.
In Kirtsaeng, Justice Ginsburg authored a dissent arguing that the majority ruling could harm publishers and creators by enabling the gray market resale of foreign goods, undermining pricing strategies and licensing systems. Impact on Law, Society, and Economics The legal interpretation of "not for resale" continues to influence debates around intellectual property, digital ownership, and consumer rights. Key impacts include: - Digital Content Licensing - Consumer Markets - International Trade - Legal Uncertainty
References / Citations
[edit]Vernor v. Autodesk, Inc., 621 F.3d 1102 (9th Cir. 2010), available at [Ninth Circuit PDF link].[1] Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013), opinion available at [Justia link], [Library of Congress PDF].[2] Berrier, Not the Last First Sale? Vernor v. Autodesk, Inc., 46 Wake Forest L. Rev. 867 (2011), available as PDF from WakeForestLawReview.com.[3] First Sale Doctrine — Kirtsaeng v. John Wiley & Sons, Inc., Harvard Law Review PDF.[4] Northwestern Law Review, An Analysis of Vernor v. Autodesk…, available via ScholarlyCommons.[5] Wired, “Guess What, You Don’t Own That Software You Bought.” Wired, “Supreme Court Boosts Right to Resell Copyrighted Goods.”[6] [7] EFF, “EFF Asks Appeals Court to Review Dangerous 'First Sale' Decision.”[8] Publishers Weekly, “What Does Kirtsaeng v. Wiley Mean For the Industry?”
1. https://cdn.ca9.uscourts.gov/datastore/opinions/2010/09/10/09-35969.pdf?utm_source=chatgpt.com 2. https://supreme.justia.com/cases/federal/us/568/519/?utm_source=chatgpt.com 3. https://www.loc.gov/item/usrep568519/?utm_source=chatgpt.com 4. https://www.wakeforestlawreview.com/wp-content/uploads/2014/10/Berrier_LawReview_11.11.pdf?utm_source=chatgpt.com 5. https://harvardlawreview.org/wp-content/uploads/2013/11/vol127_kirtsaeng_v_john_wiley.pdf?utm_source=chatgpt.com 6. https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1163&context=njtip&utm_source=chatgpt.com 7.https://blog.ericgoldman.org/archives/2010/09/vernor_v_autode.htm?utm_source=chatgpt.com 8.https://www.wired.com/2013/03/scotus-first-sale-decision/?utm_source=chatgpt.com 9.https://www.eff.org/deeplinks/2010/10/eff-asks-appeals-court-review-dangerous-first-sale?utm_source=chatgpt.com
- ^ https://cdn.ca9.uscourts.gov/datastore/opinions/2010/09/10/09-35969.pdf
- ^ "Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519 (2013)". Justia Law. Retrieved 2025-07-10.
- ^ https://www.wakeforestlawreview.com/wp-content/uploads/2014/10/Berrier_LawReview_11.11.pdf
- ^ https://harvardlawreview.org/wp-content/uploads/2013/11/vol127_kirtsaeng_v_john_wiley.pdf?utm_source=chatgpt.com
- ^ https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1163
- ^ Kravets, David. "Supreme Court Boosts Right to Resell Copyrighted Goods". Wired. ISSN 1059-1028. Retrieved 2025-07-10.
- ^ Balasubramani, Venkat (2010-09-16). "Software Vendor Trumps First Sale Doctrine via License-Vernor v. Autodesk". Technology & Marketing Law Blog. Retrieved 2025-07-10.
- ^ McSherry, Corynne (2010-10-13). "EFF Asks Appeals Court to Review Dangerous 'First Sale' Decision". Electronic Frontier Foundation. Retrieved 2025-07-10.