My initial comments to one of Derek Slater's posts about the Rhapsody music service ballooned into a rather long back-and-forth conversation about the scope of "first sale" rights or privileges, and what those rights might mean for users of subscription-based music services.
My initial take was that section 109, the section of the Copyright Act codifying the "first sale" doctrine, did not afford to someone who merely rented a copy of a work the same freedom to redistribute that copy however they wished that a purchaser of a copy is given. For example, if I buy a a copy of a book, I am free to resell that book to someone else, even if the copyright owner objects, and even if (in the absence of the first sale doctrine) copyright law would otherwise regard my reselling as a "distribution" of the work in copies that would infringe on the exclusive right of distribution under 17 U.S.C. Sec. 106. But my (initial) take was that 109 would not grant me similar privileges with respect to a DVD I had rented from Blockbuster. So if I sold my rented DVD, not only would Blockbuster be irked and charge me fees for violating the rental contract (and perhaps call the local cops), but there could potentially be copyright implications -- remote as the possibility of an actual lawsuit might be.
After the back and forth with Derek, I'm not so sure. Derek says, in essence, that once the copyright owner sells a copy of work to someone else, then the copyright owner's distribution rights with respect to that particular copy are gone, and so section 109 permits (or rather, does not forbid) me to resell my rented copy of a Blockbuster DVD to someone else (although there may be all sorts of non-copyright property issues with this, like breach of contract, theft, etc.) The "first sale doctrine," as developed through court cases over the past century or so, does characterize the distribution right with respect to a particular copy as being "extinguished" after the "first sale" of that copy. So Derek is spot on in analyzing rights under the traditional first sale doctrine.
But the judge-made law of first sale was codified in the 1976 Copyright Act (in 17 USC 109) and has been tinkered with ever since. For example, there are special provisions in 109 for computer software and sound recordings of music. If you buy a music CD or a software program, section 109 would generally grant you the right to resell that copy or redistribute it without violating the author's distribution right in the work. But 109 says that for these types of works, you may not rent or lend out your copy (unless you're a library under certain circumstances). So if you wanted to take your huge CD collection, and start a shop renting our music CDs the way Blockbuster does for movies, you couldn't -- unless you obtained permission from the copyright owners in the CDs. These limitations of "first sale"-type privileges with respect to certain classes of works and certain users, along with similar tinkering with 109 over the past 30 years, suggests that the first sale doctrine today may be quite different from what it used to be. That is, it is no longer clear to me whether the traditional notion that an initial sale of a copy completely "extinguishes" the distribution right with respect to that copy, or whether 109 might better be characterized as allowing a copyright owner's distribution rights to continue with respect to that copy, but merely providing certain specific privileges to purchasers.
The answer would seem to bear on what copyright law would allow users of subscription music services to do with the music they obtain through the service (as opposed or in addition to what might be allowed or prohibited by contract or other areas of law).
The conversation with Derek was very enlightening (so thanks Derek for pointing out various things I had glossed over), but he seems to agree it's still quite murky. (As that old journalistic crutch goes, "it raised more questions than it answered....")