It might seem silly to have to remind people of this, but yes, you can sell your old CDs, DVDs, books, vinyl records, and console games.
Although copyright law gives the copyright holder the right to prevent people from “distributing” copies of their works, there’s a big limitation to that right: You can sell, lend, or give away any copies that you own, as long as they were made legally.
So that means you can resell, lend, or give away any legally produced copies that you own.
This ability to distribute the copies that you own is called the “first sale doctrine,” because it’s what allows buyers to do what they want with the copy after that first sale. It’s how the law balances the intellectual property rights of the copyright holder with the, well, physical property rights of the thing itself. Which is why Stephen King can’t stop you from doing whatever you like with your copy of The Stand.
[There’s an odd bit of the law that says you can’t rent out CDs records, tapes, or other audio media without permission, though. The same is true for most computer programs. However, programs that are embedded in devices and can’t normally be copied (like the software that runs your new TV, or your car) and console games are both fine.]
What about MP3s, ebooks and other digital files?
The simple answer about digital files that you bought as downloads is that, no, you can’t typically resell them. There are several reasons why.
- Digital “transfers” are actually making copies
The first reason is that if you tried to transfer the files to someone else, you would actually be making a copy of those files. But according to the law that lays out the first sale doctrine, you only have the right to distribute, not to reproduce, the music. If I mail, or hand over, a book or CD to a friend, I’m depriving myself of the item’s use as I give it to her. But if I fax her a book or email a music file, both of us retain a copy. And that reproduction would be a copyright infringement.
You may be wondering if you’d be violating copyright by sending digital files, like MP3s, to a friend if your computers were equipped with a DRM system that deleted the file from your own hard drive in the process. This way you wouldn’t be able to use the content after you’ve given your copy away. Although this would seem to replicate what happens in an old-fashioned transfer of property, systems like this one haven’t done well in court.
- Digital Stores Restrict Transfers
The second reason you probably wouldn’t be able to sell your digital files is that these files are usually (but not always) sold under an agreement with the customer that the customer won’t resell them. The long stretch of legalese you probably clicked “I Agree” on at some point in setting up your account likely had some language in it that said you agreed not to resell the copies of the files.
- You Might Not Have Actually Bought Those Files
That same fine print contract probably had another provision in it that keeps you from selling your digital music files. Most software, and now, a lot of digital media, comes with a provision that says you didn’t actually buy the thing you thought you bought; you were only licensing it. That’s a bit of an odd phrasing, but the general point of the language is that you don’t actually own your copy of the file—you’re just sort of renting it long-term, for a single upfront lump-sum payment.
But the way the Copyright Act phrases the first sale doctrine means that only someone who owns the file can redistribute it. Since the fine print says you’re not the owner, you don’t have any first sale rights.
This is the current state of the law, as of a few landmark cases in federal appeals courts. We hope to change that.