An American Tale: The Unclear Territorial Application of the First Sale Rule in United States Copyright Law (And its Impact on International Trade)
Recital 44 asserts that the question of exhaustion does not arise in the context of online delivery of (digital) works, which is generally understood to mean that the owner of copyright maintains full control over the digital dissemination of digital works. Above and beyond impacting upon the question of whether exhaustion may occur online, a broader issue is at stake here. Historically, the exhaustion rule developed out of the notion of an implied licence. The latter was an attempt to explain the loss of control rights of IP owners following the first act of exploitation.
ATRIP Intellectual Property
Intellectual Property at the Crossroads of Trade
An American Tale: The Unclear Territorial Application of the First Sale Rule in United States Copyright Law (And its Impact on International Trade),
Available at: http://scholarship.law.tamu.edu/facscholar/702