Reconstructing copyright exhaustion in the online world

According to the principle of copyright exhaustion, once a copy of a work is placed on the market, the right holder’s control over further distribution of that copy is exhausted. Unlike the distribution of hard copies of copyright works, however, the electronic dissemination of content is not subject to the exhaustion principle. This means that second-hand markets of digital goods cannot exist. Traditionally, exhaustion is premised on four assumptions that cannot be safely assumed in the online context: it applies to tangible copies only; it covers goods and not services; the goods should be sold but not licensed; and the property entitlement should be alienated upon transfer. After long jurisprudential silence, courts at worldwide level have revisited these normative impediments to affirm that exhaustion can apply online in specific instances. The article discusses the doctrinal norms that underpin exhaustion and determines the conditions under which online copyright exhaustion can apply.

Being and goodness

The old scholastic principle of the "convertibility" of being and goodness strikes nearly all moderns as either barely comprehensible or plain false. "Convertible" is a term of art meaning "interchangeable" in respect of predication, where the predicates can be exchanged salva veritate albeit not salva sensu: their referents are, as the maxim goes, really the same albeit conceptually different. The principle seems, at first blush, absurd. Did the scholastics literally mean that every being is good? Is that supposed to include a cancer, a malaria parasite, an earthquake that kills millions? If every being is good, then no being is bad—but how can that be? To the contemporary philosophical mind, such bafflement is understandable. It derives from the systematic dismantling of the great scholastic edifice that took place over half a millennium. With the loss of the basic concepts out of which that edifice was built, the space created by those concepts faded out of existence as well. The convertibility principle, like virtually all the other scholastic principles (not all, since some do survive and thrive in analytic philosophy), could not persist in a post-scholastic space wholly alien to it.