When it became en vogue for the popular press to write about copyright law's digital first sale doctrine in the aftermath of the Kirtsaeng and Redigi cases, the general public started to get a glimpse of the legal problems inherent to the transfer of copyrighted digital material. It might even be possible to claim , that this was the first time many readers had heard about the differences in the legal treatment of digital and non-digital media goods.
Many authors (including myself) have written on the digital first sale doctrine and the legal context has been analyzed extensively - both in the US and abroad and also in a comparative manner. When performing these analyses, experts often rely on assumptions about the general public's awareness of the legal issues involved in the transfer of digital media. When making arguments, some scholars make very strong claims that the average user is aware that he/she is not actually buying a digital good, but rather just purchasing a license for it. Other experts, some with an equally strong opinion, claim that the general audience is not capable of making such a specific differentiation and the public truly believes that it actually buys the MP3 file when clicking the "buy now" button on Amazon.com.
Having such diverse theories on the general public's knowledge of this legal issue makes this problem a perfect case for an empirical study. Yet, such a study has not been conducted on a large scale in recent times. Using this as an opportunity, the project will try to close the existing prevailing and to create a better foundation for the above mentioned claims by getting empirical information on the general public's knowledge and interest in the issue.
An initial test-study (not scientifically rigorous, just a small number of responses) has shown that there is, despite the many claims, au contraire, no clear cut answer. Therefore, an extended and scientifically rigorous, large scale, empirical analysis of the people's expectation and knowledge in the area of digital media purchases and repurchases is not only a purely academic endeavor, it is rather a necessity to advance the research in this field. Afterwards, assumptions and claims no longer have to suffice without sources, but they can be based on empirical data. Last, but not least, as the review of the digital first sale doctrine is on the agenda of the USPTO (e.g. as discussed for example at the roundtable in Cambridge, MA and many other cities) and the US Copyright office, the study is also of high relevance to the current policy discussions.
To gather the necessary data points, it is planned to launch an online-survey in both Europe (where there is a digital first sale doctrine for software) and the US (where such a doctrine does not currently exist). It will be attempted to acquire enough responses to be able to draw conclusions in both regions individually. However, by relying on the same survey in both jurisdictions, it will also be possible to compare the results from regions with different legal solutions.
