디지털 권리소진원칙에 관한 연구 - 톰 카비넷(Tom Kabinet) 사건을 중심으로 -

Digital First sale doctrine

In 2014, the District Court of Amsterdam decided that reselling e-books was permissible under the exhaustion theory by applying the Usedsoft decision (C-128/11) of the CJEU. The next year, the Dutch court of appeals (Hof Amsterdam) ordered Tom Kabinet to stop facilitating the resale of e-books, because it traded both legal and illegal copies. The court said If it proved a way to prevent the illegal trades of e-books on it's site, the court would consider about re-opening the site. In the appeal court ruling, it gave the preliminary decision in the case, because it was not convinced whether the CJEU's UsedSoft rationale applies to e-books. Nevertheless it showed a strong tendency towards treating the e-books in a similar way to paper books (or software for that matter). The court thought that e-books has a similar price to paper books, moreover buying e-books, the owner has a right to use the copy for unlimited time. Further, Tom kabinet, a site to trade used e-books, to prevent illegal copying, it suggested several conditions to use this site. To sell used e-books, the owner needs to declare that he obtained the copy legally, and he will delete his own copy. Although Tom Kabinet does not have any means of ensuring that these statements are correct, it does add a code to the uploaded copy not to upload twice. Although the Dutch court shut down the site temporally because it could not ensure that only legal e-books were traded on Tom Kabinet, it did not deny the possibility of exhaustion theory in e-books reselling. From the economic perspective, if the right holder has appropriate remuneration in the first sale, there should be same treatment between tangible and intangible goods in applying the exhaustion theory. Comparing the German cases and the US cases, the Dutch case gave us to the possibilities to extend the exhaustion theory to the e-contents. Along with the development of digital technologies, the exhaustion theory will be expect to expand it's area beyond tangible world.