Some U.S.
case law allows manufacturers to restrict the first-sale doctrine by a
clickwrap contract or other agreement. The case law is conflicting, however, and the legality of allowing first-sale doctrine rights to be abrogated by contract has been questioned as described below. One apparent reason for the confusion is that the original 1909 codification has been divided into two parts, and most references to the codification cite only
17 U.S.C. § 109(a), which provides that the owner of a copy, lawfully made under the Copyright Act, is entitled to transfer possession or ownership without the consent of the copyright owner. But the other portion of the original codification,
17 U.S.C. § 202, clarifies the fundamental distinction between copies and copyrights (and between owners of copies and owners of copyrights). In other words, the agreement that purports to restrict the copy owner's statutory right cannot be viewed as an exercise of copyright licensing, since the copyright itself (the distribution right, under
17 U.S.C. § 106(3)) does not extend to non-infringing copies not owned by the copyright owner. Rather, the agreement is a pure restraint on trade in the tangible copies, and may be judged under antitrust laws, just like any other restraint
[citation needed]. Those who breach an agreement to not re-distribute a lawfully made copy they own may, perhaps, be liable for breach of contract, but not for copyright infringement
[
