数字作品转售与发行权用尽原则——对“Vernor案”和“Tom Kabinet案”的思考
Resale of Digital Works and the Doctrine of Exhaustion of Distribution Rights—Reflections on “the Vernor” and “Tom Kabinet” Cases

发行权用尽原则由美国最高法院在1908年的Bobbs-Merrill诉Straus案中首次确立，美国国会随后将该原则编入1976年《版权法》。在计算机尚未普及的年代，学术界的普遍观点认为发行权用尽原则适用于有形载体。但随着数字技术的发展以及网络交易市场的经济体量逐年上升，原有发行权用尽原则的“地基”已经悄然发生了改变。网络发行凭借着成本低、传播性广、互动性强等特点，逐渐抢占实体发行的市场，但各种问题也接踵而至。比如，合法获得的数字书籍、计算机软件等数字复制品的用户可否不经著作权人的同意而根据发行权用尽原则进行转让？
The doctrine of exhaustion of distribution rights was first established by the U.S. Supreme Court in Bobbs-Merrill v. Straus in 1908, and was subsequently codified by the U.S. Congress in the Copyright Act of 1976. In the era when computers were not yet popular, the prevailing view in the academic community was that the doctrine of exhaustion of distribution rights applied to tangible carriers. However, with the development of digital technology and the increasing economic volume of the network trading market, the “foundation” of the original doctrine of exhaustion of distribution rights has quietly changed. With the characteristics of low cost, extensive dissemination, and strong interactivity, online distribution has gradually gained market share over physical distribution, but various problems have also emerged in succession. For example, can users who have legally obtained digital copies such as digital books and computer software transfer them without the consent of the copyright holder, based on the doctrine of exhaustion of distribution rights?