Are You Really the Owner of Your NFTs? There's a Legal Grey Area
Joshua Durham on NFTs and Copyright Law: Implications for Digital Ownership
In this Premium interview, Laura talks to Joshua Durham, law clerk at K&L Gates LLP, to discuss his paper titled "Creating True Digital Ownership with the "First Sale" Doctrine."
First Sale Doctrine
The first sale doctrine states that once an owner sells a copy of their copyrighted work, the purchaser has true ownership of that copy, and the owner cannot restrict them from reselling, lending, or doing anything with it.
However, this principle does not apply to digital goods because of the risk of infringing the right of reproduction for copyright owners. Josh argues that NFTs allow for digital first sale for the first time because they do not involve copying and pasting. Instead, NFTs are stored cryptographically on the blockchain.
Implications for NFT Owners
Josh also mentions that NFT owners may not fully understand the legal implications of their ownership, as many NFT marketplaces do not have enforceable license agreements in place. He proposes that the copyright office issue guidance on this issue or that a court case be initiated to apply digital first sale law to NFTs. In the meantime, Josh suggests that NFT platforms should address the issue by including licensing agreements that grant owners the right to sell, lease, or gift their NFTs.
Josh also notes that, under current law, NFT creators have the right to claw back NFTs after secondary sales, which is a problem that needs to be addressed. He proposes that special legislation should be created to allow for royalties on resales of NFTs, as is allowed in parts of Europe.
To get access to the full interview, subscribe now!
If you are already a premium subscriber, you’ll find the link below ⬇️
Keep reading with a 7-day free trial
Subscribe to Unchained to keep reading this post and get 7 days of free access to the full post archives.