Seventeen years ago, the U.S. Copyright Office — Congress’s official advisor on copyright issues — published an opinion for Congress on whether there should be a first sale right for digital content: a right for consumers to alienate (sell, lend, rent, or give away) digital files, like the one that exists for physical items like books, CDs, and DVDs. In the so-called Section 104 Report, the Copyright Office considered the idea that digital first sale could be supported with a “forward-and-delete” mechanism that ensures that if you send a digital file to someone, the file no longer exists on your device.

The Copyright Office said:

“… unless a ‘forward-and-delete’ technology is employed, transfer of a copy by transmission requires an additional affirmative act by the sender. In applying a digital first sale doctrine as a defense to infringement it would be difficult to prove or disprove whether that act had…