Copyright Exhaustion Law And Policy

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Copyright Exhaustion

In this timely book, copyright scholar Péter Mezei offers a comprehen-

sive examination of copyright exhaustion, including its historical devel-
opment, theoretical framework, practical application, and policy con-
siderations. He compares the substantive norms and case law for the
first-sale doctrine in the US and in the European Union, covering both
analogue and digital applications in detail, and, in doing so, questions
the common rejection of exhaustion in the resale of digital subject mat-
ter, such as computer programs, sound recordings, audiovisual works,
and e-books. Instead, he proposes a digital first-sale doctrine that would
offer legal consistency to copyright law and a technologically feasible
framework for content producers and consumers. This book should be
read by anyone interested in how copyright law continues to evolve in
conjunction with the digital world.

p é t e r m e z e i is an Associate Professor at the University of Szeged, an

adjunct professor at the University of Turku, and a visiting lecturer at
the University of Toledo and at the University of Jean Moulin Lyon III.
He is a member of the Hungarian Copyright Expert Board, and he spe-
cializes in comparative digital copyright law. Mezei has contributed sev-
eral times to international research conducted by the European Com-
mission. He wrote national reports to the 2010 and 2014 Comparative
Law Congresses.
 Cambridge Intellectual Property and Information Law

As its economic potential has rapidly expanded, intellectual property has

become a subject of front-rank legal importance. Cambridge Intellectual Property
and Information Law is a series of monograph studies of major current issues in
intellectual property. Each volume contains a mix of international, European,
comparative and national law, making this a highly significant series for
practitioners, judges and academic researchers in many countries.

Series editors
Lionel Bently
Herchel Smith Professor of Intellectual Property Law, University of
Cambridge
Graeme Dinwoodie
Professor of Intellectual Property and Information Technology Law,
University of Oxford

Advisory editors
William R. Cornish, Emeritus Herchel Smith Professor of Intellectual
Property Law, University of Cambridge
François Dessemontet, Professor of Law, University of Lausanne
Jane C. Ginsburg, Morton L. Janklow Professor of Literary and Artistic
Property Law, Columbia Law School
Paul Goldstein, Professor of Law, Stanford University
The Rt Hon. Sir Robin Jacob, Hugh Laddie Professor of Intellectual
Property, University College, London
Ansgar Ohly, Professor of Intellectual Property Law, Ludwig Maximilian
University of Munich, Germany

A list of books in the series can be found at the end of this volume.
Copyright Exhaustion
Law and Policy in the United States and
the European Union

Péter Mezei
Szeged Law School
University Printing House, Cambridge CB2 8BS, United Kingdom
One Liberty Plaza, 20th Floor, New York, NY 10006, USA
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
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Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781107193680
DOI: 10.1017/9781108135290

C Péter Mezei 2018

This publication is in copyright. Subject to statutory exception

and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2018
Printed in the United States of America by Sheridan Books, Inc.
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication data
Names: Mezei, Péter, author.
Title: Copyright exhaustion : law and policy in the United States and
the European Union / Péter Mezei.
Description: New York : Cambridge University Press, 2018. | Series:
Cambridge intellectual property and information law ; 43 | Includes
bibliographical references and index.
Identifiers: LCCN 2017057897 | ISBN 9781107193680 (hardback)
Subjects: LCSH: Fair use (Copyright) – United States. | Fair use
(Copyright) – European Union countries.
Classification: LCC K1420.5.M46 2018 | DDC 346.2404/82 – dc23
LC record available at https://lccn.loc.gov/2017057897
ISBN 978-1-107-19368-0 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
To the three Graces
 Contents

Acknowledgments page ix

Introduction 1
1 The Theory of Copyright Exhaustion 6
1.1 Balance in Copyright Law 6
1.2 The Conceptual Elements of Exhaustion 8
1.3 Policy Considerations of Exhaustion 11
1.4 The Doctrine of Exhaustion under International Copyright Law 14
1.4.1 TRIPS Agreement (1994) 14
1.4.2 The WIPO Internet Treaties (1996) 17
1.5 National, Regional, and International Exhaustion 20

2 The Doctrine of Exhaustion in the Copyright Law of the

European Union 24
2.1 The Origins of the Doctrine of Exhaustion in the Founding
Member States 26
2.2 The First Phase of ECJ Case Law in the 1970s and 1980s 31
2.3 The Green Paper 1988 38
2.4 Vertical Harmonization (1991–1996) and Special Rules on
Exhaustion 40
2.5 Horizontal Harmonization (2001) and General Rules on
Exhaustion 44
2.6 The Limitations of the Doctrine of Exhaustion 49
2.6.1 Limited Parallel Importation: The Doctrine of Regional
Exhaustion 50
2.6.2 The Droit de Suite 54

3 The First-Sale Doctrine in the Copyright Law of the US 59

3.1 The Origins of the First-Sale Doctrine 60
3.2 The Development of the First-Sale Doctrine until 1976 63
3.3 The Challenges of the First-Sale Doctrine after 1976 and the
Amendments of the USCA 65
3.3.1 Record Rental Amendment Act 67
3.3.2 Computer Software Rental Amendment Act 69
3.3.3 Video Rentals and the Lack of Amendments 69

vii
viii Contents

3.4 The Limitations of the First-Sale Doctrine 71

3.4.1 Prohibition of Parallel Importation versus First-Sale
Doctrine 71
3.4.2 Sporadic Droit de Suite 86

4 Digital Exhaustion in the European Union and the US 92

4.1 Case Law on Digital Exhaustion 93
4.1.1 Resale of Computer Programs 93
4.1.2 The Digital Resale of Sound Recordings: The ReDigi Case 105
4.1.3 Resale of Audiobooks and E-Books 111
4.1.4 Resale of Audiovisual Works 116
4.2 A Critical Analysis of the Case Law on Digital Exhaustion 118
4.2.1 License versus Sale 119
4.2.2 Distribution versus Making Available to the Public 123
4.2.3 The New Copy Theory versus Migration of Files and
Forward-and-Delete Technologies 127
4.2.4 Different Subject Matters, Lex Specialis, and the Theory
of Functional Equivalence 133
4.3 En Route to Digital Exhaustion? 139
4.3.1 Isn’t It Only Hype? 139
4.3.2 Traditional Positivism: A Dead End? 143
4.3.3 Constructive Realism: The Economic, Social, and
Technological Effects of the Digital Exhaustion Doctrine 148

Conclusion 166

Bibliography 170
Index 206
 Acknowledgments

After spending seven years doing research on P2P file sharing, and com-
pleting my book on the topic, I was ready to turn to new topics of copy-
right law. During the fall of 2013, I met, coincidentally, one of my then
students, Juan Pinoargote, at the local market in Turku, Finland. He was
eager to know my opinion on the then fresh ReDigi ruling. I was familiar
with the UsedSoft case, but ReDigi was new to me. Consequently, Juan
deserves the first handshake, as he drew my attention to the idea of dig-
ital exhaustion.
Since 2013, I have worked systematically on the book, regularly giving
presentations on its component parts at several conferences. I attended
SCIPTED in 2014, for which I am grateful to Professor Winner and
Clemens Appl. I was invited to present my research at CICL in 2014.
Peter Yu, John Cross, Katja Weckström (Lindroos), Tuomas Mylly, and
Lars Smith deserve special acknowledgment for this possibility. I also
attended CopyCamp 2014, where the organizers – especially Paulina
Ołtusek – gave me the opportunity to introduce my concept of digital
exhaustion. I was invited by Edouard Treppoz to attend the Les Con-
ferences en Anglais du LLM symposium in Lyon, France. I appreciate
the kind invitations of Daniel Steinbock to Toledo, Ohio, USA; Tuomas
and Ulla-Maija Mylly to Turku, Finland; Katja Weckström to Joensuu,
Finland; and Horst-Peter Götting, Anne Lauber-Rönsberg, and Jana
Lutter to Dresden, Germany, where I delivered university lectures on
exhaustion. During, after, and independently of these programs, I had
the privilege of discussing the details of my research with Shubha Ghosh,
Mira Sundara T. Rajan, Pierre-Emmanuel Moyse, Enrico Bonadio,
Corinna Coors, Pawel Szulewski, Gábor Faludi, Anikó Grad-Gyenge,
Dóra Hajdú, and István Harkai.
Finally, I am very grateful to a handful of people who polished the
book’s language. Andy Cheesman taught me how books on law should
be written to make them readable by natural scientists, too. Ally Farnhill
showed me how easy it is to work and laugh at the same time. Jonathan
Clarke must be endorsed for his professionalism and perfectionism in
copyediting the book. Finally, I appreciate the help of Louis Fendrich in
translating complicated German sentences into English.
ix
 Introduction

The doctrine of exhaustion, more commonly referred to within the US

as the “first-sale” doctrine,1 is one of the most fundamental principles
of copyright law. Under this doctrine, the copyright holder must accept
that copies, or the originals of copyrighted works, and other subject mat-
ter lawfully placed into circulation by or with the authorization of the
rights holder, through sale or in any other form of transfer of owner-
ship, are subsequently distributed by the lawful owner of those copies or
originals, if the rights holder received proper remuneration for the initial
distribution.2
Anglo-Saxon academia and case law have often stressed that this doc-
trine stems from the common law’s refusal to permit restraints on the
alienation of chattels,3 but the earliest clear and direct reference to the
Erschöpfungslehre in copyright law is found in Joseph Kohler’s monograph
published in 1880.4
Regardless of the precise origins of the doctrine, both the US Supreme
Court and the Supreme Court of the German Reich confirmed the valid-
ity of this concept, at similar times and in cases with comparable fact

1 Exhaustion and first sale are referred to interchangeably: “[w]hereas exhaustion,

although the word is all too frequently substituted for the phrase ‘first sale’ ( . . . ).” See
Frankel (2016) 216. See further Chiappetta (2016) 125. Elsewhere Susy Frankel and
Daniel Gervais argue differently: “[t]he first sale principle is distinct from the exhaus-
tion principle.” See Frankel and Gervais (2016) 88.
2 Compare to Goldstein and Hugenholtz (2010) 305.
3 Lord Coke explained common law’s refusal to permit restraints on the alienation of
chattels in 1628 as follows: “[If] a man be possessed of . . . a horse, or of any other chat-
tell . . . and give or sell his whole interest . . . therein upon condition that the Donee or
Vendee shall not alien[ate] the same, the [condition] is voi[d], because his whole inter-
est . . . is out of him, so as he hath No. possibilit[y] of a Reverter, and it is against Trade
and Traffi[c], and bargaining and contracting betwee[n] man and man: and it is within
the reason of our Author that it should ouster him of all power given to him.” Quoted
by Supap Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351 (2013) 1363. See fur-
ther Perzanowski and Schultz (2011) 929, note 224; Liu (2001) 1291–1292; Katz et al.
(2016) 8–24.
4 Kohler (1880) 139. See infra II.1.1.

1
2 Introduction

patterns.5 The Königs Kursbuch6 and the Bobbs-Merrill7 cases both con-
cerned the resale of books, which were originally put into circulation
by their respective publishers at a fixed price, yet subsequently, in some
instances, were resold at a lower price. Both rulings were based on the
premise that if the rights holder had received fair remuneration for the
first sale then they had no right to control further resales of the given
copies. This argument is known as Belohnungstheorie in the German legal
system and as the “reward theory” in Anglo-Saxon jurisprudence. These
two revolutionary decisions serve as apt examples for the underlying the-
ory developed by Konrad Zweigert and Hein Kötz. They submitted that
“one can almost speak of a basic rule of comparative law: different legal
systems give the same or very similar solutions, even as to detail, to the
same problems of life.”8 Indeed, similar questions like what is a first sale;
who are lawful acquirers; the goods versus services and the license ver-
sus sale dichotomy; the transformation of lawfully acquired copies; or
the applicability of the doctrine in the digital realm had to be answered
in both jurisdictions.
Following the US Supreme Court’s decision in the 1908 Bobbs-Merrill
case, the US Congress codified the first-sale doctrine in the newly
enacted Copyright Act 1909. Since then, the first-sale doctrine has
actively contributed to the development of US copyright law. By way of
comparison, although the legal system of the EU9 is much younger than
that of the US, the doctrine of exhaustion has gained similar prominence
there. Intellectual property was not originally listed among the compe-
tences of the EEC in the Treaty of Rome 1957. However, the regional
protection of copyright law has subsequently been developed through
ECJ case law. Indeed, several rulings, particularly on the free movement
of goods and services, have played a pivotal role in the evolution of copy-
right law within the EU.10
The determination of the exact content of this doctrine may vary,
in light of countries’ divergent socio-economic backgrounds and their

5 The foundations of the doctrine were first set by court decisions in the United States,
commencing from the mid-1880s. See Clemens v. Estes, 22 Fed. Rep. 899 (1885). See
infra III.1.
6 RG 10.06.1906 (Rep. I. 5/06). See infra II.1.1.
7 Bobbs-Merrill Company v. Isidor Straus and Nathan Straus, 210 U.S. 339 (1908). See
infra III.1.
8 Zweigert and Kötz (1996) 39.
9 Except where expressed reference is made to the European Economic Community
(EEC), the book uses the abbreviation “EU” to cover both the EEC and the European
Union.
10 The earliest preliminary ruling of the ECJ in this matter was Deutsche Gram-
mophon Gesellschaft mbH v. Metro-SB-Großmärkte GmbH & Co. KG, Case 78/70,
ECLI:EU:C:1971:59. See infra II.1.2.
 Introduction 3

differing policy considerations. Broadly speaking the treatment of the

doctrine is analogous across jurisdictions. The fundamental objective is
to establish a balance, between the exclusive rights of the rights holder
on the one hand, and on the other hand the ownership interests of those
persons who acquire physical control over a copy of a protected subject
matter. Indeed, as Sam Ricketson and Jane Ginsburg noted:
[t]o extend the author’s rights so as to encompass the ways in which these objects
[the objects in which the work is embodied or reproduced] are distributed and
subsequently dealt with brings these intangible rights into direct conflict with the
rights of property that the owner of a copy enjoys once he has purchased it.11

While it is true that establishing a balance between proprietary and copy-

right interests is central, the doctrine of exhaustion also represents a
staunch economic battlefield between international stakeholders. Coun-
tries and regional organizations, as well as intellectual property owners
and end users/consumers, have considerably different commercial inter-
ests. As Shubha Ghosh noted,
[i]ntellectual property owners tend to be large companies with political and eco-
nomic clout while users are dispersed and generally have weaker economic and
political power. Consequently, the political pressure in both the legislature and
courts is to place limits on the exhaustion principle.12

Allowing third parties to trade goods freely between countries might limit
the extent to which rights holders can exercise their economic rights.
Such practices might also have direct or indirect consequences on the
budget of the affected countries. In order to mitigate this impact, sev-
eral governments have limited the doctrine of exhaustion to function
solely within their borders and prohibited the importation of copies of
protected subject matter, without the express authorization of the rights
holder.
However, this logic is not followed by all nations, with a small number
choosing to accept the doctrine of international exhaustion. These coun-
tries generally consider free trade paramount (e.g., the Netherlands) or
they have limited access to copies of works due to their geographical
location (e.g., New Zealand). A particularly noteworthy example is the
US Supreme Court’s recent decision in Kirtsaeng, which departs from
the US’s traditional understanding of the first-sale doctrine and opened
the doors to international exhaustion.
For an intermediary interpretation of the doctrine, one must look no
further than the EU. This economic organization was originally set up

11 Ricketson and Ginsburg (2006) 660. See further Stern (1989) 119.
12 Ghosh (2013) 3.
4 Introduction

to allow six (and later, many more) countries to trade with each other
in a single, uniform market. Thus, barriers to cross-border exchange of
goods and services might inevitably run against the basic concept of the
EU.
In light of the above contextual overview, attention must now turn to
briefly outlining the aims and ambitions of this book. The aim is to pro-
vide a concise and comparative discussion of the development, content,
policy considerations, regulation, and case law of the doctrine of exhaus-
tion under the law of the US, the EU, and, where necessary, several
specific Member States of the EU. Chapter 1 summarizes the theoret-
ical framework, policy considerations, and international background of
the principle in copyright law. Chapters 2 and 3 introduce the historical
development of exhaustion both within the EU and the US. These chap-
ters will also consider built-in limitations of the system, namely, the ban
on parallel importation, as well as the resale right (droit de suite).
Chapter 4 considers the present issues and future challenges facing
the doctrine of exhaustion. The most important copyright challenges of
the twenty-first century are generally bound to the application of the
existing legal principles to the digital environment. The Supreme Court
of Canada properly noted in a recent decision that,
[t]he principle of technological neutrality requires that, absent evidence of Par-
liamentary intent to the contrary, we interpret the Copyright Act in a way that
avoids imposing an additional layer of protections and fees based solely on the
method of delivery of the work to the end user. To do otherwise would effec-
tively impose a gratuitous cost for the use of more efficient, Internet-based
technologies.13

The main challenge in a digital exhaustion doctrine is whether digital

data (files) “sold” via online platforms can be lawfully resold by digital
second hand retailers and end users. The question is not only timely,
but also extremely challenging to answer. There are significant physical
differences between analog and digital copies. At the same time, social
needs have changed drastically in the last decades. This makes the recon-
sideration of the applicability of the exhaustion doctrine for digital goods
necessary. Moreover, the latest tendencies in the field might require the
reconsideration of contract law, too. Digital files are most often acquired
under licenses, rather than through sales. Nevertheless, it is timely to
think it over, whether the contracts for the transfer of digital files should
be effectively treated as licenses rather than sales.14

13 Entertainment Software Association v. Society of Composers, Authors and Music Publishers of

Canada, 2012 SCC 34, [2012] 2 R.C.S. 241., para. [9].
14 Hauck et al. (2016) 147.
 Introduction 5

Commentators often focus on the two most famous cases, UsedSoft15

and ReDigi;16 however, this book will move beyond this simplistic anal-
ysis and demonstrate how the judicial practice in both the EU and the
US is far more complex than initially assumed. It will be also addressed,
how rights holders try to circumvent the constructive (some might say,
liberal) interpretation of the ECJ in UsedSoft. Namely, whether the use
of more restrictive license contracts, the spread of service-type uses,
and the virtualization of services offered by rights holders can make any
discourse on a digital exhaustion doctrine futile.

15 UsedSoft GmbH v. Oracle International Corp., Case C-128/11, ECLI:EU:C:2012:407.

16 Capitol Records, LLC, v. ReDigi Inc., 934 F.Supp.2d 640 (2013).
1 The Theory of Copyright Exhaustion

1.1 Balance in Copyright Law

Copyright law is closely related to the values and norms of natural law,
yet the exclusive rights of the authors, and their limitations and excep-
tions, have always been set by the artificial rules recognized and granted
by the legislature. The goal of the first Copyright Act, the English Statute
of Anne adopted in 1709, was to place the protective emphasis on the
authors, by abolishing the printing monopoly and the censorship prac-
tices of the Stationer’s Company.1
Since 1709, copyright law has gradually been extended to include new
subject matter and new beneficiaries. This widening reflects a change in
societal needs and is, undoubtedly, a response to increasingly innovative
technology. Copyright law is also designed to protect cultural interests
and to promote a steady supply of cultural products in the public inter-
est. In order to achieve this delicate balance between rights holders and
society, and to prevent a return to absolute monopolies, exclusive rights
are subject to limitations. The extent and form of these limitations have
varied over time and between jurisdictions. The difficulty is in decid-
ing the boundaries of copyright protection, in a manner that maintains
the economic and moral incentives to authors, while at the same time
ensuring society is not deprived.
This pursuit of balance is well illustrated by the intellectual property
clause (IP clause) included in the US Constitution, which states that
“Congress shall have Power To . . . promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries.”2 Commen-
tators have confirmed that the main purpose of the US federal copyright
law is not only to reward authors but to encourage cultural advancements

1 Matthews (1890) 589–590. The Stationers’ Company did not actually have a full
monopoly, as separate printing patents were issued to individuals to publish specific
works. See Atkinson and Fitzgerald (2014) 21; Gadd (2016) 88; Yu (2016) 67.
2 US Constitution, Art. I, section 8, clause 8.

6
 Balance in Copyright Law 7

by incentivizing authors to create.3 Judicial practice of the IP clause pro-

vides stark evidence that the boundary line for where this balancing act
takes place is constantly changing.4
This balance can be guaranteed by limitations and exceptions to eco-
nomic rights,5 including but not limited to the term of protection,6 the
geographical limits,7 statutory and mandatory licenses, collective rights
management, free uses (including fair use and fair dealing), and the
idea/expression dichotomy. Alternatively, a technology-neutral applica-
tion of the copyright norms can help in achieving this balance.8
Another doctrine that attempts to balance competing interests is
exhaustion. It sets limitations for the author’s exclusive right of distri-
bution, along the ownership interests of lawful acquirers of copies of
protected subject matter.9 According to Friedrich-Karl Beier, “the prin-
ciple of exhaustion is nothing more than a figurative expression for the
simple legal idea that once genuine goods have been marketed, subse-
quent distribution should not be impeded by [IPR] actions.”10
This doctrine, which came into existence in the analog world at the
turn of the twentieth century, faces challenges with the advent of dig-
ital technology and more specifically the exponential development of
the Internet. The increasing prevalence of online stores that resell used
music, e-books, or software poses serious questions, such as whether the
doctrine of exhaustion can be applied to digital content. The need to
establish balance in the digital domain requires clarification on the dif-
ferences between license and sale, the transformation of economic rights

3 Donohue (1986) 192–193. The US Supreme Court has noted in Mazer v. Stein that
“the economic philosophy behind the clause empowering Congress to grant patents and
copyrights is the conviction that encouragement of individual effort by personal gain is
the best way to advance public welfare through the talents of authors and inventors in
‘Science and Useful Arts.’” See Mazer, et al. v. Stein, et al., 347 US 201 (1954), 219.
4 Regarding the development of the IP clause, see Joyce and Patterson (2003) 909–
952; Oliar (2006) 1771–1845; Patterson et al. (2009) 241–242; Breagelmann (2009)
104–105; Hess (2013) 1970–1971, 1982–1984; O’Connor (2015) 733–830; Bracha
(2016) 342–345.
5 See Geiger (2004) 818–819 for the differences between limitations and exceptions.
6 Both in the US and the EU, the copyright term has been greatly expanded in recent
decades. See the Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112
Stat. 2827 and the Copyright Term Directive. The EU and the US also include a longer
term of protection in the free trade agreements concluded with developing nations. See
Woods (2009) 362.
7 Territorial copyright laws tend to limit the proper functioning of cross-border services.
The overruling of the concept of territoriality is thus one of the most interesting topics
of copyright law in the European Union. See SEC (2012) 680, 4.
8 On the importance of a technology-neutral copyright system, see in general Hofmann
(2016) 482–512.
9 De la Durantaye and Kuschel (2016) 209. 10 Quoted by Schovsbo (2010) 171.
8 Theory of Copyright Exhaustion

(communication to the public versus distribution), or even a redefined

concept of property.11

1.2 The Conceptual Elements of Exhaustion

Exhaustion was harmonized on a general level by the InfoSoc Directive
of the European Union (EU) and is formulated in the following terms:
[t]he distribution right shall not be exhausted within the Community in respect
of the original or copies of the work, except where the first sale or other transfer
of ownership in the Community of that object is made by the rightholder or with
his consent.12

Similarly, the US Copyright Act of 1976 (USCA) defines the first-sale

doctrine as follows:
[n]otwithstanding the provisions of section 106(3), the owner of a particular
copy or phonorecord lawfully made under this title, or any person authorized by
such owner, is entitled, without the authority of the copyright owner, to sell or
otherwise dispose of the possession of that copy or phonorecord.13

In light of these norms, the following four elements might be recognized

as the conceptual basis for the doctrine of exhaustion:
1 the rights holder or another authorized person
2 lawfully distributes and thus transfers the ownership over
3 the original or a copy of a protected subject matter and
4 the lawful owner may resell the copy without the rights holder’s
permission.14
The first conceptual element is commonly known as the doctrine of
consent.15 It clearly indicates that the first distribution needs to be ini-
tiated by, or with the consent of, the original or any successive rights
holder (e.g., wholesalers, retailers, distributors, agents).16 It is part of
this conceptual element that rights holders must have the opportunity to
demand appropriate remuneration for the transfer of ownership over the
copy of the protected subject matter.17
The second doctrinal element sets forth that copies shall be law-
fully sold. In other words, the distribution should take place in accor-
dance with the provisions of the copyright law. Therefore, exhaustion

11 A great example is the Canadian court decision that declared the .ca domain as subject
to personal property. See Carrington (2014) 81.
12 InfoSoc Directive, Art. 4(2). 13 USCA §109(a).
14 Nimmer (2013) §8.12[B][1][a]. 15 Tritton (2002) 470–471.
16 Dreier and Schulze (2013) §17 Rn. 31.
17 Schack (2005) 181; Dreier and Schulze (2013) §17 Rn. 25.
 Conceptual Elements of Exhaustion 9

should not apply to counterfeit/piratical products or to copies distributed

illegally, e.g., copies acquired through theft.18 The same applies to copies
produced or distributed in violation of a license, e.g., contrary to the pro-
visions on quantity or time limitations, as well as to copies manufactured
by the publisher but not distributed with transfer of title (i.e., copies
that remain in stock).19 Furthermore, exhaustion applies only to copies
made available to the public with the transfer of ownership,20 or, as Ray-
mond Nimmer states, via the “first authorized disposition by which title
passes.”21 Thus, rental lending or leasing, along with any other service-
like forms of dissemination22 (public performance, communication to
the public, broadcasting, and simultaneous retransmission),23 won’t
effectuate exhaustion. Similarly, offering a copy for trial purchase,24
transferring a copy to another person with reservation of title of
ownership,25 or simply placing counterfeit products of copyrighted fur-
niture into the window of a shop26 would not fall within the scope of
distribution. In contrast, a gift27 or trade is deemed to be a distribution,
and accordingly, exhaustion also applies to the copies affected.
Moreover, it is also relevant whether the author may contractually
limit the conditions of distribution. It is generally accepted that the
rights holder should have the right to contractually limit the condi-
tions (e.g., the retail price, the time frame, the geographic scope, or the
channels) of the initial distribution.28 The rights holder, however, is not
entitled to contractually exclude future distributions. The only exception
18 United States v. Belmont et al., 715 F.2d 459 (1983), cert. denied, 465 US 1022 (1984);
Dowling v. United States, 472 US 207 (1985); Microsoft Corp. v. Software Wholesale Club,
Inc., 129 F.Supp.2d 995 (2000).
19 Loewenheim (2010) §20 Rn. 38. 20 Ibid. Rn. 36; Karmel (2012) 361–368.
21 Nimmer (2013) §8.12[B][1][a].
22 See expressly in Recital (2) of the InfoSoc Directive.
23 Compare to the Coditel I and Coditel II rulings of the ECJ. Compare to notes and the
accompanying text.
24 BGH 7.6.2001 (I ZR 21/99) 1036–1038; OLG Frankfurt am Main 22.12.2016 (11 U
108/13) 512–517.
25 Loewenheim (2010) §20 Rn. 36; Dreier and Schulze (2013) §17 Rn. 25.
26 Peek & Cloppenburg KG v. Cassina SpA, Case C-456/06, ECLI:EU:C:2008:232, paras.
35–36.
27 Walt Disney Productions v. John Basmajian and Christie, Manson & Woods International,
Inc., 600 F. Supp. 439 (1984); UMG Recordings, Inc. v. Troy Augusto, 558 F.Supp.2d
1055 (2008).
28 Loewenheim (2010) §20 Rn. 39; Walter and von Lewinski (2010) 135, para. 5.4.34, and
999–1000, paras. 11.4.22–11.4.24; Hovenkamp (2011) 497–498; Dreier and Schulze
(2013) §17 Rn. 32, 38–40; Katz (2014) 62. The US Congress accepted the same argu-
ment when passing the USCA: “[t]his does not mean that conditions on future dis-
position of copies or phonorecords, imposed by a contract between their buyer and
seller, would be unenforceable between the parties as a breach of contract, but it does
mean that they could not be enforced by an action for infringement of copyright.” See
H.R. Rep. (1976) 79. Compare to Patry (1994) 846. Dutch and Swiss academia takes
10 Theory of Copyright Exhaustion

to this rule is related to the geographical scope of exhaustion. The EU

implements a policy of regional exhaustion, whereas certain countries
adopt the same exception on a more limited national scale. In both sys-
tems, copies originally put into circulation outside of the borders of the
given country, or of any member of the European Economic Area (EEA),
may also be contractually banned from being imported into the territory
of the given country or the whole EEA.29 In countries where interna-
tional exhaustion applies, contractual stipulations that limit importation
to the territory of the given country are void.
The third element of the doctrine stipulates that the original copy must
always be the subject of resale. A lawful purchaser may “reinterpret” the
copy so long as it does not run against the adaptation right. A German
judgment found the reuse of postcards on packaging of chocolate boxes
to be covered by exhaustion.30 Similar decisions are found in Dutch31
and US32 case law. In contrast, the European Court of Justice (ECJ) has
noted that exhaustion does not apply to transformation-like uses where
the source work is reproduced.33
The fourth conceptual element requires that the initial and any sub-
sequent lawful acquirer can transfer ownership over the copy to any
other person (including gift or barter). Service-type uses are specifically
excluded. This element also guarantees that lawful owners cannot rely
on exhaustion if their ownership interest over the copy is not terminated
by the resale, e.g., if the work is multiplied before being resold.
In sum, the copyright holder must accept that copies, or the originals
of copyrighted works, and other subject matter lawfully placed into circu-
lation by or with the authorization of the rights holder, through sale or in
any other form of transfer of ownership, are subsequently distributed by
the lawful owner of those copies or originals if the rights holder received
proper remuneration for the initial distribution.

the opposite view and refuses such contractual freedom of the rights holder. Compare
to Rigamonti (2009) 16; Guibault and van ’t Klooster (2012) 705; Verkade (2012)
302–303.
29 Schack (2005) 182; Loewenheim (2010) §20 Rn. 39; Dreier and Schulze (2013) §17
Rn. 35–37.
30 KG 26.1.2001 (5 U 4102/99) 125–126. Compare to Loewenheim (2010) §20 Rn. 40;
Dreier and Schulze (2013) §17 Rn. 28.
31 The Poortvliet case is introduced below. Compare to note 43 and the accompanying
text.
32 Scarves by Vera Inc. v. American Handbags Inc., 188 F.Supp. 255 (1960); Elisa Allison,
et al., v. Vintage Sports Plaques, et al., 136 F.3d 1443 (1998). On the latter decision, see
Choderker (1999) 431–443.
33 Art & Allposters International BV v. Stichting Pictoright, Case C-419/13,
ECLI:EU:C:2015:27.
 Policy Considerations of Exhaustion 11

1.3 Policy Considerations of Exhaustion

The doctrine of exhaustion seeks to secure a balance between the diver-
gent interests of society and is based upon three primary policy objec-
tives: the superiority of property rights over copyrights, the reward the-
ory, and the restraint of rights holders over market control.34
Following several centuries of dispute, it is now accepted that property
rights of lawful acquirers take precedence over copyrights, if it comes to
the tangible copies of protected subject matter.35 The US House of Rep-
resentatives stated, after the enactment of the USCA, that “the copyright
owner’s exclusive right of public distribution would have no effect upon
anyone who owns ‘a particular copy or phonorecord lawfully made under
this title’ and who wishes to transfer it to someone else or to destroy it.”36
The superiority of property rights gained further reinforcement with
the reward theory. According to the reward theory, the rights holder
is able to freely set the initial purchase price of copies of their work,
as fair reward for the transfer of ownership, although the rights holder
is not entitled to any further reward related to subsequent acts of
distribution.37 The reward theory has recently been extended by the ECJ
to include the digital domain. In UsedSoft, the court noted that exhaus-
tion might apply “if the first sale of the copy of work concerned enabled
the above stated rightholder to acquire a just reward.”38
Both of the aforementioned policy considerations closely relate to the
third, namely, that the copyright holder does not have and, in the sense
of competition law, should not have the chance to fully control the sec-
ondary market.39 Exhaustion inevitably guarantees that rights holders
cannot control all forms of distribution and thus excludes the emergence
of absolute monopolies. This anticompetition policy argument can be
effectively traced in the EU, where the acceptance of the doctrine of
exhaustion shares a causal relationship with the intention of strengthen-
ing the internal market and protecting the free movement of goods.40

34 See Puig (2013) 162–170 regarding these three policy considerations and their erosion.
35 Paul Edmond Dowling v. United States, 473 US 207 (1985) 216–217; Schricker (2006)
33–43; Loughlan (2007) 402; Rehbinder (2008) 2; Wenzel and Burkhardt (2009)
22–23; Fagundes (2010) 652–705.
36 H.R. Rep. (1976) 79.
37 The UrhG that codified exhaustion for the first time in Germany designated the reward
theory as the leading policy consideration of the principle. Compare to Walter and von
Lewinski (2010) 135, note 226. On the Belohnungstheorie, see further Reimer (1972)
225–226; Röttinger (1993) 94; Puig (2013) 162.
38 UsedSoft v. Oracle (2012) para. 63.
39 Schack (2005) 180; Targosz (2010) 343.
40 The law of the EU is introduced in Chapter 2.
12 Theory of Copyright Exhaustion

Indeed, in Théberge, the Supreme Court of Canada took a similar

stance against absolute control by rights holders, with the court noting
that
[t]he proper balance among these and other public policy objectives lies not
only in recognizing the creator’s rights but in giving due weight to their limited
nature. In crassly economic terms it would be as inefficient to overcompensate
artists and authors for the right of reproduction as it would be self-defeating to
undercompensate them. Once an authorized copy of a work is sold to a mem-
ber of the public, it is generally for the purchaser, not the author, to determine
what happens to it. Excessive control by holders of copyrights and other forms of
intellectual property may unduly limit the ability of the public domain to incor-
porate and embellish creative innovation in the long-term interests of society as
a whole, or create practical obstacles to proper utilization.41

It is important to note, however, that Francophone countries, such as

France and Belgium, have provided copyright holders with far wider
rights concerning the fate of copies. According to the doctrine of droit
de destination, rights holders could have controlled any subsequent dis-
tributions of the copies, even if the latter had been initiated by the lawful
acquirers.42 This point will be revisited later, when it is shown how this
Francophone concept has subsequently been overruled by the harmo-
nization of the right of distribution within the EU.
These primary policy considerations were further supplemented by
a number of secondary, or indirect, considerations.43 Commentators
unanimously agree that the mere existence of the doctrine of exhaustion
makes it easier to acquire copies, due to their affordability (as it results in
the decrease of retail prices) and their availability (as it maintains access
to works being permanently or temporarily withdrawn from the primary
channels of the market).
In addition, exhaustion supports the preservation of cultural her-
itage. Research by Deirdre Mulligan and Jason Schultz showed that
only 4,267 works, of the 187,280 books published in the US between
1927 and 1946, were available through the customary channels of com-
merce in 2002.44 Similar data also showed that only 174 of 10,000 books

41 Théberge v. Galerie d’Art du Petit Champlain Inc., et al., [2002] 2 S.C.R. 336, 2002 SCC
34, para. 37. On the decision, see Ghosh (2013) 38–39; Crowne (2015) 802.
42 According to Desurmont, “the conception of the latter right is very broad on both
legislations ( . . . ) enabling the author to accompany permission to reproduce his work
with various conditions and limitations, and thereby to control the conditions governing
how the copies produced will be used by third parties.” See Desurmont (1987) 20.
43 On these secondary or indirect policy considerations, see Reese (2003) 585–610;
Perzanowski and Schultz (2011) 894–901; Serra (2013) 1774–1781; Puig (2013) 160–
162; Shinall (2014) 376; Reis (2015) 189–194; Katz (2015) 109–117; Rub (2015)
773–795; Kerber (2016) 153–156.
44 Mulligan and Schultz (2002) 472.
 Policy Considerations of Exhaustion 13

published in the US in 1930 were still commercially available in

2001.45 Likewise, only 4 percent of the 157,068 movies registered in
the database of Turner Classic Movies were available for home viewing
in the US in 2009.46 Without the doctrine of exhaustion, this content
could have potentially been lost from society forever, after the initial dis-
tribution is terminated by the rights holders.
Commentators noted that exhaustion ensures the transparency of
transactions47 and also respects the privacy of consumers.48 Further-
more, the competition generated by secondary markets triggers more
innovation by rights holders. Indeed, any overprotection of copyrights
and significant restrictions on secondary markets can chill innovation
by users and competitors of rights holders.49 The doctrine also effec-
tively mitigates against the effects of technological “lock-in,” by allowing
for a more relaxed enjoyment of works. This is done through decreas-
ing the reliance on the unique formats and channels of access applied
by manufacturers, distributors, and aggregators.50 Exhaustion can ulti-
mately facilitate competition among digital platforms and other service
providers.51 This seems to be plausible in the digital domain but seemed
to be a valid claim in the pre-Internet era, too. Aaron Perzanowski and
Jason Schultz have shown that several years prior to, and following, the
codification of the first-sale doctrine in 1909, US courts allowed for the
creative reinterpretation or transformation of the purchased copies as
well as the creation of new material objects (e.g., rebinding lawfully sold
copies of works).52
All these policy arguments have their roots in the analog world, prior
to the invention of digital technologies and, crucially, the Internet. The
drastically altered landscape we face today has prompted certain com-
mentators to reason that the doctrine of exhaustion shall only apply if
several supplementary requirements are met. These are as follows: that
the copies sold by the rights holder and resold by the acquirers shall not
compete (rivalrousness and Rivalität), the acquirer of the original copy
shall not maintain exclusive control over the copy of the work (exclud-
ability and Exklusivität), and the quality of the copies shall deteriorate
over time (consumability and Abnutzbarkeit).53 It is doubtful whether

45 Katz (2015) 110. 46 Kaufman (2009).

47 Hess (2013) 1971–1978; Trampuž (2016) 175–177. 48 Kerber (2016) 165.
49 Wolfgang Kerber noted that “permitting too far-reaching restrictions in regard to the
resale and use of digital copies might stifle and block too much further valuable inno-
vation activities, because then the users/innovators might need too often the consent of
the copyright owners.” See Kerber (2016) 164.
50 Region codes used on DVDs are such classic access control DRMs that lead to the
“lock-in” of lawful acquirers of the original DVDs. See further Yu (2012) 187–264.
51 Kerber (2016) 164. 52 Perzanowski and Schultz (2011) 912–922.
53 Capobianco (2013) 409–413; Zech (2013) 376–377.
14 Theory of Copyright Exhaustion

these requirements can easily be met in the digital age. In light of this,
jurisprudence and academia, in several countries, have been reluctant to
apply exhaustion to digital content.54 This book will argue and seek to
demonstrate that the doctrine should be expanded to the digital environ-
ment. Moreover, this book will submit that the three additional require-
ments may be fulfilled during the resale of digital data.

1.4 The Doctrine of Exhaustion under International

Copyright Law
The doctrine of exhaustion was originally developed at state level. For a
long time, there was no interest, particularly internationally, for the fur-
ther development of the doctrine, as this would have inevitably required
surrender of domestic solutions. Indeed, different countries regulated
the scope (including the limitations) of economic rights in considerably
different ways. For example, some countries did not even acknowledge
distribution as an independent economic right and consequently the
doctrine of exhaustion was not regulated at all. The scope of exhaus-
tion could vary between national, regional, or international55 depending
upon whether a country predominantly exported or imported cultural
goods.
The first international copyright treaties say nothing on distribution or
only mention it superficially.56 The international treaties/agreements that
include some relevant wording on our topic are the TRIPS Agreement
and the WIPO Internet Treaties (WCT/WPPT).57 Their rules are far
from uniform and leave notable space for signatories to regulate exhaus-
tion domestically.

1.4.1 TRIPS Agreement (1994)

The TRIPS Agreement, adopted in 1994, was the first international
agreement on intellectual property that touched upon the copyright
aspects of exhaustion.58 The original preparatory document of 1991 (the
Chairman’s Text) still stood for the introduction of a general right of

54 Compare to IV.3.3.
55 On these three competing models, see UNCTAD-ICTSD (2005) 93–94; Correa
(2007) 79; Abbott (2007) 5; Bonadio (2011) 154–155.
56 Compare with BC Art. 13(3), 14(1)(i) and 16(2). Some have argued that the right of
reproduction necessarily implies the existence of the right of distribution. Nevertheless,
this notion is not broadly accepted. On the theory of “implied right of (first) distribu-
tion,” see Ficsor (2014a) 5–7, especially note 5.
57 Goldstein and Hugenholtz (2010) 304–305; Blomqvist (2014) 119–126.
58 The first international treaty that regulated exhaustion was the Treaty on Intellectual
Property in Respect of Integrated Circuits of May 26, 1989, Art. 6(5).
 Doctrine of Exhaustion under International Copyright Law 15

distribution and the doctrine of exhaustion.59 These plans ultimately

failed, after lengthy negotiations,60 as the contracting parties failed to
reach a compromise on an independent right of distribution.61 Until
1994, only a limited number of countries had a settled regulation and/or
case law on the doctrine of exhaustion. These domestic solutions also
showed significant differences. Most developed countries with large eco-
nomic potential, strong domestic markets and the capacity to export cul-
tural goods (such as the US62 or Germany)63 were interested in national
exhaustion. Whereas, countries that relied heavily on the importation of
cultural goods, such as the Netherlands,64 Switzerland,65 Japan,66 Aus-
tralia, and New Zealand,67 as well as developing and small market coun-
tries in general, were interested in international exhaustion.68 Finally, the
EU adopted two directives before 1994 that were based on the concept of

59 Ficsor (2002) 153–154. 60 UNCTAD-ICTSD (2005) 97–104.

61 Reinbothe and von Lewinski (2002) 80; UNCTAD-ICTSD (2005) 94–109.
62 Compare to Chapter 3. 63 Reimer (1982) 364. 64 Compare to II.1.1.
65 Knopf (2001) 113–122. The Swiss Federal Supreme Court noted that national exhaus-
tion prevailed with respect to audiovisual works between August 1, 2002, and April 1,
2004, as the domestic copyright act allowed for the application of the doctrine if the
copies were originally put into circulation within the Swiss Federation. See: Schweiz-
erisches Bundesgericht 1.3.2007 (4C.384/2006) 70–72. The current and effective rules
limit the application of exhaustion on audiovisual works in terms of time. Under Art.
12(1bis ) of the Swiss Copyright Act the resale or rental of copies of audiovisual works
is forbidden as long as the rightholder exercises his public performance rights in movie
theaters.
66 During the period of the negotiations of the TRIPS Agreement, the courts of Japan
ruled expressly against international exhaustion. In a 1994 judgment of the Tokyo Dis-
trict Court the importation of 1,000 copies of the movie 101 Dalmatians was found
to be illegal, mainly since the movie was not yet officially released in Japan. See Don-
nelly (1997) 485. Later, the Japanese Copyright Act codified international exhaustion in
1999, with the sole exception of audiovisual works. See LaFrance (2009) 162. Shortly
thereafter, the Japanese Supreme Court expanded the scope of international exhaustion
to audiovisual works as well. See Doi (2002) N147–148.
67 Verma (1998) 562–565; Cohen Jehoram (1999) 509; Abbott (2000) 7; Longdin (2001)
112-4–112-9; Knopf (2001) 113-30–113-31; LaFrance (2009) 163–167; Mueller and
Langer (2016) 294; Frankel and Gervais (2016) 102–104. For a long time, international
exhaustion did not cover literary works in Australia. Indeed, expanding the reach of the
doctrine to cover this subject matter is still heavily contested by authors of literary works.
See Harmon and Clark (2016).
68 “The developing countries, who were quite understandably sceptical about signing
TRIPS, were certainly not about to be forbidden from allowing for international exhaus-
tion.” See Knopf (2001) 113–17. See further Cohen Jehoram (1999) 507, 509; Yu
(2012) 225–226. Frankel and Gervais noted that “parallel importation is a calibration
device to create competition in small markets [e.g., Israel, New Zealand, and Singapore]
where otherwise size often dictates a small number of players.” See Frankel and Gervais
(2016) 102. As a rare exception, South American countries mainly accept a national
exhaustion doctrine. Carlos and Juan Correa summarized that “[s]ome [Latin Ameri-
can] countries incorporated that principle for some categories of intellectual property
rights and not for others. While international exhaustion has been adopted in many
patent and trademark laws, national exhaustion prevails in the area of copyright. The
rationale for this differentiation is unclear.” See: Correa and Correa (2016) 213–214.
16 Theory of Copyright Exhaustion

regional exhaustion.69 Vincent Chiappetta described the futile prepara-

tion and the results of the TRIPS Agreement, observing that contracting
parties “agreed to disagree” on the content of exhaustion.70
Not surprisingly, the final text of the TRIPS Agreement turned out
to be the best compromise for the signatories and more importantly it
did not introduce any new substantive obligations. Instead, it granted
absolute freedom for the signatories regarding the issue of regulation,
“whether enacted by statute, articulated in judicial opinions, or for-
mulated in agency regulations or rules,”71 and whether the regulation
should have a national, regional, or international reach. The TRIPS
Agreement approached the doctrine from a neutral perspective stress-
ing that “[f]or the purposes of dispute settlement under this Agreement,
subject to the provisions of Articles 3 and 4 nothing in this Agreement
shall be used to address the issue of the exhaustion of intellectual prop-
erty rights.”72
This dubious formulation means that signatories are bound by the
principle of national treatment and the so-called most-favored-nation
treatment when designating the reach of exhaustion. Disputes stemming
from the domestic regulations shall not, however, be subject to a dispute
settlement procedure under the WTO law. The latter provision does not
prevent the injured party from initiating proceedings before the domestic
courts.73
Frederick Abbott highlighted, with respect to the opinion of Mr.
Adrian Otten, the then Secretary to the Trade Negotiating Group during
the Uruguay Round, that:
[t]he formula in Article 6, TRIPS Agreement, reflects a compromise between
governments favoring an explicit recognition of national discretion in regard
to exhaustion practices, including the choice of national or international
exhaustion, and governments not wanting to provide such recognition although
not seeking to regulate such practices specifically.74
Nevertheless, the TRIPS Agreement does include a few provisions that
bare resemblance to the doctrine of exhaustion. One relates to the right
of rental, and at least two others to the importation of (pirated) goods.

As a rare exception, courts in India have permanently refused to accept international

exhaustion. See Gomber (2017) 263–267.
69 Compare to II.2.1.
70 Chiappetta (2000) 333–392. On the conflict of developed and developing countries over
parallel imports during the debates of the TRIPS Agreement and in the post-TRIPS
period, see further Chiappetta (2016) 129–133.
71 Ghosh (2013) 3–4. 72 TRIPS Agreement Art. 6.
73 Heath (1997) 628–629; Knopf (2001) 113–13; UNCTAD-ICTSD (2005) 104–108;
Correa (2007) 78–79.
74 Abbott (2000). See further Verma (1998) 552–562.
 Doctrine of Exhaustion under International Copyright Law 17

Software, audio and video rental began in Japan,75 and subsequently

became a multi-billion-dollar business in the US and EU. The TRIPS
Agreement started with the tripartite negotiations of the US, Japan, and
the EU. Since the US Congress excluded the application of the first-sale
doctrine, in relation to the rental of audio recordings and computer pro-
grams by 1990,76 and the EU harmonized the right of rental by 1992,77
it is not surprising that the Agreement finally enabled the introduction
of the right of rental by its signatories.78
The TRIPS Agreement also enabled the contracting parties to adopt
regulation on temporary measures to prevent the import of such prod-
ucts that are in violation of the law.79 This provision does not foreclose
the application of regional or international exhaustion. Instead, it pro-
vides a “double force” for the benefit of countries that apply national
exhaustion. This rule allows states to protect against the import of prod-
ucts that are considered illegal under their own rules, irrespective of
whether the copies had been marketed lawfully in the source country.
The TRIPS Agreement also prohibits the cross-border distribution of
“pirated” products through the tools of customs law.80

1.4.2 The WIPO Internet Treaties (1996)

The two WIPO Internet Treaties of 1996 showed a clear progression of
the norms of exhaustion.81 For the first time in international copyright
law, these treaties allowed for a general right of distribution. Article 6(2)
of WCT notes:
[n]othing in this Treaty shall affect the freedom of Contracting Parties to
determine the conditions, if any, under which the exhaustion of the right [of
distribution] applies after the first sale or other transfer of ownership of the orig-
inal or a copy of the work with the authorization of the author.

Article 8(2) of WPPT contains essentially the same wording. According

to the WPPT:
[n]othing in this Treaty shall affect the freedom of Contracting Parties to deter-
mine the conditions, if any, under which the exhaustion of the right in paragraph

75 Horowitz (1987) 32. 76 Compare to III.3. 77 Compare to II.4.4.

78 TRIPS Agreement Art. 11. Compare to Yu (2014b) 1136–1137.
79 TRIPS Agreement Art. 44(1).
80 TRIPS Agreement Art. 51. On the practical application of customs law against pirated
products, see Deutsch and Zimmerman (2014) 276–286; Schneider and Maillefer
(2015) 262–268.
81 Ficsor (2003) 202–203. Ficsor noted that there was a considerable, but fruitless dis-
cussion on whether the Internet Treaties should introduce the right of importation. See
Ficsor (2014a) 9–14.
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seemed the full fruition of that popular adulation for which he had
lived,――in which he now died. Arrayed in a splendid and massy
robe of polished silver, he seated himself on the throne erected by
his grandfather Herod, in the great Herodian theater at Caesarea,
early in the morning of the day which was appointed for the
celebration of the great festal games, in honor of his royal patron,
Claudius Caesar. On this occasion, to crown his kingly triumph, the
embassadors of the great commercial Phoenician cities, Tyre and
Sidon, appeared before him to receive his condescending answer to
their submissive requests for the re-establishment of a friendly
intercourse between his dominions and theirs,――the agricultural
products of the former being quite essential to the thriving trade of
the latter. Agrippa’s reply was now publicly given to them, in which
he graciously granted all their requests, in such a tone of eloquent
benignity, that the admiring assembly expressed their approbation in
shouts of praise, and at last some bold adulators catching the idea
from the rays of dazzling light which flashed from the polished
surfaces of his metallic robe, and threw a sort of glory over and
around him, cried out, in impious exclamation, “It is the voice of a
God, and not of a man.” So little taste had the foolish king, that he
did not check this pitiful outbreak of silly blasphemy; but sat
swallowing it all, in the most unmoved self-satisfaction. But in the
midst of this profane glory, he was called to an account for which it ill
prepared him. In the expressive though figurative language of
Luke,――“immediately the messenger of the Lord struck him,
because he gave not the glory to God.” The Jewish historian, too, in
a similar manner assigns the reason. “The king did not rebuke the
flatterers, nor refuse their impious adulation. Shortly after he was
seized with a pain in the belly, dreadfully violent from the beginning.
Turning to his friends he said, ‘Behold! I, your god, am now
appointed to end my life,――the decree of fate having at once
falsified the voices that but just now were uttering lies about me; and
I, who have been called immortal by you, am now carried off dying.’
While he uttered these words he was tortured by the increasing
violence of his pain, and was accordingly carried back to his palace.
After five days of intense anguish, he died, in the fifty-fourth year of
his age, and in the seventh of his reign; having reigned four years
under Caius Caesar, and three under Claudius.” Thus ended the
days of the conscience-stricken tyrant, while the glorious gospel
cause which he had so vainly thought to check and overthrow, now,
in the words of Luke, “grew and was multiplied;” the spiteful Jews
having lost the right arm of their persecuting authority, in the death of
their king, and all Palestine now passing again under the direct
Roman rule, whose tolerant principles became once more the great
protection of the followers of Jesus.

Agrippa’s death.――My combination of the two different accounts given by Luke and
Josephus of this event, I believe accords with the best authorities; nor am I disposed, as
Michaelis is, to reject Josephus’s statement as irreconcilable with that in the Acts, though
deficient in some particulars, which are given in the latter, and though not rightly
apprehending fully the motives and immediate occasions of many things which he
mentions. In the same way, too, several minor circumstances are omitted in Luke, which
can be brought in from Josephus so as to give a much more vivid idea of the whole event,
than can be learned from the Acts alone. (See Michaelis’s introduction to the New
Testament,――on Luke. Also Wolf and Kuinoel.)

peter’s place of refuge.

Luke, in mentioning the departure of Peter from Jerusalem after

his escape from prison by night, merely says, “And going out, he
went to another place.” The vague, uncertain manner in which this
circumstance is mentioned, seems to imply that the writer really
knew nothing about this “other place.” It was not a point essential to
the integrity of the narrative, though interesting to all the readers of
the history, since the most trifling particulars about the chief apostle
might well be supposed desirable to be known. But though if it had
been known, it would have been well worth recording, it was too
trifling a matter to deserve any investigation, if it had not been
mentioned to Luke by those from whom he received the accounts
which he gives of Peter; and since he is uniformly particular in
mentioning even these smaller details, when they fall in the way of
his narrative, it is but fair to conclude that in this instance he would
have satisfied the natural and reasonable curiosity of his readers, if
he had had the means of doing so. There could have been no motive
when he wrote, for concealing the fact, and he could have expressed
the whole truth in as few words as he has given to show his own
ignorance of the point. From the nature of the apostle’s motives in
departing from Jerusalem, it must have been at that time desirable to
have his place of refuge known to as few as possible; and the fact, at
that time unknown, would, after the motive for concealment had
disappeared, be of too little interest to be very carefully inquired after
by those to whom it was not obvious. In this way it happened, that
this circumstance was never revealed to Luke, who not being among
the disciples at Jerusalem, would not be in the way of readily hearing
of it, and in writing the story would not think it worth inquiring for. But
one thing seems morally certain; if Peter had taken refuge in any
important place or well known city, it must have been far more likely
to have been afterwards a fact sufficiently notorious to have come
within the knowledge of his historian; but as the most likely place for
a secret retirement would have been some obscure region, this
would increase the chances of its remaining subsequently unknown.
This consideration is of some importance in settling a few negative
facts in relation to various conjectures which have at different times
been offered on the place of Peter’s refuge.

Among these, the most idle and unfounded is, that on leaving
Jerusalem he went to Caesarea. What could have suggested this
queer fancy to its author, it is hard to say; but it certainly implies the
most senseless folly in Peter, when seeking a hiding place from the
persecution of king Herod Agrippa, to go directly to the capital of his
dominions, where he might be expected to reside for the greater part
of the time, and whither he actually did go, immediately after his
disappointment about this very apostle. It was jumping out of the
frying-pan into the fire, to go thus away from among numerous
friends who might have found a barely possible safety for him in
Jerusalem, and to seek a refuge in Caesarea where there were but
very few friends of the apostles, and where he would be in constant
danger of discovery from the numerous minions of the king, who
thronged all parts of that royal city, and from the great number of
Greeks, Romans and Syrians, making up the majority of the
population, who hated the very sight of a Jew, and would have taken
vast pleasure in gratifying their spite, and at the same time gaining
high favor with the king by hunting out and giving up to wrath an
obscure heretic of that hated race. It would not have been at all
accordant with the serpent-wisdom enjoined on the apostle, to have
run his head thus into the lion’s mouth, by seeking a quiet and safe
dwelling-place beneath the very nose of his powerful persecutor.

Another conjecture vastly less absurd, but still not highly probable,
is, that Antioch was the “other place” to which Peter went from
Jerusalem; but an objection of great force against this, is that already
alluded to above, in reference to the ineligibility of a great city as a
place of concealment; and in this instance is superadded the
difficulty of his immediately making this long journey over the whole
extent of Agrippa’s dominions, northward, at such a time, when the
king’s officers would be every where put on the alert for him, more
particularly in the direction of his old home in Galilee, which would be
in the nearest way to Antioch. His most politic movement, therefore,
would be to take some shorter course out of Palestine. Moreover, in
this case, there is a particular reason why Luke would have
mentioned the name of Antioch if that had been the place. What the
proof of this reason is, can be best shown in his life; but the bare
statement of the fact may be sufficient for the present,――that he
was himself a citizen of that place, and could not have been ignorant
or negligent of the circumstance of this visit, if it had occurred.

It has been suggested by others that the expression, “to another

place,” does not imply a departure from Jerusalem, but is perfectly
reconcilable with the supposition that Peter remained concealed in
some safe and unknown part of the city. This view would very
unobjectionably accord with the vagueness of the passage,――since
if merely another part of Jerusalem was meant, no name could be
expected to describe it. But it would certainly seem like a
presumptuous rashness in Peter, to risk in so idle a manner the
freedom which he owed to a miraculous interposition; for the
circumstance of such an interposition could not be intended to justify
him in dispensing with a single precaution which would be proper
and necessary after an escape in any other mode. Such is not the
course of divine dealings, whether miraculous or ordinary; and in a
religious as well as an economical view, the force and truth of Poor
Richard’s saying is undoubted,――“God helps them who help
themselves;” nor is his helping them any reason why they should
cease to help themselves. Peter’s natural impulse, as well as a
considerate prudence, then, would lead him to immediate exertions
to keep the freedom so wonderfully obtained, and such an impulse
and such a consideration would at once teach him that the city was
no place for him, at a time when the most desperately diligent search
might be expected. For as soon as his escape was discovered, Luke
says, that the king “sought most earnestly for him,” and in a search
thus characterized, inspired too by the most furious rage at the
disappointment, hardly a hole or corner of Jerusalem could have
been left unransacked; so that this preservation of the apostle from
pursuers so determined, would have required a continual series of
miracles, fully as wonderful as that which effected his deliverance
from castle Antonia. His most proper and reasonable course would
then have been directly eastward from Jerusalem,――a route which
would give him the shortest exit from the territories of Herod Agrippa,
leading him directly into Arabia, a region that was, in another great
instance hereafter mentioned, a place of comfortable and
undisturbed refuge for a person similarly circumstanced. A journey of
fifty or sixty miles through an unfrequented and lonely country, would
put him entirely beyond pursuit; and the character of the route would
make it exceedingly difficult to trace his flight, as the nature of the
country would facilitate his concealment, while its proximity to
Jerusalem would make his return after the removal of the danger by
the death of Agrippa, as easy as his flight thither in the first place.

At Jerusalem.――This notion I find nowhere but in Lardner, who approves it, quoting
Lenfant. [Lardner, History of the Apostles and Evangelists, Life of Peter.]

Another series of papistical fables carries him on his supposed

tour on the coast, beyond Caesarea, and, uniting two theories,
makes him visit Antioch also; and finally extends his pilgrimage into
the central and northern parts of Asia Minor. This fabulous legend,
though different in its character from the preceding accounts,
because it impudently attempts to pass off a bald invention as an
authentic history, while those are only offered honestly as probable
conjectures, yet may be worthy of a place here, because it is
necessary in giving a complete view of all the stories which have
been received, to present dishonest inventions as well as justifiable
speculations. The clearest fabulous account given of his journey
thither, is, that parting from Jerusalem as above-mentioned, he
directed his way westwards toward the sea-coast of Palestine, first to
Caesarea Stratonis, (or Augusta,) where he constituted one of the
presbyters who attended him from Jerusalem, bishop of the church
founded there by him on his visit;――that leaving Caesarea he went
northwards along the coast into Phoenicia, arriving at the city of
Sidon;――that there he performed many cures and also appointed a
bishop; next to Berytus, (now Beyroot,) in Syria, and there also
appointed a bishop. Going on through Syria, along the coast of the
Mediterranean, they bring him next, in his curiously detailed track, to
Biblys, then to the Phoenician Tripoli, to Orthosia, to Antandros, to
the island of Aradus, near the coast, to Balaenas, to Panta, to
Laodicea, and at last to Antioch,――planting churches in all these
hard-named towns on the way, and sowing bishops, as before, by
handfulls, as well as performing vast quantities of miracles. The story
of Peter’s journey goes on to say, that after leaving Antioch he went
into Cappadocia, and stayed some time in Tyana, a city of that
province. Proceeding westward thence, he came to Ancyra, in
Galatia, where he raised a dead person, baptized believers, and
instituted a church, over which he ordained a bishop. Thence
northward, into Pontus, where he visited the cities of Sinope and
Amasea, on the coast of the Euxine sea. Then turning eastward into
Paphlagonia, stopped at Gangra and Claudiopolis; next into Bithynia,
to the cities of Nicomedia and Nicaea; and thence returned directly
to Antioch, whence he shortly afterwards went to Jerusalem.

This ingenious piece of apostolic romance is due to the same veracious Metaphrastes,
above quoted. I have derived it from him through Caesar Baronius, who gives it in his
Annales Ecclesiastici. (44, § 10, 11.) The great annalist approves and adopts it, however,
only as far as it describes the journey of Peter to Antioch; and there he leaves the narrative
of Metaphrastes, and instead of taking Peter on his long tour through Asia Minor and back
to Jerusalem, as just described, carries him off upon a far different route, achieving the
great journey westward, which accords with the view taken by the vast majority of the old
ecclesiastical writers, and which is next given here. Metaphrastes also maintains this view,
indeed, but supposes and invents all the events just narrated, as intermediate occurrences,
between Peter’s escape and his great journey, and begins the account of this latter, after his
return from his Asian circuit.

To connect all this long pilgrimage with the story given in the sacred record, the sage
Baronius makes the ingenious suggestion, that this was the occult reason why Agrippa was
wroth with those of Tyre and Sidon; namely, that Peter had gone through their country when
a fugitive from the royal vengeance, and had been favorably received by the Tyrians and
Sidonians, who should have seized him as a runaway from justice, and sent him back to
Agrippa. This acute guess, he thinks, will show a reason also for the otherwise
unaccountable fact, that Luke should mention this quarrel between Agrippa and those cities,
in connection with the events of Peter’s escape and Agrippa’s death. For the great cardinal
does not seem to appreciate the circumstance of its close relation to the latter event, in
presenting the occasion of the reconciliation between the king and the offending cities, on
which the king made his speech to the people, and received the impious tribute of praise,
which was followed by his death;――the whole constituting a relation sufficiently close
between the two events, to justify the connection in Luke.

the first visit to rome.

But the view of this passage in Peter’s history, which was long
adopted universally by those who took the pains to ask about this
“other place,” mentioned by Luke, and the view which involves the
most important relations to other far greater questions, is, that Rome
was the chief apostle’s refuge from the Agrippine persecution, and
that in the imperial city he now laid the deep foundations of the
church universal. On this point some of the greatest champions of
papistry have expended vast labor, to establish a circumstance so
convenient for the support of the dogma of the divinely appointed
supremacy of the Romish church, since the belief of this early visit of
Peter would afford a very convenient basis for the very early
apostolical foundation of the Roman see. But though this notion of
his refuge has received the support of a vast number of great names
from the very early periods of Christian literature, and though for a
long period this view was considered indubitable, from the sanction
of ancient authorities, there is not one of the various conjectures
offered which is so easily overthrown on examination, from the
manner in which it is connected with other notions most palpably
false and baseless. The old papistical notion was, that Peter at this
time visited Rome, founded the church there, and presided over it,
as bishop, twenty-five years, but occasionally visiting the east. As
respects the minute details of this journey to Rome, the papist
historians are by no means agreed, few of them having put any
value upon the particulars of such an itinerary, until those periods
when such fables were sought after by common readers with more
avidity. But there is at least one hard-conscienced narrator, who
undertakes to go over all the steps of the apostle on the road to the
eternal city, and from his narrative are brought these circumstances.
The companions assigned him by this romance, on his journey, were
the evangelist Mark, Appollinaris, afterwards, as the story goes,
appointed by him bishop of Ravenna, in Italy; Martial, afterwards a
missionary in Gaul, and Rufus, bishop of Capua, in Italy. Pancratius,
of Tauromenius, and Marcian, of Syracuse, in Sicily, had been sent
on by Peter to that island, while he was yet staying at Antioch, but on
his voyage he landed there and made them his companions also.
His great route is said to have led him to Troy, on the northern part of
the Asian coast of the Aegean sea, whence they seem to have made
him cross to the eastern port of Corinth. At this great city of Greece,
they bring him into the company of Paul and Silas, who were sent
thither, to be sure, on a mission, but evidently at a different time, a
circumstance which, among many others, helps to show the bungling
manner in which the story is made up. From Corinth they carry him
next to Syracuse, as just mentioned. Thence to Neapolis, (Naples,)
in Campania, where, as the monkish legend says, this chief of the
apostles celebrated with his companions a mass, for the safe
progress of his voyage to Italy. Having now reached Italy, he is made
the subject of a new fable for the benefit of every city along the
coast, and is accordingly said to have touched at Liburnum, (Livorno,
Leghorn,) being driven thither by stress of weather, and thence to
Pisa, near by, where he offered up another mass for his
preservation, as is still maintained in local fables; but the general
Romish legend does not so favor these places, but brings the
apostle, without any more marine delay or difficulty, directly over land
from Naples to Rome; and on this route again, one lie suggesting
another, a local superstition commemorates the veritable
circumstances, that he made this land-journey from Naples to Rome,
on foot; and on the way stopped at the house of a Galilean
countryman of his own, named Mark, in a town called Atina, of which
the said Mark was afterwards made bishop.

Respecting these minute accounts of Peter’s stopping-places on this apocryphal

journey, Baronius says, “Nobilia in iis remanserunt antiquitatis vestigia, sed traditiones
potius quam scriptura firmata.” “There are in those places some noble remains of this
ancient history, but rather traditions than well assured written accounts.” The part of the
route from Antioch to Sicily he takes on the authority of the imaginative Metaphrastes; but
the rest is made up from different local superstitions of a very modern date, not one of
which can be traced farther back than the time when every fable of this sort had a high
pecuniary value to the inventors, in bringing crowds of money-giving pilgrims to the spot
which had been hallowed by the footsteps of the chief apostle. Even the devout Baronius,
however, is obliged to confess at the end of this story, “Sed de rebus tam antiquis et
incertis, quid potissimum affirmare debeamus, non satis constat.”――“But as to matters so
ancient and uncertain, it is not sufficiently well established what opinion we may most safely
pronounce.”

As to the early part of the route, speaking of the account given by Metaphrastes of
Peter’s having on his way through Troy ordained Cornelius, the centurion, bishop of that
place, Baronius objects to the truth of this statement, the assertion that Cornelius had been
previously ordained bishop of Caesarea, where he was converted. A very valuable
refutation of one fable by another as utterly unfounded.

Respecting the causes of this great journey of the apostle to the

capital of the world, the opinions even of papist writers are as
various as they are about the route honored by his passage. Some
suppose his motive to have been merely a desire for a refuge from
the persecution of Agrippa;――a most unlikely resort, however, for
nothing could be more easy than his detection in passing over such
a route, especially by sea, where every vessel could be so easily
searched at the command of Agrippa, whose influence extended far
beyond his own territory, supported as he was, by the unbounded
possession of the imperial Caesar’s favor, which would also make
the seizure of the fugitive within the great city itself, a very easy
thing. Others, however, do not consider this journey as connected in
any way with his flight from Agrippa, (for many suppose it to have
been made after the death of that king,) and find the motive for such
an effort in the vast importance of the field opened for his labors in
the great capital of the world, where were so many strong holds of
error to be assaulted, and from which an influence so wide and
effectual might be exerted through numerous channels of
communication to all parts of the world. Others have sought a reason
of more definite and limited character, and with vast pains have
invented and compiled a fable of most absurdly amusing character,
to make an object for Peter’s labors in the distant capital. The story
which has the greatest number of supporters, is one connected with
Simon Magus, mentioned in the sacred record, in the account of the
labors of Philip in Samaria, and the visit of Peter and John to that
place. The fable begins with the assertion that this magician had
returned to his former tricks after his insincere conformity to the
Christian faith, and had devoted himself with new energy to the easy
work of popular deception, adding to his former evil motives, that of
deadly spite against the faith to which he appeared so friendly, at the
time when the sacred narrative speaks of him last. In order to find a
field sufficiently ample for his enlarged plans, he went to Rome, and
there, in the reign of Claudius Caesar, attained a vast renown by his
magical tricks, so that he was even esteemed a god, and was even
so pronounced by a solemn decree of the Roman senate, confirmed
by Claudius himself, who was perfectly carried away with the
delusion, which seems thus to have involved the highest and the
lowest alike. The fable proceeds to introduce Peter on the scene, by
the circumstance of his being called by a divine vision to go to Rome
and war against this great impostor, thus advancing in his impious
supremacy, who had already in Samaria been made to acknowledge
the miraculous efficacy of the apostolic word. Peter thus brought to
Rome by the hand of God, publicly preached abroad the doctrine of
salvation, and meeting the arch-magician himself, with the same
divine weapons whose efficacy he had before experienced,
overcame him utterly, and drove him in confusion and disgrace from
the city. Nor were the blessings that resulted to Rome from this visit
of Peter, of a merely spiritual kind. So specially favored with the
divine presence and blessing were all places where this great
apostle happened to be, that even their temporal interests shared in
the advantages of the divine influence that every where followed
him. To this cause, therefore, are gravely referred by papistical
commentators, the remarkable success which, according to heathen
historians, attended the Roman arms in different parts of the world
during the second year of Claudius, to which date this fabulous visit
is unanimously referred by all who pretend to believe in its
occurrence.

Importance of the field of labor.――This is the view taken by Leo, (in sermon 1, in nat.
apost. quoted by Baronius, Annales 44, § 26.) “When the twelve apostles, after receiving
from the Holy Spirit the power of speaking all languages,” (an assertion, by the way, no
where found in the sacred record,) “had undertaken the labor of imbuing the world with the
gospel, dividing its several portions among themselves; the most blessed Peter, the chief of
the apostolic order was appointed to the capital of the Roman empire, so that the light of
truth which was revealed for the salvation of all nations, might from the very head, diffuse
itself with the more power through the whole body of the world. For, what country had not
some citizens in this city? Or what nation anywhere, could be ignorant of anything which
Rome had been taught? Here were philosophical dogmas to be put down――vanities of
worldly wisdom to be weakened――idol-worship to be overthrown,”――&c. “To this city
therefore, thou, most blessed apostle Peter! didst not fear to come, and (sharing thy glory
with the apostle Paul, there occupied with the arrangement of other churches,) didst enter
that forest of raging beasts, and didst pass upon that ocean of boisterous depths, with more
firmness than when thou walkedst on the sea. Nor didst thou fear Rome, the mistress of the
world, though thou didst once, in the house of Caiaphas, dread the servant maid of the
priest. Not because the power of Claudius, or the cruelty of Nero, were less dreadful than
the judgment of Pilate, or the rage of the Jews; but because the power of love now
overcame the occasion of fear, since thy regard for the salvation of souls would not suffer
thee to yield to terror. * * * The miraculous signs, gifts of grace, and trials of virtue, which
had already been so multiplied to thee, now increased thy boldness. Already hadst thou
taught those nations of the circumcision who believed. Already hadst thou filled Pontus,
Galatia, Cappadocia, Asia and Bithynia with the gospel; and now, without a doubt of the
advance of the work, or of the certainty of thy own fate, thou didst plant the trophy of the
cross of Christ upon the towers of Rome.” Arnobius is also quoted by Baronius to similar
effect.

Simon Magus.――This fable has received a wonderfully wide circulation, and long
maintained a place among the credible accounts of early Christian history, probably from
the circumstance of its taking its origin from so early a source. Justin Martyr, who flourished
from the year 140 and afterwards, in his apology for the Christian religion, addressed to the
emperor Antoninus Pius, says, “Simon, a Samaritan, born in a village named Gitthon, in the
time of Claudius Caesar, was received as a god in your imperial city of Rome, and honored
with a statue, like other gods, on account of his magical powers there exhibited by the aid of
demons; and this statue was set up in the river Tiber, between two bridges, and had this
Latin inscription, Simoni deo sancto. Him too, all the Samaritans worship, and a few of
other nations, acknowledging him as the highest god, (πρωτον θεον.) They also worship a
certain Helena, who at that time followed him about,” &c. &c. &c. with more dirty trash
besides, than I can find room for. And in another passage of the same work, he alludes to
the same circumstances. “In your city, the mistress of the world, in the time of Claudius
Caesar, Simon Magus struck the Roman senate and people with such admiration of himself,
that he was ranked among the gods, and was honored with a statue.” Irenaeus, who
flourished about the year 180, also gives this story with hardly any variation from Justin.
Tertullian, about A. D. 200, repeats the same, with the addition of the circumstance, that not
satisfied with the honors paid to himself, he caused the people to debase themselves still
further, by paying divine honors to a woman called (by Tertullian) Larentina, who was
exalted by them to a rank with the goddesses of the ancient mythology, though the good
father gives her but a bad name. Eusebius, also, about A. D. 320, refers to the testimonies
of Justin and Irenaeus, and adds some strange particulars about a sect, existing in his time,
the members of which were said to acknowledge this Simon as the author of their faith,
whom they worshiped along with this woman Helena, falling prostrate before the pictures of
both of them, with incense and sacrifices and libations to them, with other rites, unutterably
and unwritably bad. (See Eusebius, Church History, II. 13.)

In the three former writers, Justin, Irenaeus and Tertullian, this absurd story stands by
itself, and has no connection with the life of Peter; but Eusebius goes on to commemorate
the circumstance, previously unrecorded, that Peter went to Rome for the express purpose
of putting down this blasphemous wretch, as specified above, in the text of my narrative,
from this author. (Eusebius, Church History, II. 14.)

Now all this fine series of accounts, though seeming to bear such an overwhelming
weight of testimony in favor of the truth and reality of Simon Magus’s visit to Rome, is
proved to be originally based on an absolute falsehood; and the nature of this falsehood is
thus exposed. In the year 1574, during the pontificate of Pope Gregory XIII., there was an
excavation made for some indifferent purpose in Rome, on the very island in the Tiber, so
particularly described by Justin, as lying in the center of the river between two bridges, each
of which rested an abutment on it, and ran from it to the opposite shores. In the progress of
this excavation, the workmen, as is very common in that vast city of buried ruins, turned up,
among other remains of antiquity, the remnant of a statue with its pedestal, which had
evidently once stood erect upon the spot. Upon the pedestal was an inscription most
distinctly legible, in these words: Semoni sango deo fidio sacrum――Sex Pompeius
s. p. f. col. mussianus――quinquennalis decur. bidentalis――donum dedit. (This
was in four lines, each line ending where the blank spaces are marked in the copy.) In order
to understand this sentence, it must be known, that the Romans, among the innumerable
objects of worship in their complicated religion, had a peculiar set of deities which they
called Semones. A Semo was a kind of inferior god, of an earthly character and office, so
low as to unfit him for a place among the great gods of heaven, Jupiter, Juno, Apollo, &c.,
and was accordingly confined in his residence entirely to the earth; where the Semones
received high honors and devout worship, and were commemorated in many places, both in
city and country, by statues, before which the passer might pay his worship, if devoutly
disposed. These statues were often of a votive character, erected by wealthy or
distinguished persons for fancied aid, received from some one of these Semones, in some
particular season of distress, or for general prosperity. This was evidently the object of the
statue in question. Priapus, Hipporea, Vertumnus, and such minor gods were included
under the general title of Semones; and among them was also ranked a Sabine divinity,
named Sangus or Sancus, who is, by some writers, considered as corresponding in
character to the Hercules of the Greeks. Sangus or Sancus is often alluded to in the Roman
classics. Propertius (book 4) has a verse referring to him as a Sabine deity. “Sic Sancum
Tatiae composuere Cures.” Ovid also, “Quaerebam Nonas Sanco fidio ne referrem.” As to
this providentially recovered remnant of antiquity, therefore, there can be no doubt that it
was a votive monument, erected by Sextus Pompey to Sangus the Semo, for some reason
not very clearly expressed.

Baronius tells also that he had seen a stone similarly inscribed. “sango sancto
semon.――deo fidio sacrum――decurio sacerdotum bidentalium――reciperatis
vectigalibus.” That is, “Sacred to Sangus, the holy Semo, the god Fidius,――a decury
(company of ten) of the priests of the Bidental sacrifices have raised this in gratitude for
their recovered incomes.” Dionysius Halicarnassaeus is also quoted by Baronius as
referring to the worship of the Semo, Sangus; and from him and various other ancient
writers, it appears that vows and sacrifices were offered to this Sangus, for a safe journey
and happy return from a distance.

From a consideration of all the circumstances of this remarkable discovery, and from the
palpable evidence afforded by the inherent absurdity of the story told by Justin Martyr and
his copyists, the conclusion is justifiable and irresistible, that Justin himself, being a native
of Syria, and having read the story of Simon Magus in the Acts, where it is recorded that he
was profoundly reverenced by the Samaritans, and was silenced and rebuked by Peter
when he visited that place,――with all this story fresh in his mind, (for he was but a new
convert to Christianity,) came to Rome, and going through that city, an ignorant foreigner,
without any knowledge of the religion, or superstitions, or deities, and with but an indifferent
acquaintance with their language, came along this bridge over the Tiber to the island, where
had been erected this votive statue to Semo Sangus; and looking at the inscription in the
way that might be expected of one to whom the language and religion were strange, he was
struck at once with the name Semon, as so much resembling the well-known eastern name
Simon, and began speculating at once, about what person of that name could ever have
come from the east to Rome, and there received the honors of a god. Justin’s want of
familiarity with the language of the Romans, would prevent his obtaining any satisfactory
information on the subject from the passers-by; and if he attempted to question them about
it, he would be very apt to interpret their imperfect communications in such a way as suited
the notion he had taken up. If he asked his Christian brethren about the matter, their very
low character for general intelligence, the circumstance that those with whom he was most
familiar, must have been of eastern origin, and as ignorant as he of the minute peculiarities
of the Roman religion, and their common disposition to wilfully pervert the truth, and invent
fables for the sake of a good story connected with their own faith, (of which we have
evidences vastly numerous, and sadly powerful in the multitude of such legends that have
come down from the Christians of those times,) would all conspire to help the invention and
completion of the foolish and unfounded notion, that this statue here erected Semoni Sanco
Deo, was the same as Simoni Deo Sancto, that is, “to the holy god Simon;” and as it was
always necessary to the introduction of a new god among those at Rome, that the Senate
should pass a solemn act and decree to that effect, which should be confirmed by the
approbation of the emperor, it would at once occur to his own imaginative mind, or to the
inventions of his fabricating informers, that Simon must of course have received such a
decree from the senate and Caesar. This necessarily also implied vast renown, and
extensive favor with all the Romans, which he must have acquired, to be sure, by his
magical tricks, aided by the demoniac powers; and so all the foolish particulars of the story
would be made out as fast as wanted. The paltry fable also appended to this by all the
Fathers who give the former story, to the effect, that some woman closely connected with
him, was worshiped along with him, variously named Helena, Selena and Larentina, has no
doubt a similarly baseless origin; but is harder to trace to its beginnings, because it was not
connected with an assertion, capable of direct ocular, as well as historical, refutation, as that
about Simon’s statue most fortunately was. The second name, Selena, given by Irenaeus,
is exactly the Greek word for the moon, which was often worshiped under its appropriate
name; and this tale may have been caught up from some connection between such a
ceremony and the worship of some of the Semones,――all the elegant details of her life
and character being invented to suit the fancies of the reverend fathers. The story, that she
had followed Simon to Rome from the Phoenician cities, Tyre and Sidon, suggests to my
mind at this moment, that there may have been a connection between this and some old
story of the importation of a piece of idolatry from that region, so famed for the worship of
the

“mooned Ashtaroth,

Heaven’s queen and mother both.”

But this trash is not worth the time and paper I am spending upon it, since the main part of
the story, concerning Simon Magus as having ever been seen or heard of in Rome, by
senate, prince or people, in the days of Claudius, is shown, beyond all reasonable question,
to be utterly false, and based on a stupid blunder of Justin Martyr, who did not know Latin
enough to tell the difference between sanco and sancto, nor between Semoni and Simoni.
And after all, this is but a fair specimen of Justin Martyr’s usual blundering way, of which his
few pages present other instances for the inquiring reader to stumble over and bewilder
himself upon. Take, for example, the gross confusion of names and dates which he makes
in a passage which accidentally meets my eye, on a page near that from which the above
extract is taken. In attempting to give an account of the way in which the Hebrew Bible was
first translated into Greek, he says that Ptolemy, king of Egypt, sent to Herod, king of the
Jews, for a copy of the Bible. But when or where does any history, sacred or profane, give
any account whatever of any Ptolemy, king of Egypt, who was cotemporary with either of
the Herods? The last of the Ptolemies was killed, while a boy, in the Egyptian war with
Julius Caesar, before Herod had himself attained to manhood, or had the most distant
thought of the throne of Palestine. The Ptolemy who is said to have procured the Greek
translation of the Bible, however, lived about three hundred years before the first Herod. It is
lamentable to think that such is the character of the earliest Christian father who has left
works of any magnitude. Who can wonder that Apologies for the Christian religion, full of
such gross blunders, should have failed to secure the belief, or move the attention of either
of the Antonines, to whom they were addressed,――the Philosophic, or the Pious? And by
a writer who pretended to tell the wisest of the Caesars, that in his imperial city, had been
worshiped, from the days of Claudius, a miserable Samaritan impostor, who, an outcast
from his own outcast land, had in Rome, by a solemn senatorial and imperial decree, been
exalted to the highest god-ship, and that the evidence of this fact was found in a statue
which that emperor well knew to be dedicated to the most ancient deities of Etruscan origin,
worshiped there ever since the days of Numa Pompilius, but which this Syrian Christian had
blunderingly supposed to commemorate a man who had never been heard of out of
Samaria, except among Christians. And as for such martyrs, if there is any truth whatever in
the story that his foolish head was cut off by the second Antonine, the only pity is, it was not
done a little sooner, so as to have kept the Christian world from the long belief of all this folly
about an invention so idle, and saved me the trouble of exposing it.

The fullest account ever given of this fable and all its progress, is found in the Annales
Ecclesiastici of Caesar Baronius, (A. C. 44. § 51‒59.) who, after furnishing the most ample
references to sacred and profane authorities, which palpably demonstrate the falsity of the
story, returns with all the solemn bigotry of a papist, to the solemn conviction that the fathers
and the saints who tell the story, must have had some very good reason for believing it.

The other copyists of Justin hardly deserve any notice; but it is interesting and instructive
to observe how, in the progress of fabulous invention, one lie is pinned on to the tail of
another, to form a glorious chain of historical sequences, for some distant ecclesiastical
annalist to hang his servile faith upon. Eusebius, for instance, enlarges the stories of Justin
and Irenaeus, by an addition of his own,――that in his day there existed a sect which
acknowledged this same Simon as God, and worshiped him and Helena or Selena, with
some mysteriously wicked rites. Now all that his story amounts to, is, that in his time there
was a sect called by a name resembling that of Simon, how nearly like it, no one knows; but
that by his own account their worship was of a secret character, so that he could, of course,
know nothing certainly. But this is enough for him to add, as a solemn confirmation of a
story now known to have been founded in falsehood. From this beginning, Eusebius goes
on to say that Peter went to Rome in the second year of Claudius, to war against this Simon
Magus, who never went there; so that we know how much this whole tale is worth by
looking into the circumstance which constitutes its essential foundation. The idea of Peter’s
visit to Rome at that time, is no where given before Eusebius, except in some part of the
Clementina, a long series of most unmitigated falsehoods, forged in the name of Clemens
Romanus, without any certain date, but commonly supposed to have been made up of the
continued contributions of several impudent liars, during different portions of the second,
third and fourth centuries.

Creuzer also, in his deep and extensive researches into the religions of antiquity, in
giving a “view of some of the older Italian nations,” speaks of “Sancus Semo.” He quotes
Augustin (De civitate Dei. XVIII. 19,) as authority for the opinion that he was an ancient king,
deified. He also alludes to the passage in Ovid, (quoted above by Baronius,) where he is
connected with Hercules, and alluded to under three titles, as Semo, Sancus and Fidius.
(Ovid, Fasti, VI. 213, et seq.) But the learned Creuzer does not seem to have any correct
notion of the character of the Semones, as a distinct order of inferior deities;――a fact
perfectly certain as given above, for which abundant authority is found in Varro, (de
Mystag.) as quoted by Fulgentius and Baronius. From Creuzer I also notice, in an
accidental immediate connection with Semo Sancus, the fact that the worship of the moon
(Luna) was also of Sabine origin; and being introduced along with that of Sancus, by Numa,
may have had some relation to that Semo, and may have concurred in originating the notion
of the fathers about the woman Selena or Helena, as worshiped along with Simon. He also
just barely alludes to the fact that Justin and Irenaeus have confounded this Semo Sancus
with Simon Magus. (See Creuzer’s Symbolik und Mythologie der alter Voelker, II. Theil. pp.
964‒965.)

The next conclusion authorized by those who support this fable is,
that Peter, after achieving this great work of vanquishing the
impostor Simon, proceeded to preach the gospel generally; yet not
at first to the hereditary citizens of imperial Rome, nor to any of the
Gentiles, but to his own countrymen the Jews, great numbers of
whom then made their permanent abode in the great city. These
foreigners, at that time, were limited in Rome to a peculiar section of
the suburbs, and hardly dwelt within the walls of the city itself;――an
allotment corresponding with similar limitations existing in some of
the modern cities of Europe, Asia, and northern Africa, and even in
London, though there, only in accordance with long usage, and with
actual convenience, but not with any existing law. The quarter of
Rome in which the Jews dwelt in the days of Claudius, was west of
the central section of the city, beyond the Tiber; and to this suburban
portion, the story supposes the residence and labors of Peter to
have been at first confined. But after a time, the fame of this mighty
preacher of a new faith spread beyond, from this despised foreign
portion of the environs, across the Tiber, over the seven hills
themselves, and even into the halls of the patrician lords of Rome.
Such an extension of fame, indeed, seems quite necessary to make
these two parts of this likely story hang together at all; for it is hard to
see how a stranger, from a distant eastern land, could thus appear
suddenly among them, and overturn, with a defeat so total and
signal, the pretensions of one who had lately been exalted by the
opinions of an adoring people to the character of a god, and had
even received the solemn national sanction of this exaltation by a
formal decree of the senate of Rome, confirmed by the absolute
voice of the Caesar himself; and after such a victory, over such a
person, be left long unnoticed in an obscure suburb. In accordance,
therefore, with this reasonable notion, it is recorded in the
continuation of the story, that when Peter, preaching at Rome, grew
famous among the Gentiles, he was no longer allowed to occupy
himself wholly among the Jews, but was thereafter taken by Pudens,
a senator who believed in Christ, into his own house, on the Viminal
Mount, one of the seven hills, but near the Jewish suburb. In the
neighborhood of this house, as the legend relates, was afterwards
erected a monument, called “the Shepherd’s,”――a name which
serves to identify this important locality to the modern Romans to this
day. Being thus established in these lordly patrician quarters, the
poor Galilean fisherman might well have thought himself blessed, in
such a pleasant change from the uncomfortable lodgings with which
the royal Agrippa had lately accommodated him, and from which he
had made so willing an exit. But the legend does the faithful and
devoted apostle the justice, to represent him as by no means moved
by these luxurious circumstances, to the least forgetfulness of the
high commission which was to be followed through all sorts of self-
denial,――no less that which drew him from the soft and soul-
relaxing enjoyments of a patrician palace, than that which led him to
renounce the simple, hard-earned profits of a fisherman, on the
changeful sea of Gennesaret, or to calmly meet the threats, the
stripes, the chains, and the condemned cell, with which the enmity of
the Jewish magistrates had steadily striven to quench his fiery and
energetic spirit. He is described as steadily laboring in the cause of
the gospel among the Gentiles as well as the Jews, and with such
success during the whole of the first year of his stay, that in the
beginning of the following year he is said by papist writers to have
solemnly and formally founded the church of Rome. This
important fictitious event is dated with the most exact particularity, on
the fifteenth of February, in the forty-third year of Christ, and the third
year of the reign of the emperor Claudius. The empty, unmeaning
pomposity of this announcement is a sufficient evidence of its
fictitious character. According to the story itself, here Peter had been
preaching nearly a whole year at Rome; and if preaching, having a
regular congregation, of course, and performing the usual
accompaniments of preaching, as baptism, &c. Now there is not in
the whole apostolic history the least account, nor the shadow of a
hint, of any such ceremony as the founding of a church, distinct from
the mere gathering of an assembly of believing listeners, who
acknowledged their faith in Jesus by profession and by the
sacraments. The organization of this religious assembly might
indeed be made more perfect at one time than at another; as for
instance, a new church, which during an apostle’s stay with it and
preaching to it, had been abundantly well governed by the simple
guidance of his wise, fatherly care, would, on his departure, need
some more regular, permanent provision for its government, lest
among those who were all religious co-equals, there should arise
disputes which would require a regularly constituted authority to allay
them. The apostle might, therefore, in such advanced requirements
of the church, ordain elders, and so on; but such an appendix could
not, with the slightest regard to common sense or the rules of honest
interpretation of language, be said to constitute the founding of a
church. The very phrase of ordaining elders in a church, palpably
implies and requires the previous distinct, complete existence of the
church. In fact the entity of a church implies nothing more than a
regular assembly of believers, with an authorized ministry; and if
Peter had been preaching several months to the Jews of the trans-
Tiberine suburb, or to the Romans of the Viminal mount, there must
have been in one or both of those places, a church, to all intents,
purposes, definitions and etymologies of a church. So that for him,
almost a year after, to proceed to found a church in Rome, was the
most idle work of supererogation in the world. And all the pompous
statements of papist writers about any such formality, and all the
quotations that might be brought out of the fathers in its support,
from Clement downwards, could not relieve the assertion of one
particle of its palpable, self-evident absurdity. But the fable proceeds
in the account of this important movement, dating the apostolic reign
of Peter from this very occasion, as above fixed, and running over
various imaginary acts of his, during the tedious seven years for
which the story ties him down to this one spot. Among many other
unfounded matters, is specified the assertion, that from this city
during the first year of his episcopate, he wrote his first epistle, which
he addressed to the believers in Pontus, Galatia, Cappadocia, Asia
and Bithynia,――the countries which are enumerated as visited by
him in his fictitious tour. This opinion is grounded on the
circumstance of its being dated from Babylon, which several later
fathers understood as a term spiritually applied to Rome; but in the
proper place this notion will be fully discussed, and the true origin of
the epistle more satisfactorily given. Another important event in the
history of the scriptures,――the writing of the gospel of Mark,――is
also commonly connected with this part of Peter’s life, by the papist
historians; but this event, with an account of the nature of this
supposed connection, and the discussion of all points in this subject,
can be better shown in the life of that evangelist; and to that it is
therefore deferred. These matters and several others as little in
place, seem to be introduced into this part of Peter’s life, mainly for
the sake of giving him something particular to do, during his
somewhat tedious stay in Rome, where they make him remain seven
years after his first journey thither; and give him here the character,
office and title of bishop,――a piece of nomenclature perfectly
unscriptural and absurd, because no apostle, in the New Testament,
is ever called a bishop; but on the contrary, the office was evidently
created to provide a substitute for an apostle,――a person who
might perform the pastoral duties to the church, in the absence of its
apostolic founder, overseeing and managing all its affairs in his
stead, to report to him at his visitations, or in reply to his epistolary
charges. To call an apostle a bishop, therefore, implies the absurdity
of calling a superior officer by the title of his inferior,――as to call a
captain, lieutenant, or a general-in-chief, colonel, or even as to call a
bishop, deacon. During the life-time of the apostles, “bishop” was
only a secondary title, and it was not till the death of all those
commissioned by Christ, that this became the supreme officer in all
churches. But the papists not appreciating any difficulty of this kind,
go on crowning one absurdity with another, which claims, however,
the additional merit of being amusing in its folly. This is the minute
particularization of the shape, stuff, accoutrements and so on, of the
chair in which bishop Peter sat at Rome in his episcopal character.
This identical wooden chair in which his apostolical body was seated
when he was exerting the functions of his bishopric, is still, according
to the same high papal authorities which maintain the fact of his ever
having been bishop, preserved in the Basilica of the Vatican, at
Rome, and is even now, on certain high occasions, brought out from
its holy storehouse to bless with its presence the eyes of the adoring
people. This chair is kept covered with a linen veil, among the
various similar treasures of the Vatican, and has been eminent for
the vast numbers of great miracles wrought by its presence. As a
preliminary step, however, to a real faith in the efficacy of this old
piece of furniture, it is necessary that those who hear the stories
should believe that Peter was ever at Rome, to sit in this or any other
chair there. It is observed, however, in connection with this lumbering
article, in the papist histories, that on taking possession of this chair,
as bishop of Rome, Peter resigned the bishopric of Antioch,
committing that see to the charge of Euodius, it having been the
original diocese of this chief apostle,――a story about as true, as
that any apostle was ever bishop any where. The apostles were
missionaries, for the most part, preaching the word of God from
place to place, appointing bishops to govern and manage the
churches in their absence, and after their final departure, as their
successors and substitutes; but no apostle is, on any occasion
whatever, called a bishop in any part of the New Testament, or by
any early writer. The most important objection, however, to all this
absurd account of Peter, as bishop of Rome, is the fact uniformly
attested by those early fathers, who allude to his having ever visited
that city, that having founded the church there, he appointed Linus
the first bishop,――a statement in exact accordance with the view
here given of the office of a bishop, and of the mode in which the
apostles constituted that office in the churches founded and visited
by them.
The date of the foundation.――All this is announced with the most elaborate solemnity,
in all the older papist writers, because on this point of the foundation of the Roman church
by Peter, they were long in the habit of basing the whole right and title of the bishop of
Rome, as Peter’s successor, to the supremacy of the church universal. The great
authorities, quoted by them in support of this exact account of the whole affair, with all its
dates, even to the month and day, are the bulls of some of the popes, enforcing the
celebration of that day throughout all the churches under the Romish see, and the forms of
prayer in which this occasion is commemorated even to this day. Moreover, a particular
form is quoted from some of the old rituals of the church, not now in use, in which the
ancient mode of celebrating this event, in prayer and thanksgiving, is verbally given.
“Omnipotens sempiterne Deus, qui ineffabili sacramento, apostolo tuo Petro principatum
Romae urbis tribuisti, unde se evangelica veritas per tota mundi regna diffunderet: praesta
quaesumus, ut quod in orbem terrarum ejus praedicatione manavit, universitas Christiana
devotione sequatur.”――“Almighty, eternal God, who by an ineffable consecration, didst
give to thy apostle Peter the dominion of the city of Rome, that thence the gospel truth
might diffuse itself throughout all the kingdoms of the world: grant, we pray, that what has
flowed into the whole circuit of the earth by his preaching, all Christendom may devoutly
follow.”――A prayer so melodiously expressed, and in such beautiful Latin, that it is a great
pity it should have been a mere trick, to spread and perpetuate a downright, baseless lie,
which had no other object than the extension of the gloomy, soul-darkening tyranny of the
papal sway. Other forms of prayer, for private occasions, are also mentioned by Baronius,
as commemorating the foundation of the church of Rome by Peter; and all these, as well as
the former, being fixed for the fifteenth of February, as above quoted. Those records of
fables, also, the old Roman martyrologies, are cited for evidence. The later Latin fathers
add their testimony, and even the devout Augustin (sermons 15, 16, de sanct, &c.) is quoted
in support of it. Baronius gives all these evidences, (Annales, 45, § 1,) and goes on to
earn the cardinal’s hat, which finally rewarded his zealous efforts, by maintaining the unity