First-Sale Doctrine Lost Overseas 775
Max Hyre writes "In a 4-4 decision, the US Supreme court let
stand the Ninth Circuit's decision that
the First-Sale Doctrine (which says once you buy something, the maker
gets no say in what you do with it) only applies to goods
made in the US. That Omega watch you bought in Switzerland last
year? It's yours now—forever. You can't sell
it without Omega's permission."
First sale doctrine (Score:5, Insightful)
That is the most absurd and arbitrary distinction I've ever heard. A law of convenience if I ever heard of one. One step closer to stripping our rights in the name of international legal harmony.
Re:First sale doctrine (Score:5, Interesting)
Just wait till the chinese manufacturers start toying with one. Want to sell your used motherboard on craigslist? Sorry, no can do, this luxuriuously ASUS-branded product was sold to YOU and only YOU.
Considering the amount of stuff that gets produced abroad, I suspect this decision will soon be so full of holes and exceptions that it wont be an issue.
but what about the store / supplies that firest pa (Score:3)
but what about the store / supplies that first payed for it?
Re: (Score:3)
It should make your brain hurt. There are nine supreme court justices, why in the hell is only 8 splitting a ruling for?
It would seem to me that even if the case was started before a vacancy was created, that in the case of a tie, replacement would be required to review the facts including watching recordings of the pleadings and so on and break that tie. That's what happened in Ohio when Chief Justice Thomas Moyer passed away unexpectedly. The entire reason for an odd number on the court is to stop ties fr
Re: (Score:3)
In ties, the lower court's ruling is upheld IIRC. Kagan had to recuse.
Re:First sale doctrine (Score:4, Informative)
I don't think so; IIRC, it's not overturned but doesn't form binding precedent on the other circuits either. I think we'll see this one back in the Supreme Court at some point relatively soon.
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This is the kind of crap that congress ought to overturn in a heartbeat.
Unfortunately, the Republcrats and Demicans are so much both in the pocket of giant megacorporations that it's never going to happen. Once again, the two-party system means "bend over, consumers, here it comes again."
Re: (Score:3)
Name ONE THING in a Wal-Mart that's still made in America these days.
Money.
New/Used has nothing to do with it. (Score:5, Informative)
Omega sold that watch to a distributor.
The distributor sold it to Costco.
Somewhere along the line it was imported to the US. According to this ruling, any of the purchases/sales along the way from the OEM to your wrist can be forbidden if Omega says so.
But wait... (Score:3)
But wait, it gets better! This decision is based on a copyright claim over the tiny fucking logo on the back of the watch! Ridiculous barely begins to describe it.
Re: (Score:3)
It's Kelo v. New London [wikipedia.org], not New Haven.
You're going back a ways because Wickard v Filburn [wikipedia.org] was in 1942. Then the Dred Scott [wikipedia.org] slavery decision might be in the running for worst SCOTUS decisions.
Re:First sale doctrine (Score:5, Interesting)
Dred Scott may have been an immoral ruling, but it was also legally correct. Under the Union Constitution, each member state had freedom to decide if blacks were Citizens or Property. The justices did what they were supposed to do: Enforce the law as written. It was upto the Congress/States to change the law (via amendment) not the courts.
In contrast Wickard v. Filburn can not be justified in any context. It gave the Union government power to tell a man he was not allowed to grow food for his OWN consumption. That is not what the Supreme Law says, nor the original intent of the authors. ----- Intrastate commerce is the purview of the Member State - alone. In fact: Eating your own food isn't even commerce. Period.
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Under the Union Constitution, each member state had freedom to decide if blacks were Citizens or Property.
So every state gets the freedom to decide for themselves whether black people are people? What other conditions do states have the right to place on a person’s “person-hood”? Do we really need a constitutional amendment to clarify that yes, people are actually people?
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ou
Re:First sale doctrine (Score:5, Insightful)
No, but we certainly need a constitutional amendment to clarify that no, corporations are not actually people.
Re:First sale doctrine (Score:5, Insightful)
Under the Union Constitution, each member state had freedom to decide if blacks were Citizens or Property.
So every state gets the freedom to decide for themselves whether black people are people? What other conditions do states have the right to place on a person’s “person-hood”? Do we really need a constitutional amendment to clarify that yes, people are actually people?
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America...
Dude, wipe the foam off your chin and read some history. Yes, we did need an amendment. Yes, we have one. We did not have it at the time the Dred Scot decision was handed down.
Quoting the preamble means nothing. At the time it was written, blacks were not considered part of "We the People". Have you actually read any history, or don't they teach that at your high school any more?
Re: (Score:3)
At the time it was written, blacks were not considered part of "We the People".
They were wrong. That doesn’t mean the Constitution was wrong or needed to be changed, only that their interpretation of it was wrong and needed to be changed.
Re:First sale doctrine (Score:5, Informative)
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
It doesn't say it grants any rights or freedoms. It recognizes the freedom and rights of the people that already existed. Indeed to be even more clear the 9th amendment reads
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Where do these other rights come from if you think they come from the constitution? Clearly the founders of our country realized that the rights of men were not granted by governments, but came from some other higher power; they said so in the Declaration of Independence. Your views on rights being granted at whim by the government lead to a statist tyranny. Dread Scott was wrong on law and on the merits.
Read Twain. Twain will save you. (Score:5, Insightful)
If I had the power to destroy one fiendishly wrong-headed notion before I die, the following would be on the short list:
The justices did what they were supposed to do: Enforce the law as written.
Sigh. Have you seen the inscriptions over the Court? ""Equal Justice Under Law" coming, "Justice, the Guardian of Liberty" going. Maybe you've seen the statue of the blind-folded chick? Wanna take a guess what her name is?
The ultimate job of the Court is not just "to follow the rules." A third-grade hall monitor would be sufficient for that. The ultimate job of the Court is to find what is Just. It is the job of a god in the hands of flawed, fallible men. This is the reason why we are supposed to find our nine finest legal minds, our nine wisest elders.
In our finest legal traditions, we have found that the beginning of Justice, the bare minimum, is to keep the Strong from preying on the Weak, and that is why Dred Scott is such a famously reprehensible decision. We don't condemn the Sharia judges for stoning women to death because they're misapplying the rules. We condemn them for the evil they do by refusing to look beyond the rulebook. The Dred Scott Court cannot excuse themselves by crying "We were just following the rules" any more than other famously evil men can.
When we put guns in the hands of 18-year-old kids and tell them to go and kill in our name, we give them a warning. If the rules conflict with your conscience, if you do something you know is wrong by following the rules, you will one day be held accountable, and crying "I was just doing what the rules said I should," will not save you.
The job of the Court is to find Justice as best Humanity can in the year 2010. It is their black-letter job to stand in the gap and say "This rule, written by the Strong to steal from the Weak, is wrong and we will not abide it."
The Court is supposed to be the Conscience of our Nation, not nine bureaucrats bludgeoning people with the results of lobbies and politics.
The job of the Dred Scott Court was to keep men free. to be the "Guardians of Liberty" as inscribed, not to safeguard the pocketbooks of their kidnappers and rapists. The Dred Scott judges were not "Bad men, but good judges." They were evil men and bad judges as well.
Re:First sale doctrine (Score:5, Informative)
It doesn't matter if he grew twice the amount he could use in a year. The federal government simply does not have jurisdiction inside the state on matters that the US constitution doesn't grant it.
FDR probably said it best when he said
He said this in a speech about the Volstead Act which was printed in its entirety on March 3, 1930 by the New York Times. Of course this was two years before he became president and set the stage as well as the motion in works for the expansion of the interstate commerce clause in the US constitution.
You see, no one has to justify anything to something that never should have been allowed to happen. If the guy was participating in interstate commerce, then the feds get jurisdiction. He did not sell in interstate commerce so it was solely a state matter. If the state enacted the same laws and brought the same prosecution about, it never would have reached the supreme court unless something in the state constitution bared that type of law, seeing how US constitution specifically gives the states this jurisdiction within the state.
Re: (Score:3)
Well, it was only true in the sense that he could have done anything else including not participating in any activity and avoided buying wheat and that would have impacted trade too. However, there is nothing indicating that the trade impacted would have been interstate which is the problem with how true the argument is (pertaining to the ICC).
In other words, could the feds require you to use a certain type of toilet paper when your intending on doing the middle east thing and wipe with a sponge that you ca
Re:First sale doctrine (Score:5, Insightful)
Wickard v. Filburn is easily the worst decision the Supreme Court ever made. The twisted logic that they went through to conclude that by not participating in commerce he had effected commerce and was therefore subject to regulation is absurd.
Re:First sale doctrine (Score:5, Informative)
Re:First sale doctrine (Score:4, Insightful)
While that decision was very questionable and has some terrible consequences, I think it pales in comparison to the effect of the Filburn decision. The Filburn decision was a massive expansion in Federal power. Using the twisted logic of SCOTUS, Congress could basically justify any law they wanted to pass. Until United States v. Lopez, Congress had a largely limitless power under the Commerce Clause. Even using a liberal interpretation of the Commerce Clause, most federal laws in place today are probably not Constitutionally sound without the Filburn decision.
Re:First sale doctrine (Score:5, Insightful)
I can top it. In Santa Clara County v. Southern Pacific Railroad, 118 U.S. 394 (1886), the SCOTUS decided that corporations were people and thus entitled to 14th amendment protection.
Yes, Corporations, have all the benefits of being 'people', none of the drawbacks (such as finite life spans), and obey few of the laws that other 'people' must observe.
Corporations are free to merge with many other corporations, while polygamy is still illegal for 'people' in most states.
Corporations are allowed to have business practices such as "cutting off the competitor's air supply" while murder is still illegal for 'people'.
Corporations are allowed to be dissolved yet Suicide is illegal for 'people' to commit.
Corporations can have 'hostile takeovers' of other weaker corporations, but armed robbery, slavery, and blackmail are all still illegal for other categories of 'people'.
It would be pure anarchy and rule of the corrupt and powerful if real human 'people' were given the same rights as corporate entities have. Laws against things such as murder are in effect to help maintain order and security of society.
Feudalism, chaos and insecurity reign supreme among our most wealthiest 'people', the corporations; Some of us fight for less regulation and then wonder why the economic society is so chaotic and insecure...
Re: polygamy? I don't think so..... (Score:3)
Dude, that ain't polygamy... that's cannibalism.
(Actually it's usually more like organ theft, since so many "body" parts wind up getting discarded in the process.)
Re:First sale doctrine (Score:4, Insightful)
Corporations are free to merge with many other corporations, while polygamy is still illegal for 'people' in most states.
Polygamy is not a merger. Mergers turn multiple entities into one single thing. Polygamy still retains the individual people. The appropriate analogy would be cannibalism, and even that is wrong since mergers are usually mutually beneficial.
Corporations are allowed to have business practices such as "cutting off the competitor's air supply" while murder is still illegal for 'people'.
As long as their business practices are legal, it is nothing like murder. If the business practices are illegal, then there is no argument.
Corporations are allowed to be dissolved yet Suicide is illegal for 'people' to commit.
Corporate dissolution is not like suicide. Suicide destroys the value inherent in the person, whereas dissolution only destroys the company's name. The better analogy would be more like a divorce, where the parents split up the property and change their names. Again, that's all quite legal and isn't special treatment for corporations.
Corporations can have 'hostile takeovers' of other weaker corporations, but armed robbery, slavery, and blackmail are all still illegal for other categories of 'people'.
Robbery is theft. A hostile takeover isn't theft. It is a purchase of ownership. The two are not alike at all. As for slavery, a hostile takeover has nothing like it. Slavery doesn't apply because you aren't allowed to treat people like property. Company ownership is property and is traded every day. And blackmail doesn't even apply.
You also ignore that there are many laws that apply only to businesses and not to people. When was the last time you:
There are lots of problems with how we treat companies like people -- we agree on that. But your analogies don't add to that argument.
Re:First sale doctrine (Score:4, Informative)
The irony there is that they had actually decided no such thing, but a clerk was allowed to decide whether to add a note to the opinion that they hadn't decided it because the justices all believed that it was so. If he hadn't added that note, the decision would never have mentioned it, and it would have been left to later cases to decide it.
In reality, since it's not part of the decision, courts should actually now be deciding it all over again, but the Supreme Court, being answerable to nobody and at liberty to interpret the words in the Constitution as it pleases, seems to like it the way it is. At least, the 5 of them anointed by Republican Presidents do.
Re:First sale doctrine (Score:5, Informative)
Oh, jeez, and I wanted to moderate this story.
Well, not anymore I won't.
Here is a huge correction to your statement:
The Supreme Court has NEVER said that corporations were people!
It has never happened.
The sentence in question was added YEARS after the decision on that case was made, it was added by a clerk who did that on purpose in order to change the law all by himself.
http://www.youtube.com/watch?v=wHmGEkzhhfQ [youtube.com] - skip to minute 5 in the video and listen for a couple of minutes.
Re: (Score:3)
Isn't that the exact argument they use for the validity of the individual mandate in the new health care legislation?
Not buying health insurance (commerce) is participating in commerce and therefore it is mandatory that you purchase a specific thing?
Or, is it the fact that if you participate in *any* commerce then you can be subject to the individual mandate, and as long as you don't buy, sell, or trade anything you're OK?
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Yes, even Christian Scientists end up in the hospital. Tell one that they have cancer, and they just might decide to line up for chemo. They also arrive on ambulances. Family members might even dial 911 for them if they collapse. Or they might just be bleeding severely, and even Christian Scientist believe in bandages. They may, if conscious, refuse care when they get to the hospital. Even if they refuse care they might not be stable enough to be released and must be provided with a bed, food and hydra
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It has the side effect of sending more manufacturing (and publishing) overseas in order for the manufacturer to build in their own First Sale exemption.
Publish in London, (even if you Print in the US) and hang that little "Not for Resale" sticker on every book you print.
Package your game disks in Korea, and forbid resale outright.
This should be addressed in Congress, but unfortunately they are too busy stripping our other rights to worry about this issue.
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Like most of their silly rules, you can ignore this all you want, as long as you don't get caught.
Don't fall for that one. Accept the rule now thinking it's unenforceable, and you'll find yourself screwed when they find a way to enforce it.
Huh? (Score:3)
How are those last two sentences related to the rest of the summary?
Re: (Score:3)
"In a 4-4 decision, the U.S. Supreme court let stand the Ninth Circuit's decision..."
As I understand it, a 4-4 vote is the same as if the court never heard the case.
The end result is that the case only stands as precedent in the 9th Circuit.
Obviously, other juridictions will take this into account, but it is not binding upon them.
Re: (Score:3)
That is correct. A tie vote sets no precedent.
I looked up a little more on this case in particular. Costco bought the watches from a New York-based company that bought them from people that had bought them from authorized distributors. Omega contends that the initial purchaser was not authorized to resell or import them to the United States, so any subsequent sale was unauthorized and hence illegal. Omega brought suit on the basis of control of the Omega logo.
This troubles me not so much as an issue of
I wuz robbed! (Score:3)
That's Not What The Article Says (Score:5, Insightful)
There is a difference between "produced overseas" and "obtained overseas".
That's correct (per the 9th Circuit's decision) (Score:4, Insightful)
While the 9th Circuit's ruling [google.com] is unfortunate, it's not quite as bad as not being allowed to resell any items manufactured overseas. Whereas the 9th Circuit's decision applies to goods obtained overseas, goods legally imported into the United States would still be protected by the first-sale doctrine.
The decision still sucks, though. Not only do I think it's a perversion of copyright law to add a copyrighted logo to a watch in order to prevent importation that would otherwise be perfectly legitimate, but I also think it's a perversion of justice for copyright law to bar unauthorized importation of nonpiratical copies the way it currently does.
Re: (Score:3)
Re:That's Not What The Article Says (Score:5, Insightful)
Unfortunately, the idea that we can enjoy our own property peacefully and privately has been under attack for quite some time now.
I recently gave up trying to explain to some mentally challenged person here on Slashdot the very simple concept of property ownership and how once somebody sells you something they literally have no rights over it. Morally, ethically, etc... no rights.
It has been this way forever. In the Wild West if you sold some guy a horse and then fucked with him 6 weeks later about a saddle he did not buy from you, your ass would have been shot. Nobody would have had sympathy for you either. Society would have considered you insane.
Now, with DRM and the DMCA companies can try telling me that I don't own my own hardware and because some mental midgets don't want to get cheated on in video games, I should not have the right to fully own my own hardware. It's all magically different because we are talking about software some how?
According to the article this twisted, disgusting, morally offensive logic now applies to non-electronic hardware!?
This is the point where, as a people, globally, we just need to stand up and kill the top 3% of the people running the planet that have these stupid ideas. There is such a thing as too far and the last straw.
The First Sale Doctrine is not just some piece of random legal logic. It was a rebuke to the sociopathic executives and marketers that had the ridiculous idea they could try to keep controlling and monetizing their products after they sold them. It recognized something we all understand to be a fundamental human right, something sacrosanct, something to be rigorously defended.
Now we are allowing Sony and these Swiss douchebags to have permanent co-ownership of our property. How the heck are we losing these arguments? It's a no-brainer. My shit is my shit. Back off.
Re:That's Not What The Article Says (Score:4, Insightful)
I don't think we are talking about the same thing.
My arguments are very specifically about hardware. When I mention property ownership I am not referring to in any way, books, music, movies, etc.
Setting that aside for the moment, I completely recognize that IP does exist. In a meaningful sense, I have purchased "something". Under copyright law what I purchased was the right to enjoy the IP. Essentially, I purchased a legal entitlement. So you are wrong when you say I have no rights to do anything with it. In fact, I explicitly have the rights to do "something" with it and I believe that generally falls under "Peaceful Enjoyment".
As far as IP goes, my issue is that copyrights are misunderstood, and this is perverted and taken advantage of by corporations to establish rights they were never explicitly given, and rights that are outside of the spirit of IP in the first place. DRM is a prime example of taking rights well outside of the scope and intent of copyright law.
You mention Amazon specifically, but you are actually wrong. What they did is not legal. A copyright holder does not have the right to dissolve the contract and remove the legal entitlements that you purchased unilaterally. That is not just illegal, but again, outside of the scope and intent of copyright law.
The fact it is on a Kindle is not relevant. If Amazon sold me a physical book, could Amazon acting on the copyright holder's behalf enter my house and remove the book? Of course not. Then why is it correct, legally or otherwise, to enter my Kindle and remove the book from it? Money exchanged hands here. What Amazon did is to abridge my legal entitlement that I lawfully purchased. Even refunding my money does not make it legal. Otherwise Wal-Mart could leave $100 bucks on my kitchen table and take back my microwave.
Now of course I am certain there are very long legal contracts that you agree to when you activate the Kindle. That however, still does not make it legal. A contract cannot enforce just anything. It is my opinion that there is a strong foundation in the Amazon scandal for a class action lawsuit, and different than the 1984 mistake.
Keep in mind, that the courts do take into mind what the average consumer would reasonably understand. The whole interaction falls under the context of a sale, not a rental. A reasonable person would always conclude that you could read that book "forever" on their Kindle.
Bottom line is that Amazon is wrong on every level here. It's just that the government is bought and paid for at this point and won't go after them so it is up to the consumers to take a stand and start a class action lawsuit.
Re:That's Not What The Article Says (Score:4, Insightful)
No. If you bring it across the border you are importing it, and the government has total control over that, including taxing it, putting a tariff on it, banning it, quarantining it, impounding it, or declaring it a felony and locking you up for it.
The solution to this is to end borders. I'm not sure why anyone thinks that's a bad idea, either. The border between Missouri and Illinois is more real than the border between the U.S. and Canada. Yet the border between San Diego and Tijuana is wider than the border between Cupertino and Shenzen. The control seems arbitrary, and creates artificial boundary conditions that result in instability and turbulence.
No (Score:3)
"You're right, poor choice of words. It's about good made outside the US, not bought outside the US. Thanks for clarifying..."
Wrong. It's not about goods made outside the US, but about goods imported illegally into the US. Read the 9th Circuit's decision [google.com] if you don't yet understand the distinction.
Illegally as per copyright law (Score:5, Informative)
17 U.S.C. 602(a):
"Importation into the United States, without the authority of the owner of copyright under this title, of copies ... of a work that have been acquired outside the United States is an infringement of the exclusive right to distribute copies ... under section 106, actionable under section 501."
It sucks, but it's the law.
Comment removed (Score:4, Insightful)
Pirst fost (Score:3)
And you can't pass it on without my permission!
The stupidest thing is (Score:5, Insightful)
that they based it on copyright law: an Omega logo on the watch.
I thought it would be something like a signed contract, or buying from a foreign wholesaler, then importing to the US.
But the copyright on the logo?
Re:The stupidest thing is (Score:4, Insightful)
It's a common way to circumvent laws which attempt to encourage competition.
Let's consider three parties: Manufacturer, Retailer and Customer.
Broadly speaking, laws governing the contracts between Manufacturer, Retailer and Consumer generally say something like:
The contracts between "Manufacturer and Retailer" and "Retailer and Customer" are wholly separate, and Manufacturer cannot impose subsequent conditions on the contract between "Retailer and Customer". (In other words, Apple can't demand their retailers sell at a specified price).
Usual Solution: Manufacturer doesn't write anything into the contract along those lines, but have internal processes that ensure if the retailer does try and do this, subsequent orders from the retailer are mysteriously "delayed" and/or include a line in the contract giving Manufacturer the right to stop selling to Retailer at any time and for no reason whatsoever.
Retailer is free to source products from anywhere in the world (the "grey market"), they're not obliged to buy from local distributors
Solutions: Sure, but most warranty law deals with the contract between Retailer and Customer. The manufacturer is under no obligation to even offer a warranty - and they often won't with grey market products (which they identify by serial number). Which means that if the product breaks, that's the retailer's problem. Of course, this isn't terribly effective for a lot of things these days - Costco deal in sufficient quantities that they can live with this quite happily.
What else can the manufacturer do? Localise products: ensure that only products destined for the US market get the necessary sticky labels showing they meet safety standards (even if they're all identical) - but this doesn't work very well for designer watches and handbags.
Copyright - ah, that's a good one. The manufacturer obviously holds copyright over their name and various aspects of their products, which means nobody else can use it without their permission. Obviously, no manufacturer in their right mind is going to sue everyone who sells their products for copyright infringement - but they can sue people who they don't want selling their product.
Re:The stupidest thing is (Score:5, Informative)
The contracts between "Manufacturer and Retailer" and "Retailer and Customer" are wholly separate, and Manufacturer cannot impose subsequent conditions on the contract between "Retailer and Customer". (In other words, Apple can't demand their retailers sell at a specified price).
No longer true, as of 2007,
http://en.wikipedia.org/wiki/Leegin_Creative_Leather_Products,_Inc._v._PSKS,_Inc [wikipedia.org].
Retailer is free to source products from anywhere in the world (the "grey market"), they're not obliged to buy from local distributors
No longer true, as of 1998,
http://en.wikipedia.org/wiki/Quality_King_v._L'anza [wikipedia.org]
Re: (Score:3)
Now, that article is a stub and I didn't RTFD, but at first glance it looks like you're misinterpreting Quality King.
The Supreme Court found that the copyright holder could not prevent re-importation of materials it had authorized.
(emphasis mine)
Re: (Score:3)
Part of the copyright provision is that you are prevented from importing goods which are being sold first-hand in the US by a licensee or manufacturer. This has historically been applied to books, movies, and music. More recently to games. But thanks to this court ruling it now applies to anything with a copyrighted logo.
Mind you, last I checked logos and their like are the domain of trademarks. How they got a copyright for something that should, by all rights, be a trademark is something that seems to be m
Re: (Score:3)
The short answer to that is: Yes.
Copyright laws center around the right to create and *distribute* copyrighted works.
The idea behind the first-sale doctrine was that you could purchase a copy of a copyrighted work, and then do with it as you pleased as long as you did not make additional copies of it. I buy a book, I can now lend it, trade it, sell it, or even give it away. Without the first-sale doctrine, only the copyright holder can determine if that work can be distributed, even after its been sold.
Now,
Re: (Score:3)
What I am a little confused by is how copyright law has anything to do with this. Nobody is copying the logo, so how could a copyright be violated? Does copyright apply to activities that do not involve the creation of copies?
Let's try to do this logically. The copyright makes sure that only the copyright holder can produce the watch. I think that is quite reasonable, you can produce any watches you want, but not copies of these. Next, the copyright holder has the right to sell his goods under whatever conditions they want with very few exceptions. One exception is that in the USA, the copyright holder cannot tell you that you cannot sell the goods on. That is not some god-given right, that is a US-specific law which puts restri
Comment removed (Score:5, Informative)
Re: (Score:3)
Specifically due to the 'first sale' doctrine - the copyright holder controls distribution only through the first transaction, not through subsequent transactions. Since this ruling says that 'first sale' does not apply to goods procured outside the US, it means that the copyright holder does retain distribution control of the original copyrighted work.
It's an absolutely unforgivably terrible ruling, but that's what it says.
First Sales rights apply when you manage to bring the goods legally into the USA. And you can't do that against the will of the copyright holder. And you can't gain rights based on US law if you have to first break the law to get the goods into US territory. US first sale doctrine cannot possibly apply outside the USA. It doesn't apply until the point where the goods move to the USA with the permission of the copyright holder.
Re:The stupidest thing is (Score:4, Insightful)
Here's the odd thing - how old is the Omega logo?
The company was founded in 1848 [wikipedia.org], meaning that any kind of copyrights claim to that logo is expired.
Will this ever improve? (Score:5, Interesting)
It seems like the dominant trend in U.S. legislation is that if favors rich corporiations and individuals, at the cost of what seem like basic freedoms of common citizens.
Does anyone know, historically, whether all countries have this trend? And if so, historically, what things (if any) have lead to the reversa of these trends? I.e., does it require a reboot (i.e., full-blown revoluion), or is even that never enough?
Re: (Score:3)
Russia moved from totalitarianism to freedom relatively blood- and revolution-free.
Here in the US we could solve the problem by amending the Constitution to strike the copyright clause. Or else change the words from an indefinite length to a fixed length (say 14 years). I don't get paid for work I did two decades ago, and I don't think any other professional should either.
Good luck (Score:5, Interesting)
Re:Good luck (Score:5, Insightful)
"I don't get paid for work I did two decades ago. Why should you?"
"Um... uh... well..."
"That's what I thought. There is no justifiable reason to extend copyright beyond about 10 years. There is no reason why you should get an annual payment for the rest of your life for work you did when you were age 20 or 30. *I* don't get that privilege of lifelong income. I work. I get paid. I might get a bonus at the end-of-the-year or decade for work well done, and that's the end of it. The same should be true for you."
Re:Good luck (Score:5, Interesting)
A possible response: "Because work that I did two decades ago is still valued and in demand, while nobody cares what you did yesterday."
Re:Good luck (Score:5, Insightful)
Really? What about house builders, infrastructure?
Should the people who built a highway get money from every user for the rest of their lives?
Should the painter who did the exterior of my house get a say on allowing me to repaint it in a different color?
Re:Good luck (Score:5, Interesting)
You can!
Here's what you do - build a house on your own dime, then rent it to people. You can get income for the rest of your life, for doing nothing!
Now, here's the rub: When you do something like that, you usually have to pay a tax to the government on an annual basis based on the total value of the property - just a couple percent. Maybe that's what we need for copyright?
Re: (Score:3)
If you paid a civil engineer to design your highway, do you think he should have any right to keep demanding a percentage of the money you make from those tolls because he's the one that came up with the design?
Well he can either take the riskier - but potentially more profitable - option of a stake in the company and therefore an entitlement to it's future profits. Or he can take a lump sum payment and his work is the property of the company.
The music in it is something completely separate and it is interesting to ask why it is that the composer doesn't get paid once on delivery of the new song, the artists once for the recording session, and so on.
The real question is who would pay for that? I mean goods (and their development costs) are paid for by people who want them and thus purchase them.
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A possible response to that: “If people will only take your work if it is free, what does that tell you about its value or demand?”
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*I* don't get that privilege of lifelong income. I work. I get paid.
Many musicians don't. Get paid, that is. Or get bonuses. They make stuff and hope that people will buy it, and that the tiny bit of income they make off of this will add up as people discover their work over the years.
I'd be willing to support a model where musicians get good salaries and bonuses, then we all make their recordings public domain --- sort of like government-funded academic research. But I'm not sure who's going to pay f
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I think the best argument I've heard so far (granted, it's my own argument, so I'm inclined to like it, but still ...) is "cultural heritage". My generation doesn't have any. Nor does my parents' generation. My great grandfathers and -mothers were born between 1908 and 1920, and they barely have any.
You know all these great authors, who have enriched our lives? Not part of our heritage. At all. Well, a few of them are. When did they die? Add 70 years and see if that number is lower than the current year. If
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The Internet changes the rules, and those who refuse to play by those new rules are facing a long, bitter, losing fight. From that pers
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Yeah, good luck with that. Authors, songwriters, and other artists in the current system generally either end up being very rich or penniless.
There is no inherent right as an artist of any kind to have your works protected. The copyright system has become so pervasive that we see it as an industry, rather than as what it is intended for.
What it was intended for was to _enable_ works to enter the public domain. Honestly, it was. By allowing limited copyright, you encouraged holders to publicly publish as
Re:Will this ever improve? (Score:5, Insightful)
Yep, pretty much. We've moved from a manufacturing and research economy to a purely intellectual property economy. All our wealth is going to be tied up in imaginary pieces of paper that say that people have to pay us for using computer software, or by building windshield wipers a particular way, making pharmaceuticals with a particular active ingredient, or for listening to music or watching movies (ooh, a toll on "culture"). We even get money if they record and distribute content themselves using patented h.264 video codecs. So all we need to do is just sit back and collect the money, backed by the threat of economic or conventional warfare if they don't pay up. Maybe once in a while we need to renew or trivially update our patents or copyrights to keep anyone from innovating around them, thus maintaining the status quo.
Not much different from the way things were in the colonial era, where we sent a lot of profits back to the empire, and you needed official licenses from the king to operate trade routes or the navy would sink you. Heck, they even still unabashedly call some of these payments "royalties" today. Fortunately, we know how this turned out, so we can probably count on history repeating itself eventually.
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My apologies to those in this thread who are now losing the modpoints I'd given them, but I've seen this misconception spread too often and it has to be cleared up.
Fascism has nothing to do with the status of corporations or their perceived (or real) control over a nation. Fascism is a state-focused political system that places the interests of the state over those of any individuals or groups of individuals in the nation. Private property exists only so long as the state doesn't need it; contracts between
So Almost Nothing? (Score:3, Interesting)
only applies to goods made in the US.
So nothing then? Why pick a Swiss watch? Why not go with something like a Nike football. Good ole' American Nike making American football, right? Wrong [answers.com]. I bet all the clothes on me right now came from Vietnam or Cambodia or Thailand or some other Asian fabric powerhouse. Donating them to a Goodwill store to be resold would be ... illegal?
Furthermore the article notes CostCo but what about Wal-Mart and Target. They resell these same articles of clothing as a middleman. Do they have some special contract protecting them from the largest copyright lawsuit to ever hit the retail industry?
This is so bizarre and just another indication of how copyright is seriously broken. If I understand the article, it's just because there's an Omega emblem on the watch? So since CostCo now owns that watch, they can chip the logo off and sell it for whatever price they want? This makes about as much logical sense as smearing my face with my own feces before a job interview.
Is there any lawyer out there with some background in this that might tell me what implications this holds for something like clothing being sold at Wal-Mart on the cheap? Or does it need to have an MSRP on it? How does this apply to software developed here but pressed overseas? So many questions I could dream up to ask about this new court decision.
Bad Summary (Score:5, Informative)
The summary is written is misleading. The distinction made by the Ninth Circuit depends both on where an item was made as well as where it was sold. If you legally purchase a foreign made product in the US (ie from an authorized reseller like Walmart), then the right of first sale still applies. However, you can't buy foreign products in a foreign country and then resell them in the US without permission.
I still think it's a bad decision but the summary makes it out to be even worse.
Re:Bad Summary (Score:4, Insightful)
Under other provisions of copyright law, importing a copy of a protected work amounts to an infringement of the copyright if the copy was made abroad and brought back into the U.S. without permission.
Emphasis mine. What is "permission?"
So what I'm asking is whether or not Wal-Mart signs agreements with Vietnamese companies that say they can bring them into the United States and did CostCo, like, drop the ball on that one? Did they smuggle them in their coat over to the US? I assume they passed customs from both countries, what level is this illegal on?
How on Earth would this deal go down any differently for Timex watches made in China sold in CostCo? Are you telling me that CostCo was making money by purchasing Omega watches at MSRP in Switzerland and then reselling them below MSRP in the United States? I'm not an economist but something sounds really strange in that case. This is what the SCOTUS Blog said:
The case involved a company, Omega S.A., that makes watches in Switzerland and sells them around the world through authorized distributors and retailers. Costco, a membership warehouse club that sells brand-name merchandise to members at prices lower than its competitors, had bought Omega's Seamaster watch abroad and re-sold it in the U.S. Costco's price was $1,299, about a third less than Omega's suggested retail price of $1,999.
Does anyone else think this sounds like Omega struck a deal selling thousands of watches to CostCo only to find out that when people saw them for $1300 they perceived a devaluation of the one they bought at the mall for two large? I mean, it sounds like Omega is trying to force CostCo to maintain a minimum profit margin. That's not capitalism. It's becoming more and more clear that copyright and capitalism are mutually exclusive concepts. And I'm guessing that this is some bizarre abuse of copyright that any foreign manufacturer could hold over the largest retailer/reseller's head. Evidently it happens on a smaller basis [amazon.com] with Omega.
Re:Bad Summary (Score:5, Informative)
Basically, the decision said that a company can enforce regional pricing and distribution structures through a (broad) interpretation of copyright laws.
Omega has various pricing depending on region. Overseas they were cheap and expensive in the US. CostCo bought them from a low priced region overseas and imported them to the USA. The ruling was they couldnt do that as it violated the copyright, despite the fact they were legally purchased overseas.
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I hope to hell they clarify this and limit its scope to importing large quantities and doing this for purposes of commerce. Because, this would mean that you can't sell anything you own without "permission" of the copyright owner.
I mean, if I personally bought an Omega watch (*drool*), I hope to hell I still retain right of first sale and could sell it if I so chose.
Essentially if this applies to
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As long as businesses are allowed to outsource to cheaper countries, not allowing us to buy at prices in cheaper countries is a "dick move".
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So... a retailer purchasing a product from a (foreign) distributor/manufacturer is treated differently from an individual buying from a retailer?
Yeah, but the difference isn't just between retailers and individuals, it is between authorized distributors and everyone else.
But an "authorized distributor" isn't a legal concept, outside of making sure that there weren't any contract violations between two private entities. Now I have to figure out whether or not a retailer is on a list maintained by a distributor (with no legal agreement that the list be made public, since its just a private contract summary) to know whether or not I have ownership of an item I purchase from said retailer?
That's just crazy.
Its fine if the distributor doesn't want to honor a warranty - that's a
SCOTUS is losing it. (Score:3, Interesting)
So now, foreign companies have vastly greater control of their products in your home than American companies do.
That is not exactly a decision that is in the best interest of the American people.
Re:SCOTUS is losing it. (Score:4, Informative)
Only those goods that were not only made but also purchased in a foreign country, and which were purchased subject to an agreement which, if the purchase was made in the US, would be unenforceable because the violate the doctrine of first sale.
Essentially, this means certain commercial aspects of US copyright law don't apply to sales of goods where the copyright isn't a US copyright and the sale agreement isn't executed within the jurisdiction of the U.S.
This probably doesn't affect any foreign-made products in most peoples homes; the issue really mostly affects goods bought abroad for resale.
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You and the article are missing the point of the ruling. Manufacturers price discriminate by selling the products at higher prices to countries that can afford a higher price. For instance, watches sold in America cost more than watches sold in Paraguay. The question is whether or not the first sale doctrine can stop someone from buying cheaper watches in Paraguay then selling them into the United States. The Ninth Circuit said that it does. I disagree, but it's not as retarded as giving foreign companies t
No precedential force (Score:5, Informative)
The headline is overstating things a lot. The First-Sale Doctrine isn't lost overseas. Since this is a 4-4 tie decision by the Supreme Court, only the lower court decision is upheld. There is no precedential force behind the decision at all. Thus, the only thing that can be said about this is that Costco loses this particular instance, but the right of First-Sale overseas remains in effect since this decision isn't useful for any subsequent precedent.
http://www.slate.com/id/2109077/ [slate.com] --- A good analysis of what happens when a tied decision occurs.
Re:No precedential force (Score:5, Informative)
For the curious, here's the actual decision.
http://www.supremecourt.gov/opinions/10pdf/08-1423.pdf [supremecourt.gov]
It's two sentences long and simply states:
"PER CURIAM
The judgment is affirmed by an equally divided Court.
JUSTICE KAGAN took no part in the consideration or decision of this case."
Re:No precedential force (Score:5, Informative)
And here is the original 9th circuit ruling [google.com] which does have precedent in that circuit, and will likely be referenced in other circuits.
Legitimate problem with grey market (Score:4, Insightful)
The problem with allowing third-party imports to be sold is that consumers will buy the items, expecting the manufacturer to support them (providing warranty service at a minimum). If the product in question is not sold directly domestically, then the manufacturer may not be prepared for the support. Further, the product may have been sold in a country where the cost and level of support is different.
The solution is to require that any imports not authorized by the manufacturer must be clearly advertised as not supported by the manufacturer, with all service provided by the importer.
Re:Legitimate problem with grey market (Score:5, Informative)
Costco ALWAYS clearly labeled grey market products. They back them with their 100% satisfaction guarantee. I bought a Denon Receiver from them and they were very clear that they were not an authorized retailer and that Denon would not service the product or warranty. I was a fully informed consumer when I purchased it.
Now the U.S. will be no better than the EU (Score:3)
Why 4-4? Because Kagan recused due to S.G. (Score:5, Interesting)
Why? Partly because she was the Solicitor General [npr.org]:
SHAPIRO: How common is it for a new justice to have to recuse from the number of cases that Kagan is recusing herself from?
TOTENBERG: Well, it's not common because, at least more recently, we haven't had top Justice Department officials migrating to the court. But it's happened many times in our history. Justice Thurgood Marshall, who was solicitor general, for example, recused himself from about half the cases the court heard in his first year. But that high number was largely because he remained SG until he was confirmed.
And Kagan didn't do that. She stopped being SG right after her nomination. So, this high number of recusals, I think, is front loaded. She'll probably be recused from about a third of the docket this year, and then next year her recusals will plummet to zero or something close to that.
One interesting thing, Ari, is that there are a number of cases that she's reused herself from that she really had nothing to do with. And these are cases that generally involve commercial disputes. And the Justice Department filed a notice that it was taking no position, and these are just routine evaluations. They're done by lower-level lawyers but she signed the filing, so she's taking herself out of those cases.
SHAPIRO: And when she's recused and there are eight justices on the Supreme Court, what happens then?
TOTENBERG: Well, the case goes forward, as usual. And if there's a four-to-four tie, the lower court opinion is automatically affirmed without the Supreme Court issued any opinion, then presumably the issue can come up in another case, later, where Kagan can participate.
Private property rights are essential (Score:4, Interesting)
PJ O'Rourke wrote a great book on politics and economics called Eat The Rich. In his book, he examines a number of different political systems and concludes that so long as there is rule of law and private property rights, almost any political system can function. This is true of capitalism, socialism, communism, and even fascism. Take away either of those two components -- rule of law or private property rights -- and you've got trouble.
This story is just another example of our disappearing private property rights. The basic test of ownership is disposal. If you have the right to dispose of an item in some way, through sale, donation, alteration, or destruction (safely, of course), then you own it. If you are prohibited from doing any of these things, then it is not really yours.
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For a while, yes. But Kagan is only 50 years old. From a political standpoint, they may lose some cases that they didn't have to in the next few years, but they've gained somebody who will be in their court (heh heh) for decades.
Not making a value judgment on that; it's just political hardball same on both sides. I wish it were different. I would also like a pony.
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yes, because CostCo will just eat the copyright infringement penalties and defy court orders so they can keep reselling those watchhes.
they aren't worried about you, only grey importers (Score:3)
Nobody is going to take you through the courts for selling your grandfather's Rolex. But if you form a watch company and get a sweet deal on 5000 Rolexes through some intermediary company in Asia, and they offer you another 5000 when you've sold the first lot, then you might get a court summons. These are the people the orginal manufacturers are upset about. They want their expensive looking shops in the premier end of the mall selling their products at a high mark up, and they get upset when a bulk distrib
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>>>the point is the same
No not the same. The difference is I did not sign a contract and pledge a promise to not convert the Omega watch to cash. No company nor government has any right to stop me from doing so. IN Contrast, the soldier DID sign a contract to keep quiet about classified documents, and he broke that sacred pledge. Hence breach-of-contract. Hence prosecutable.
So you see? The analogy between me and the soldier does not fit. I'm a freeman and have certain inalienable rights, inc
Re:What does this mean? (Score:5, Insightful)
Why are only corporations allowed to take advantage of the 'global economy' (outsourcing), but customers should be prevented from purchasing goods where they are cheapest?
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Effectively supporting collusion and price fixing so that people can sell their products at an inflated rate in the US and other Western countries while selling them for what they really cost elsewhere.
Brilliant!! Let the gouging begin!
No difference (Score:3)
To the law, there's no difference between selling one watch on Craig's list or selling thousands at Costco. The only difference is how likely you are to get caught.
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The problem is, this whole "gray" market thing.
If you purchase the goods legally in the country you bought them in, there's no gray. If you take property you own and move it from one country to another, there's no gray. If you sell property you own, there's no gray either.
So, how is legally buying a product in one place, and selling it in another "gray" -- because copyright law says so? So we can gua
Re:Implications are a bit more subtle (Score:4, Insightful)
Think how inconvenient it would be for companies if they prices their goods differently in different countries and then someone circumvents that by moving the goods from a cheap market back into an expensive one.
I should give a fuck why?
If you actually believe in free markets, strong property rights, and capitalism you should wholly support such reimportation. Hell, even if you don't, you should support it, unless you're some sort of fascist oligarchist.
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Free Trade is not for everyone!