Supreme Court To Decide Whether Or Not You Own What You Own 543
A user writes "The Supreme Court is set to decide, in the case of Kirtsaeng v. John Wiley & Sons, whether or not First Sale Doctrine applies to products made with parts sourced from outside the United States. If the Supreme Court upholds an appellate ruling, it would mean that the IP holders of anything you own that has been made in China, Japan or Europe, for example, would have to give you permission to sell it. Your old used CDs, cell phone, books, or that Ford truck with foreign parts? It may not be yours to sell unless you get explicit permission and presumably pay royalties. 'It would be absurd to say anything manufactured abroad can't be bought or sold here,' said Marvin Ammori, a First Amendment lawyer and Schwartz Fellow at the New American Foundation who specializes in technology issues."
Let them do it. (Score:4, Funny)
It will provide a huge boost to US manufacturing jobs!
Re:Let them do it. (Score:5, Insightful)
Re:Let them do it. (Score:5, Insightful)
If, for example, a car has zero resale value by law, it will immediately be worth a lot less to a buyer than a similar all American made car.
The Supremes would have to have several extra holes in their heads to even think about making such a ruling. They would destroy many billions of dollars in value with a single bang of the gavel. They would have a dreadful time sorting out the issue of anything bought prior to the ruling where the decision was in part or in full based on resale, particularly if the explicit purpose was resale.
They would also wipe out major auction sites, any second hand store, all used car lots, and many retail operations. Destroying the entire underpinning of ownership in law is not appropriate for even the Supreme Court.
Re:Let them do it. (Score:5, Insightful)
Except that any sane company is going to go out of their way to manufacture as much as possible outside the U.S. so that they get to decide whether or not you can sell it. If I'm an electronics company, and I can build the phones I'm going to sell in America, in either America or China, and you need the manufacturer's permission to sell something not bult in America, why would I build in the U.S.? If I build in China, I can force my customers to buy new phones because they aren't allowed to buy used ones.
Re:Let them do it. (Score:5, Informative)
This will be a boon to US "companies" ... You know the "designed in California" "built in China" guys....
This is about books... So the company wants its USA copyright to apply everywhere, but sell the same book for $20 outside the US and for $100 inside the US. Basically they want "shrink wrap" license on books similar to region coding on DVDs.
Re:Let them do it. (Score:4, Funny)
Yes and no (Score:4, Insightful)
I'm davidwr but I don't want to undo my moderation of the parent post. It was "-1 - troll" when I saw it, +1 insightful'd it, and by that time it was "2 - funny."
If the Supremes rule broadly that the First Sale doctrine doesn't apply to items which contain foreign parts, you'll see a disruption in the marketplace, but it won't be pretty.
SOME customers, notably some business customers who depend on the ability to re-sell, some governments looking for any excuse to "buy American," and a small percentage of individuals will insist on buying American when possible. SOME retailers will specialize in selling only products that their customers are "free to resell" but it won't become widespread, general practice.
Here's why:
Most large companies that control "IP" - studios, large software houses, etc., will make sure that their mainline products qualify as "made in part overseas." Yes, they may sell a "made in the USA" or "free to resell" version that has minor differences and huge up-front increased price so they can qualify to sell to governments and companies that insist on the "right to resell" but their retail products will prohibit reselling. Because they are willing to turn down business from SOME customers to protect their future sales from the resale market, they will essentially "force" most of America to either concede to the reality that they can't re-sell their CDs, or simply do without.
My hope is that the Court will do the opposite and make it clear that people have the right to re-sell what they've already paid for.
Worse (Score:5, Interesting)
Even worse, many items are made from petroleum. Just think of plastics and everything made from plastic or incorporating bits of plastic (I see some vinyl in that there car, sonny, and the tires are made of rubber). Now some of the petroleum used in making those plastics and related synthetics might have come from wells in the USA, but some might not and it tends to get blended during or after refining. The provenance of such intermediate materials is not tracked.
So we have another question: how much transformation of a foreign-sourced raw material or intermediate material derived therefrom would be needed to escape the consequences of this putative ruling? Would shaping foreign wood into furniture be sufficient? What about polymerizing a foreign-sourced material (making an intermediate of plastic or ceramic or rubber)? Even supposing a strict boundary could be defined for the amount of processing or transformation required, it would just lead to the creation and feeding of loophole-finding (or making) industries.
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ONLY CORPORATIONS ARE PERSONS (Score:5, Insightful)
ONLY corporations have PROPERTY RIGHT.
Signed, United States, Inc.
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Might be incentive to buy American? (Score:4, Insightful)
Re:Might be incentive to buy American? (Score:5, Insightful)
That would certainly deter me from buying products that were manufactured or contained parts that were manufactured abroad.
But it would incentivize companies to build stuff abroad. Once they've imported it they can voluntarily give purchasers control over it anyway if that helps build sales, but it's something they can turn on and off to their own benefit. If they build in the US then they don't have the option. So why build in the US?
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Re:Might be incentive to buy American? (Score:5, Interesting)
Re:Might be incentive to buy American? (Score:5, Insightful)
Re:Might be incentive to buy American? (Score:4, Insightful)
Re:Might be incentive to buy American? (Score:5, Interesting)
I actually saw this happen in a nearby city. There was an area predominantly populated by fixed income, older people who owned their own homes mortgage free. The city decided that they wanted to build a commercial area there. Cities hate residents, because residents cost them money, while commerce pays them money, so it is easy to understand why they would want to move commercial in. They ended up making lowball offers on hundreds of houses. Some people took them, some didn't. The city would also let you move your house, but they would only approve the moving permit from the city's chosen contractor, which was expensive. The longer people stayed, the lower the offers got, until finally some people had their house condemned out from under them for refusing to sell. Those who did move had to go from having no mortgage to having a mortgage on a more expensive house because most of these houses were in the $50k range and houses nearby that were available cost more like $75k, and they were only compensated about $35k for their houses. The city determined that was fair market rate because they were just going to tear the house down anyway, and nobody else would offer anywhere near $35k for a house that was going to be torn down.
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Re:Might be incentive to buy American? (Score:5, Interesting)
Justice Thomas has stated he does not feel that he is listening when he is thinking about what to say, so he does not ask questions. It is flame bait to claim that he is sleeping
Really? One of the finest legal minds in the country can't think on his feet? When I listen I come up with questions automatically. The very act of processing the information coming in produces questions. I'd go as far as to say that if you don't have questions after a talk, whether it's an argument, a speech, or a lecture, you weren't really listening.
Re:Might be incentive to buy American? (Score:4, Insightful)
He's saying that when you "come up with questions automatically", that detracts from your cognitive listening skills because at least part of your thought is directed to the question and not what's being said. I have to agree with him. No matter how good you think you are, when you start thinking of questions while listening to something you take away some attention that could have otherwise been spent on listening and understanding.
Most people who've taught or given presentations would attest that people who think they can talk (or think of questions) and listen at the same time are deluding themselves.
Re:Might be incentive to buy American? (Score:4, Insightful)
Yes, it would be literally killing the goose that lays the golden eggs. You move all manufacturing offshore, lowering costs somewhat, but not as much as you think. Meanwhile, you lay off all of your American workers, you bring in all of these goods that are slightly cheaper than if they had been made in the USA, and... nobody buys them except for the rich executives who profited from closing down American plants. Except, there are not enough rich executives to buy enough of the product, so the company goes bankrupt and people in China get laid off.
Re:Might be incentive to buy American? (Score:5, Insightful)
That would certainly deter me from buying products that were manufactured or contained parts that were manufactured abroad.
Name one such product.
Here's list of unknown accuracy (Score:3, Informative)
Here is a website that tracks what products are still made in the US of A [stillmadeinusa.com]
They seem to be pretty good about differentiating between actually made and assembled. Now as far as raw materials are concerned or sub-assemblies, I don't know.
Re:Here's list of unknown accuracy (Score:5, Insightful)
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I believe there is one product that is no longer made in the USA at all.
Resistance wire. You know, the wire that is made specifically for is resistance values? We used to have 1 manufacturer in the US (I think) but it closed in the 90s. Now I think most of it is manufactured in Sweden and Germany.
The generalize what that means... anything that has a heating element was constructed from parts made outside the US.
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Similar for most strong magnets:
http://www.manufacturingnews.com/news/09/0930/magnets.html [manufacturingnews.com]
In practice, this means that pretty much anything with a speaker is going to be partially made in China.
Re:Might be incentive to buy American? (Score:5, Funny)
So the the best example of something wholly made 'made in America' is a weapon.
Well done.
Re:Might be incentive to buy American? (Score:5, Informative)
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Exactly. When was the last time you heard of someone being murdered by a flintlock, or better yet a halbard or pike or even a crossbow? Those are all still weapons, even if they're totally obsolete and no one uses them any more, and most surviving examples are in museums.
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Re:Might be incentive to buy American? (Score:5, Insightful)
But since we already have right of first sale, the presumption has always been that it is our property, and that we are free to sell it.
This would literally change it so that everything is essentially licensed, and you don't own it.
And, I'm sorry, but given what people pay for their cars, the idea that we would need permission to sell it (or almost anything else) is kind of scary.
This kind of thing is truly getting ridiculous, and IP law will have fully jumped the shark.
Re:Might be incentive to buy American? (Score:4, Insightful)
Re:Might be incentive to buy American? (Score:5, Interesting)
Re:Might be incentive to buy American? (Score:5, Insightful)
This would be the kind of court decision that would have Congress write an amendment codifying right of first sale, and having the House get somewhere around 418* "Yea" votes, followed by about 95* in the Senate. Obama would sign it, and roughy 50 states would ratify it.
Not only would it be the fasted amendment ever ratified, but it would be a clear message that the Supreme Court can go to hell if they're going to fuck around with the way commerce has worked in this country since before it was a country.
* there's always a few cranks that vote against the obvious flow, just to get their name in the press with a few quotes. They just want to grandstand, and nobody pays attention to them anyway.
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Think of how many auto dealers alone would scream at this. No used car sales. In fact, I can right off the top of my head just keep coming up with example after example of businesses that sell used equipment. Ebay, for instance, would simply shut down. And they have pretty deep pockets last I checked.
And then there's the absurd part of it. That we actually are limiting ourselves as a nation based upon the IP and copyrights of other nations like China that ignore our same laws. We might as well just g
Re:Might be incentive to buy American? (Score:5, Insightful)
Might be incentive to buy Black Market (Score:4, Informative)
This is messing with the capitalistic economic model people will still want those goods, and people will be willing to sell them, but they will do it over the black market. Because the legit way is too costly.
The black market isn't always for shady product, but products that you cannot obtain legally.
For example in New York the biggest Black Market Activity is in unpasteurized milk. Why because there is a good number of "organic" lovers who would rather have their milk unprocessed and they say it tastes better, and is better for you, and by New York Law milk can only be sold pasteurized. Hence black market activity.
So saying you cannot resell a product and people wants it. It will be done under the table.
Now the problem with black market is the buyer and seller loose legal protection. So the seller can rip you off and you have no legal recourse. Or the buyer can do something else to you and in order to get the guy in trouble you will need to admit to breaking the law. This is a problem with prostitution because it is illegal if the women are mistreated they do not have many options for them.
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Please list some citations.
I am unwilling to believe that unpasteurized milk is a bigger black market activity than illegal drug sales without some evidence.
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Re:Might be incentive to buy American? (Score:5, Insightful)
This comment represents a really deep misunderstanding of the question before the court, which seems to be reflected by most of the comments on this thread, unfortunately. Sorry to pick on you, but you're early in the list.
The misunderstanding is that this law specifically applies to products imported without the permission of the manufacturer. And it only applies to copyright, because copyright is where the doctrine of first sale applies. It doesn't, for instance, apply to patents, nor even to trademarks. The case turns specifically on the question of whether the doctrine of first sale applies to a product purchased in a foreign country, imported into the U.S. without the permission of the copyright holder, and then sold here in the U.S.
So unfortunately this will not serve to boost American manufacturers, unless they can propagandize people into believing something that isn't true. But it will serve to further restrict grey markets, allowing copyright holders to continue charging different prices to rich Americans than they do to rich Europeans.
Re:Might be incentive to buy American? (Score:4, Insightful)
There are actually two opposing rulings on this case—if you read the summary of the question before the court [supremecourt.gov] from their web site, you can get a clear picture. But my point is that it doesn't apply to patents. And you should read the appellate court decision more carefully—it explicitly refers to "Importation into the United States, without the authority of the owner of copyright under this title..." IOW, not what you said.
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Oh, as for the bit on p. 218, the specific case they are talking about is where the copyright holder has granted publication rights in the U.S. to one company, and in Great Britain to another, and this second company attempts to import works printed in Great Britain into the U.S. In this case, they would not have permission from the copyright holder to do so, and hence the sale of these products in the U.S. would not be allowed.
Whether it should be possible to prevent such sales is certainly a question th
Building locally (Score:4, Informative)
Otherwise, you would not be able to afford that "all American made" vehicle.
There is no such animal. Some vehicles are majority sourced in the US but no vehicle is sourced exclusively from one country.
That's right. The simple fact is that it costs more to build a car in the U.S. than it does to build, and deliver, a car made in Japan or Korea.
That is not true at all. A lot of cars are made in the US precisely because it is too expensive to build them overseas. Cost of labor is not much cheaper in Japan than it is in the US. Korea isn't especially cheap when it comes to labor either. Much auto assembly can be automated with sufficient volume so the labor differential is further reduced. You also have to account for where the parts for the vehicle are made - the number of auto parts made in the US is huge and shipping them elsewhere would be expensive. Furthermore you have to account for exchange rates. The Yen is quite strong at the moment which makes exporting from Japan expensive. Honda and Toyota build a LOT of cars in the US precisely because it is cheaper to build them in the US.
That is virtually every electronic device. (Score:5, Insightful)
Re:That is virtually every electronic device. (Score:5, Informative)
Please remember, if the ruling is uphold, it works only for the imaginary parts of the product (e.g. trademarks, copyrights, patents) and not the physical ones. As long as you don't have patented screws or copyrighted sheet metal in the object you sell, the sale might be ok.
Re: electronics? try damn near everything..... (Score:5, Insightful)
- Pawn shops out of business
- 'legit' used car market evaporates or used car prices skyrocket to nearly the price of new (with all of the extra money going to the IP trolls)
- Trade stores (Gamestop, Trade It, etc) out of business
- Thousands upon thousands of jobs lost
- Billions of dollars in revenues (both tax and trade) disappear
- If they make it retroactive, lawsuits and repossession of property en masse
- If the law is applied evenly, the real estate market gets even more thoroughly screwed up than it already is (you sure that lumber and drywall is US produced? what about the wiring? light switches? ceiling fans? refrigerator? glass? vinyl/aluminum siding sheets? PVC pipe? faucets? the list goes on.....)
That's crazy talk. (Score:5, Insightful)
When something is sold, it is no longer the sellers, it's the buyers.
This rediculous IP notion has gotten out of hand.
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+1 obvious, but has to be screamed in the face of idiots.
Comment removed (Score:5, Insightful)
Re:That's crazy talk. (Score:5, Insightful)
..., and I should be able to do whatever I want with it as long as I don't break the law doing so
Whups. You were doing so well until then, too. Let me ask you a single, very simple question: Do you know all of the laws which may be applicable to you? No, of course you don't. Our own government can no longer count the number of federal laws alone. Many of those laws are badly or vaguely written. Did you know, for example, that if you possess a fish that is illegal to possess, own, transport, or consume anywhere in the world, that's a federal crime? That's right: Our own laws make references to the laws of other countries! Have you reviewed the laws of the other 176 countries currently on the planet as well?
You can start to see the problem here. Right now, everyone reading this is likely doing something illegal. Any officer will tell you -- you follow someone long enough, and they'll commit a crime. Justifiably, even. You can't operate a motor vehicle for any length of time without committing some kind of moving violation. And that's just one example of one daily activity of yours... amongst dozens.
My point is this: You shouldn't do (or not do) something based on whether you think it's illegal. The legality of a thing stopped being relevant a long time ago -- everything is illegal. In california, oxygen "is known to cause cancer" (old joke: Californian visits Minnesota and shortly after passes out. He is revived by putting his head under a car's exhaust). The law has degraded into pure idiocy, and anyone who still thinks it should form the basis of any kind of ethical or moral behavior is severely deluded or selling something. Do what's right -- you're going to pay for it anyway. Might as well be damned for what you really are.
John Wiley & Sons should be the ones getting s (Score:5, Insightful)
What about my house? (Score:5, Insightful)
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The Top Court's reaction should be priceless. (Score:5, Insightful)
I predict an obvious but subtle castigation of lower courts for it getting there at all.
But when did we lose common sense? Can't a corporation think it's way out of a wet paper sack?
Clearly the solution for them would be to raise prices abroad.
This parallels drug importing I suppose as well. Same solution imho.
Oh wait...nobody abroad would pay that much for a book? Then maybe you're gouging the US market and as a judge I'd say you've made your profit here via gouging and abroad by what you were willing to sell for under no choice but your own and what the market will bear.
Tough Shiite.
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I am sorry but I am incapable of optimism that this version of SCOTUS can do anything right.
I have no clue which way this can go. I believe that members of this court are highly compromised by their dealings in the corporate world and their personal holdings. If they weren't you wouldn't see stuff happening like Thomas making rulings that affect his previous employer.
The fact is the huge elephant in the room is corporate ties in each and every case. They vote along with that pro-corporate bias even if th
Hmm, up for a corporate exploit (Score:5, Insightful)
So if upheld then Apple (or indeed any American corporation that utilizes offshore manufacture of products of their own design) could forbid resale of their products so that you could only ever buy new from them.
Seems like a win for them.
So Far, Supreme Court Unanimous (Score:5, Insightful)
Before yesterday .. (Score:5, Insightful)
Before yesterday I would have nominated "PETA Condemns Pokemon For Promoting Animal Abuse" as the batshit crazy story of the year. Now I think it has competition.
The case is being misrepresented here.... (Score:5, Informative)
The case is regarding items manufacturered in foreign countries and intended for sale in those countries. NOT items manufactured in foreign countries intended for sale in the United States. At issue is having someone buy things cheaper overseas and resell them cheaper here in the US than the manufacturers intended US price.
That's still horrible - but not nearly as bad as the article summary would have you believe.
Re:The case is being misrepresented here.... (Score:4, Insightful)
The lower court directly addressed that question and said that authorized importation of a work manufactured abroad would not be sufficient for the first sale statute to apply. Perhaps they went further than they needed to to decide the case that was before them, but the case is not really being misrepresented.
While the Ninth Circuit in Omega held that 109(a) also applies to foreign-produced copies of works sold in the United States with the permission of the copyright holder, that holding relied on Ninth Circuit precedents not adopted by other courts of appeals. Accordingly, while perhaps a close call, we think that, in light of its necessary interplay with 602(a)(1), 109(a) is best interpreted as applying only to copies manufactured domestically.
Re:The case is being misrepresented here.... (Score:4, Insightful)
... you honestly think corporations would limit themselves to that interpretation?
Re:The case is being misrepresented here.... (Score:5, Interesting)
Some time ago in NL we had laws against "parallel imports" that specifically targeted this practice (they probably have been superseded by Euro laws since). If I remember correctly, this law granted the manufacturer or their designated representatives the right of first sale (and first sale only) in our country, which was achieved by forbidding anyone else to import their stuff in bulk. Kirtsaeng wouldn't have been able to import the books under this law, but there would have been absolutely no question about the legality of second hand sales in general.
Another thing that I wouldn't mind to be set firmly into law. If you buy a physical product, it should come with a perpetual license for all associated IP: patents, trademarks and copyrights. That license is an inseparable part of the product. The idea that the license remains with the first buyer and is non-transferrable is ludicrous, yet that is exactly what IP holders would love. Creators of intangible products like computer games and e-books have already gotten in on this action, and made transferring access certificates or keys to create game accounts more or less impossible. I do understand the difficulties there, but I'd me much more inclined to firmly anchor the first sale doctrine into explicit law and extend it to non-tangible products, than I'd be to extend the notion of personal licenses to physical products, as is seemingly on the table in this case.
Looks like an end-run around illegal importing (Score:5, Informative)
The guy who's being brought to trial seems to have imported enough textbooks to earn $1.2 million. That means this isn't really a case about reselling your car, but about whether private citizens can buy a bunch of stuff abroad and re-sell it here for profit because it's cheaper abroad.
You can track the legislation here:
Re:Looks like an end-run around illegal importing (Score:5, Insightful)
It will, unless very cautiously written, soon enough be supplying precedent for shutdowns on individual ebayers and whatnot.
Also, isn't 'illegal importing' more usually what we call "Arbitrage" or "Trade", unless the goods imported are themselves illegal or relevant laws concerning customs duties and declarations were not adhered to?
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No, you see this is an individual.
Of course individuals have no right to "Trade" - that's for corporations.
Re:Looks like an end-run around illegal importing (Score:5, Insightful)
the books are legal.
it's reselling them that you need permission for, hence the stupidity of this case.
I repeat, the books weren't unauthorized pirate copies...
Re:Looks like an end-run around illegal importing (Score:5, Funny)
Re:Looks like an end-run around illegal importing (Score:5, Informative)
...this isn't really a case about reselling your car, but about whether private citizens can buy a bunch of stuff abroad and re-sell it here for profit because it's cheaper abroad.
And yet this is the core of how most companies operate these days. Buy cheap abroad (labour, manufacturing, components etc) and sell at home for profit.
It's sad that what has long been considered business as usual for companies is legally questionable for individuals.
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The guy who's being brought to trial seems to have imported enough textbooks to earn $1.2 million. That means this isn't really a case about reselling your car, but about whether private citizens can buy a bunch of stuff abroad and re-sell it here for profit because it's cheaper abroad.
It sounds like the guy's real crime was not being a big corporation.
The article says something different (Score:5, Informative)
So having read the article, it doesn't say the same thing as the summary. To be fair, I haven't read any of the court paperwork, so the publisher could indeed be claiming that you cannot sell something with foreign parts.
This case, however, stems from a student buying textbooks at lower cost overseas and then selling them in the US on eBay.
I'm not saying it's good, right or proper that the publisher wishes to restrict these sales. I simply want to highlight that it's a very different proposition saying you cannot resell in the US a complete product purchased in a developing market where the manufacturer sells at a lower cost as opposed to being unable to sell anything that contains a foreign part.
I believe the situation the publisher supports is already the case in Europe, where Levi Strauss won a battle against supermarkets who were importing grey market denims and selling them at a lower cost than licensed distributors could buy the jeans in the UK.
Re:The article says something different (Score:5, Insightful)
which is equally silly. essentially I shouldn't be able to take my jeans to a flea market because I bought them during a trip to USA? (levi's can be had ~33% of the price there vs. here locally, not kidding).
legally the case is is sadly about who has the right for resale. global markets and all, consumers should benefit from it. if we can find a cheaper way to ship the products into our hands in whatever country we are in, then we should be allowed to do so.
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It might not be as black and white as you make out.
Take for example antiretroviral drugs used for treating HIV infections. As they often say, each tablet costs about 20 cents, after the first tablet which cost $2 billion.
The drug firm needs to recoup its dev
Re:The article says something different (Score:5, Insightful)
They can sell at different prices and deal with importation or they can somehow add some value to the more expensive sales. Maybe delivering them for free and on time, or adding in some service.
What they should not be able to do is demand that my tax dollars make them wealthy.
They have no right to make a profit, only a right to try to.
No, you completely missed the point (Score:4, Informative)
End of amazon/ebay? (Score:3)
Wouldn't this destroy Amazon and Ebay?
they sell an awful lot of second hand kit...
Hope we have a proper treaty with the Goblins. (Score:5, Insightful)
From The Deathly Hallows by JKRowling:
"You don't understand, Harry, nobody could understand unless they have lived with the goblins. To a goblin, the rightful and true master of any object is its maker, not the purchaser. All goblin-made objects are, in goblin eyes, rightfully theirs."
"But if it was bought — "
" — then they would consider it rented by one who had paid the money. They have, however, great difficulty with the idea of goblin-made objects passing from wizard to wizard. [snip] I believe he thinks, as do the fiercest of his kind, that it ought to have been returned to the goblins once the original purchaser died. They consider our habit of keeping goblin-made objects, passing them from wizard to wizard without further payment, little more than theft."
Re:Hope we have a proper treaty with the Goblins. (Score:4, Funny)
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Article is misleading (Score:5, Informative)
What matters is where the authorized "first sale" occurred, not where it was manufactured.
So if a book publisher has books printed outside the US, then imports them and sells them retail for the first time in the US, you can freely resell it because the first sale occurred within the US.
What is being disputed in this court case is whether you can resell a copyrighted item in the US if the first sale occurred outside the US.
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Not quite. Different appellate courts appear to be of different minds about whether 17 USC 109 (permitting unauthorized resale, etc. after the first sale under the auspices of the copyright holder) applies to works manufactured abroad but imported by or under the authorization of the US copyright holder.
Here is the language from the appellate decision in this case, which is what is being appealed:
While the Ninth Circuit in Omega held that  109(a) also applies to foreign-produced copies of works sold in the United States with the permission of the copyright holder, that holding relied on Ninth Circuit precedents not adopted by other courts of appeals. Accordingly, while perhaps a close call, we think that, in light of its necessary interplay with  602(a)(1),  109(a) is best interpreted as applying only to copies manufactured domestically.
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This also brings into question the idea of special pricing based on market being what is at fault. Why should the exact same product that is being sold for a low price in China sell for more in the USA, except for the cost of shipping, import tariffs, and taxes? From that point of view then, if you buy a product outside of the USA and then sell it here, the seller should be expected to pay all of the associated fees, and that would generally eliminate any benefit for selling the product cheap(because yo
It's a little more complicated than that (Score:3, Informative)
The law allows the copyright holder to licence distribution to another party for distribution in another territory. To prevent a companies own products from competing with their domestic sales, the law makes it an infringement of copyright to sell a copy licensed for sale in another country. Whether you think this is right or not, this is what the law recognises, and what the Supreme court will be basing its decision on.
Of course, the lawmakers don't want to prevent you from taking a book with you when you're travelling, nor do they think that you should buy an entire new library if you move to another country. So you're allowed to bring the foreign copy to your country if you have no intention of selling it.
So what happens if you change your mind? Do you have the right to sell something that you legally brought into the country? Is the "first sale" the first time the item was sold, or is it the first time the item is sold in the US?
The article is highly misleading. This has no effect on something that just happens to have been made in another country, as long as it was originally sold by the copyright holder. Only items where the item has not yet been sold in the US.
Re:It's a little more complicated than that (Score:5, Interesting)
It's not complicated at all. Copyright law is incompatible with property rights. Pick which one you want.
The case (Score:5, Informative)
Some student from Thailand imported the EEE books from Thailand, sold them on E-Bay and made 1.2 million dollars. He is claiming immunity under First Sale doctrine. The EEE contract with the Asian publishers prohibit them from selling it to the lucrative western markets. But once the book has been bought in those markets, can they be imported and sold in USA? The appellate court ruled it can't be brought in sold.
I am not a lawyer, but I expect the Supreme Court to rule more narrowly. "When a copyright/intellectual property right originating from USA, is licensed to foreigners under some restrictive license, the foreigners can not use first sale doctrine and third parties/subsidiaries to circumvent the license restrictions". That is the kind of ruling I expect. That is, not all foreign made objects would be exempted from first sale doctrine. Those items made abroad under restrictive licenses from ip-holders in USA alone would be exempted. But I am not sure they will rule this way. I am an engineer most comfortable calculating intersections between triangles and tetrahedrons. I find them very easy compared to US laws.
One interesting tit bit was that, when I came to USA as a student with F-1 Visa, I was scared by the EEE books I was bringing in. I used some 75% of my baggage allowance with books. I knew how serious copyright law was in USA. I knew my books are cheaper in India. I was worried the immigration officer would reject my visa and send me back! Seriously. I was worried about everything from the turmeric powder in my hand baggage to the loose staple on the sealed I-20 form issued by the university attached to my passport! Once inside the USA, I was just relieved. I never even thought for a moment to buy millions dollars worth of EEE books and selling them cheap in the USA. There have been hundreds of thousands of students from Asia who knew the price differentials. None of us thought of exploiting it by arbitrage, because we knew it was "wrong". This creep from Thailand did just that. If the courts do not rule narrowly and uphold first sale doctrine for these EEE books, the publishers will simply stop licensing EEE books under cheap terms. Millions of Asian students will be affected.
This "creep from Thailand" was an entrepreneur (Score:5, Insightful)
There have been hundreds of thousands of students from Asia who knew the price differentials. None of us thought of exploiting it by arbitrage, because we knew it was "wrong". This creep from Thailand did just that.
Actually, engaging in this sort of arbitrage is virtually an American tradition. The only reason there's a lawsuit here is because there's intellectual property involved. If someone discovered that they could purchase Widget X in Country B at a lower price than in Country A, then bought a lot of Widget X and imported to Country A to resell at a higher price, we'd typically call them smart or at least entrepreneurial. Not to mention that consumers in Country A benefit from lower prices.
But since this involves copyright, normal logic goes out the window, and we're told that a book, lawfully purchased in Thailand, cannot be lawfully sold by its purchaser in the United States... because OMG WE NEED DIFFERENTIAL PRICING. You know what? Not my problem. Don't use copyright law to outlaw arbitrage. You want to make your differential pricing more effective? You could translate it into the local language, that'd be a huge barrier to reimportation and reselling.
BTW, this is the exact issue brought up in the Omega v. Costco case - except there it was even more ridiculous, since the copyright was on a design that happened to be stamped on the watch. Currently Costco is apparently winning the issue, since they're arguing that Omega is engaging in copyright misuse in order to control distribution of a normally uncopyrighted object (a watch).
The linked article is full of misunderstandings (Score:5, Informative)
The linked Marketwatch article is complete BS. Clearly the author had no idea what they were talking about, and just took one sentence and expanded it into massive hyperbole. Here are some choice examples from the article:
Put simply, though Apple Inc. AAPL -0.15% has the copyright on the iPhone
I don't think so. They have patents, not copyrights.
It could be your personal electronic devices or the family jewels that have been passed down from your great-grandparents who immigrated from Spain.
No, those things also cannot be copyrighted.
It could also become a weighty issue for auto trade-ins and resales, considering about 40% of most U.S.-made cars carry technology and parts that were made overseas.
Also nothing to do with copyright.
He himself once bought an antique desk from a Supreme Court justice.
Yet another example.
It sounds like the author just made stuff up as they went along. Here are some better articles:
SCOTUS! eBay! Cert and Other Sundries [abovethelaw.com]
Summary of Kirtsaeng v. John Wiley & Sons, Inc. at the Supreme Court's own blog [scotusblog.com]
If they decide we *don't* own what we buy... (Score:3)
the court will have proven itself so divorced from reality that it no longer serves any useful purpose and should be dissolved. Believe me, I was thinking that after that little "money is speech" nonsense.
Re: (Score:3)
What this would mean... (Score:3)
As I recall, we no longer make transistors in the U.S. So don't just think of used foreign merchandise. Think of EVERY product that uses an Asian made transister or microchip.
- No used cars
- No used computers
- No used cell phones
- No used electronics
- Very few used toys
Yes, there are few decisions that would cause a revolution and the mass murder of politicians. But if the Supreme Court decided in favor of the apellate court's decision. I'd wager the result of enforcing such a decision would be the end of the American political system.
I am pretty sure that the Supreme Court will give this an easy slap down.
What's good for the goose... (Score:4, Insightful)
From TFA:
I see. So when jobs get shipped overseas because labor is cheaper, and companies can make a higher profit, I'm told I have to accept lower wages and compete in a global marketplace. When a consumer notices that prices are cheaper abroad and buys books there to increase his profit here, the courts change one of the fundamental concepts of Capitalism (that you can resell what you purchase) to stop him.
Can there be any doubt we live in a Corporatocracy? Can I get a fucking witness?
Re:This will come down to commerce (Score:5, Insightful)
The 99% will not care, because they'll be too busy saying "well it doesn't hurt me directly, and therefore I don't care"
Actually, since it kills every thrift store, second-hand shop, pawn shop, etc. I'm pretty sure "the 99%" are going to notice the problem pretty damn quick.
Re:This will come down to commerce (Score:5, Insightful)
After all, who can say how many stores are currently NOT in existence due to over-regulation? Can you even begin to say what businesses are ALREADY not in existence, due to laws? How many picobreweries, tobacconists, brothels, non-health-department-licensed restaurants, non-licensed physicians and dentists? How many cheap delivery services are NOT in existence due to the Post Office monopoly on first class mail? How many people WOULD be growing MJ in their backyard if it was legal? Exactly how many cab drivers WOULD there be in Dallas if they weren't effectively regulated out of existence so as not to compete with light rail projects?
It's easy to say "this law is harmful because if we pass it, a valuable sector of the economy will disappear and thousands of jobs will be lost". It's harder to convince people to see the jobs and the economic sectors that aren't even there, that were never started, or that used to be there.
Out of sight, out of mind. People don't miss what they don't have, and once the regulated sectors of the economy dry up, people don't even see the regulations as unreasonable anymore. If all the thrift stores disappear, it will just be another of a thousand cuts to our economy, and then people will sit back decades later and wonder why the economy sucks and blame the other party for it.
Re: (Score:3)
"The rulers know that they are going to stop over the line and have the 3rd American revolution on their hands."
No they wont. The american sheep already accept and like it. Getting groped to get on an airplane is happily accepted by the majority of Americans. Having cops ready to tase you or even assult you for any reason is happily accepted by most americans.
As long as we have our cable TV and internet, we will be happy and complacent citizens...
Re: (Score:3)
Nope, USSR was Communist. The US is turning into a fascist country.
The major difference being that communist countries everything is controlled by the workers (in theory). In fascist countries the government is controlled by the corporations. This is obviously a case of the latter. PLEASE USE THE CORRECT TERMINOLOGY!!!!
Re: (Score:3)
Re: (Score:3)
Go for it. The Branch Dividians did very well with that. You're living in a police state that pepper sprays peaceful protestors, and zip-ties/handcuffs people so tightly they suffer nerve damage.
The NRA loves to talk about their 2nd amendment rights, but the sad truth is that any militia attempting to overthrow the government to get their country back wouldn't survive even 5 minutes against part-timers in the national guard.
Re:God! (Score:3)
Don't be ridiculous. Almost every "American" knows that all humanity started with Adam, created by God, in the garden of eden, which, according to a lot of people now, was in the USA. None of this other country bullcrap, God picked America as the chosen land -- I mean, that's why he gave all the oil to Muslims... errr. wait a minute...