Forgot your password?
typodupeerror
Books The Courts United States Your Rights Online

Supreme Court To Decide Whether Or Not You Own What You Own 543

Posted by Unknown Lamer
from the industry-argues-"ownership"-hurts-revenues dept.
Jafafa Hots 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."
This discussion has been archived. No new comments can be posted.

Supreme Court To Decide Whether Or Not You Own What You Own

Comments Filter:
  • by Anonymous Coward on Tuesday October 09, 2012 @07:05AM (#41594879)

    It will provide a huge boost to US manufacturing jobs!

    • Re:Let them do it. (Score:5, Insightful)

      by qbast (1265706) on Tuesday October 09, 2012 @07:12AM (#41594919)
      Actually no, it will be the opposite.
      • Re:Let them do it. (Score:5, Insightful)

        by sjames (1099) on Tuesday October 09, 2012 @03:22PM (#41600431) Homepage

        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.

    • Yes and no (Score:4, Insightful)

      by Anonymous Coward on Tuesday October 09, 2012 @09:10AM (#41596029)

      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.

  • by gorfie (700458) on Tuesday October 09, 2012 @07:07AM (#41594891)
    That would certainly deter me from buying products that were manufactured or contained parts that were manufactured abroad. People would be determined to buy domestic products (assuming they even exist these days). That said, it was clear that I could sell my car without permission when I bought it - changing the terms after the sale seems very wrong. If they implement this rule, they should specify that it applies to sales after a point in time in the future.
    • by Anonymous Coward on Tuesday October 09, 2012 @07:12AM (#41594913)

      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?

      • Re: (Score:3, Insightful)

        by P-niiice (1703362)
        Exactly, and anything that benefits companies is good to go with this court. Thomas would snore in agreement.
        • by roccomaglio (520780) on Tuesday October 09, 2012 @08:10AM (#41595355)
          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. The interesting thing is that some of the pro corporate stuff comes out the liberal side of the court. For instance Keho, this was where the supreme court decided that the government could seize property via eminate domain and give it to a corporation. The logic was that the government would receive more tax revenue from the new use. The conservative side produced citizen united which basically lets corporation give unlimited money to political speech.
          • by medcalf (68293) on Tuesday October 09, 2012 @08:20AM (#41595463) Homepage
            It's Kelo, not Keho, but otherwise a spot-on comment. I would like to think that this would be an obvious, slam-dunk decsion, but after Kelo and Reich, I don't know that there are such things any more. Which, by the way, just points out the infinite danger of the "living Constitution" philosophy: it inevitably leads to the rule of man (that is, arbitrary and capricious rule, rather than the rule of law, which is predictable and not tied to personalities), by the mechanism of making the law meaningless without constant, case-by-case interpretation.
          • The decision in Kelo was based on eminent domain being within state jurisdiction, where the taking was allowable according to Connecticut law, instead of federal jurisdiction. While the end result was a shame and did little to expand citizens' rights, it had nothing to do with a corporate bias because it was based on law and technicalities.
          • by Hatta (162192) on Tuesday October 09, 2012 @09:01AM (#41595937) Journal

            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.

            • by Digicaf (48857) on Tuesday October 09, 2012 @12:40PM (#41598467)

              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.

    • by pesho (843750) on Tuesday October 09, 2012 @07:13AM (#41594923)

      That would certainly deter me from buying products that were manufactured or contained parts that were manufactured abroad.

      Name one such product.

    • Did the contract you signed to purchase the car explicitly say you have the right to resell the car and all of its components? I have not read purchase agreement in a long time but if that statement is not in there, then you were not granted the right to resell without permission if the appellate court's ruling is upheld. Unless your car is 50 years old I doubt that 100% of the parts are made in the US and you would fall into the you are boned category.
      • by gstoddart (321705) on Tuesday October 09, 2012 @07:50AM (#41595187) Homepage

        Did the contract you signed to purchase the car explicitly say you have the right to resell the car and all of its components?

        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.

        • by Anonymous Coward on Tuesday October 09, 2012 @08:11AM (#41595369)
          It would also mean that most garage sales would have to get raided in case there was a stereo or DVD player on sale and many donations to organizations such as Good Will or Salvation Army would not be allowed. Hurray! We can still put that stuff in the landfill though. I remember that appellate court ruling when it was mentioned here or on Arstechnica. At the time I wondered just how they could come to such a ludicrous decision.
        • by MachineShedFred (621896) on Tuesday October 09, 2012 @08:44AM (#41595783) Journal

          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.

          • by Plekto (1018050)

            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

          • by sargeUSMC (905860) on Tuesday October 09, 2012 @10:02AM (#41596645)
            Man, I want to live in your United States, and not the real one that we have. Here's what would really happen in Congress if the USSC came down on the side of corporations in this decision: Nothing
    • by jellomizer (103300) on Tuesday October 09, 2012 @07:53AM (#41595203)

      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.

      • by h4rr4r (612664)

        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.

    • by mellon (7048) on Tuesday October 09, 2012 @08:23AM (#41595499) Homepage

      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.

  • by AlabamaCajun (2710177) on Tuesday October 09, 2012 @07:08AM (#41594895)
    Almost any electronic device and all autos made after the 50s or 60s that has an imported part of some sort. Do we take it to the next level with minerals and metals imported too? I think this has about as much chance of standing as a two legged stool.
    • by Sique (173459) on Tuesday October 09, 2012 @07:21AM (#41594995) Homepage

      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.

      • by dontfearthereaper (2657807) on Tuesday October 09, 2012 @08:23AM (#41595491)
        In a world where patent trolling is rampant... you'll see it happen, and unfortunately, if the ruling is upheld, you'll very likely if not definitely see the following:

        - 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)

    by Anonymous Coward on Tuesday October 09, 2012 @07:11AM (#41594905)

    When something is sold, it is no longer the sellers, it's the buyers.
    This rediculous IP notion has gotten out of hand.

    • by Hanzie (16075) *

      +1 obvious, but has to be screamed in the face of idiots.

    • by squiggleslash (241428) on Tuesday October 09, 2012 @08:08AM (#41595345) Homepage Journal

      ...and yet a lot of people, on Slashdot, don't agree with you.

      I remember when Real Networks reverse engineered the iPod's DRM and shipped a program that copied Rhapsody (then owned by Real) music to the iPod. How people howled.

      Some, rightly, complained that Real's actions were simply propping up DRM and DRM is wrong (although Rhapsody is a fairly good example of a "good" use of DRM if DRM is going to exist anyway, but that's another issue...) But a lot of people were furious that Real had hacked "Apple's" iPod and that Real was being unethical for copying music to "Apple's" devices and it was quite right that Real would need permission from Apple to do that.

      The notion that, actually, an iPod belonged to the buyer, not Apple, and that it was the buyer's decision what to do with it was generally considered flamebait...

      The world is complex. Technology is complicated. I shouldn't have to bring my lawyer into Best Buy with me when I buy a fucking MP3 player. If I buy one, it should be mine, end of story, and I should be able to do whatever I want with it as long as I don't break the law doing so. You want me not to copy the firmware? That's fine, because I can't legally copy it anyway. You want me to not install my own firmware, or reverse engineer what's on it, or sell content I've recorded on the device using the audio recording feature (contianing no third party content), or paint it blue? F you, that's not your decision.

      • by girlintraining (1395911) on Tuesday October 09, 2012 @11:06AM (#41597373)

        ..., 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.

  • by usuallylost (2468686) on Tuesday October 09, 2012 @07:17AM (#41594945)
    It sounds like they are gouging the hell out of their US customers if this guy can buy the same book abroad, pay international shipping on it, probably import duties etc. and still make $1.2 million dollars. Instead we have another case where a "rights holder" is trying to assert insane terms on the rest of country to preserve their business model. Let us hope that the Supreme Court hears this on one of its "non-crazy" days.
  • by cvtan (752695) on Tuesday October 09, 2012 @07:17AM (#41594951)
    It's not just a problem with electronics. I might have Chinese light fixtures, or Mexican light switches, plumbing etc. in my home. Will I have to get permission from 50 different companies before I can sell it?
  • by 109 97 116 116 (191581) on Tuesday October 09, 2012 @07:17AM (#41594963) Homepage

    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.

    • 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

  • by Coisiche (2000870) on Tuesday October 09, 2012 @07:19AM (#41594975)

    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.

  • by retroworks (652802) on Tuesday October 09, 2012 @07:20AM (#41594989) Homepage Journal
    The Fuji vs. Jazz Camera, Lexmark vs. Arizona Cartridge Remanufacturers, and other cases have been rare examples of unanimous rulings by the Supreme Court vs. similar appellate court rulings on patent extension. I work in the re-manufacturing industry and am not too worried about the USA courts (though the Terminator-like persistence of foreign companies bringing the case that resale = patent or trademark infringement is frightening, and the Mickey Mouse rulings on Trademark are depressing). What's more troubling is the direction ownership law goes when the USA Supreme Court and European Courts no longer oversee 80% of all product sales. Chinese consumers purchase more computer products than the USA today, and if they take a Japanese turn in their court rulings, these corporations may become godlike, and the USA may be tempted to try to give our own companies (like Apple) similar power. See links to the cases above at http://retroworks.blogspot.com/2012/03/usas-finest-supreme-court-ruling-for.html [blogspot.com]
  • by OzPeter (195038) on Tuesday October 09, 2012 @07:21AM (#41594997)

    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.

  • by Anonymous Coward on Tuesday October 09, 2012 @07:22AM (#41595007)

    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.

    • by cpt kangarooski (3773) on Tuesday October 09, 2012 @07:54AM (#41595211) Homepage

      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.

    • by The Rizz (1319) on Tuesday October 09, 2012 @07:55AM (#41595219)

      ... you honestly think corporations would limit themselves to that interpretation?

    • by JaredOfEuropa (526365) on Tuesday October 09, 2012 @08:16AM (#41595415) Journal
      The real question is how the ruling, if upheld, would affect subsequent cases. At a glance there's still a lot of reasons to be afraid, very afraid.

      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.
  • by concealment (2447304) on Tuesday October 09, 2012 @07:24AM (#41595017) Homepage Journal

    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:

  • by Albanach (527650) on Tuesday October 09, 2012 @07:26AM (#41595025) Homepage

    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.

    • by gl4ss (559668) on Tuesday October 09, 2012 @07:49AM (#41595171) Homepage Journal

      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.

      • by Albanach (527650)

        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.

        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

        • by h4rr4r (612664) on Tuesday October 09, 2012 @08:10AM (#41595357)

          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.

    • by Zontar_Thing_From_Ve (949321) on Tuesday October 09, 2012 @08:34AM (#41595639)
      You do not seem to understand the significance of what you read. Basically it is this - immigrant student from Thailand goes to buy university text books and thinks "Wow. These prices are a lot more than I would pay back home for the same books. Maybe there is a business opportunity here." Then he recruits relatives to buy the books in Thailand at Thai prices and ship them to the USA, where he sells them on Ebay for over a million dollars in profit. John Wiley & Sons sues. Thai student invokes "first sale" as a legal defense, so it broadens the scope to include basically every manufactured good.sold in the USA. It is his invoking of "first sale" that has made this potentially into a gigantic nightmare.
  • by marcushnk (90744) <senectus@noSpaM.gmail.com> on Tuesday October 09, 2012 @07:31AM (#41595047) Journal

    Wouldn't this destroy Amazon and Ebay?
    they sell an awful lot of second hand kit...

  • by 140Mandak262Jamuna (970587) on Tuesday October 09, 2012 @07:32AM (#41595051) Journal
    If we don't have an explicit treaty with the Goblins, everything made by Goblins would be exempted from the First Sale doctrine. Citation provided:

    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."

    • by JaredOfEuropa (526365) on Tuesday October 09, 2012 @08:23AM (#41595511) Journal
      I hope you have a license to reproduce this excerpt; Rowling takes her IP very seriously. And it's "foreign made" to boot...
      • That is very inconsistent with the view of JK Rowling I have. She said in a 2010 interview, "scarper[ing] to the West Indies [to avoid taxes] at the first sign of a seven figure royalty cheque would be contemptible". She pays taxes in UK because, "it is my notion of patriotism". She believes, like Warren Buffet, the rich should pay to contribute to the social safety net, because she herself was a beneficiary of the safety net at one time. She does not sound like one who would come dunning for money from som
  • by rollingcalf (605357) on Tuesday October 09, 2012 @07:34AM (#41595071)

    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.

    • 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.

    • by Targon (17348)

      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

  • by 91degrees (207121) on Tuesday October 09, 2012 @07:47AM (#41595147) Journal
    Copyright law recognises that publishers may well want to publish the same item at a different price in another country. A textbook in the US or Europe can be sold at quite a high price. In poorer countries, there's no way they can sell for these markups, so they're a lot cheaper.

    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.
  • The case (Score:5, Informative)

    by 140Mandak262Jamuna (970587) on Tuesday October 09, 2012 @08:02AM (#41595273) Journal
    Many book publishers license their books to be published in India, Thailand etc cheaply. I have bought many "Eastern Economy Edition" (EEE) in IISc Bangalore and IIT Madras when I was a student there. Though the price is very cheap compared to the dollar prices, it is still comparable on purchasing power parity exchange rate. For example the the book Engineering Statics and Dynamics by Shames cost me 65 Rupees or about 8 USD (exchange rate was 8 Rs per USD back in the 80s). My dad, a civil servant comparable to a sergeant in the US armed forces, had a take home pay of about 500 Rs then. Imported books, not reprinted as EEE, would easily run into 50 USD to 60 USD. It would have beeen one month pay for my dad.

    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.

    • by langelgjm (860756) on Tuesday October 09, 2012 @09:38AM (#41596387) Journal

      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).

  • by MobyDisk (75490) on Tuesday October 09, 2012 @08:55AM (#41595885) Homepage

    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]

  • by gestalt_n_pepper (991155) on Tuesday October 09, 2012 @09:06AM (#41595999)

    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.

    • by Greyfox (87712)
      Certainly some adjustments are on order. Ever since that decision I've been thinking they're just making judgments sarcastically and saying "If you don't like it, fix the constitution!" Their real message seems to be "Fix the constitution," but that does not appear to have occurred to anyone.
  • by PortHaven (242123) on Tuesday October 09, 2012 @09:21AM (#41596171) Homepage

    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.

  • by kilfarsnar (561956) on Tuesday October 09, 2012 @09:49AM (#41596491)

    From TFA:

    The case stems from Supap Kirtsaengâ(TM)s college experience. A native of Thailand, Kirtsaeng came to America in 1997 to study at Cornell University. When he discovered that his textbooks, produced by Wiley, were substantially cheaper to buy in Thailand than they were in Ithaca, N.Y., he rallied his Thai relatives to buy the books and ship them to him in the United States.

    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?

As the trials of life continue to take their toll, remember that there is always a future in Computer Maintenance. -- National Lampoon, "Deteriorata"

Working...