Supreme Court Upholds First Sale Doctrine

langelgjm writes "In a closely-watched case, the U.S. Supreme Court today vindicated the first-sale doctrine, declaring that it "applies to copies of a copyrighted work lawfully made abroad." The case involved a Thai graduate student in the U.S. who sold cheap foreign versions of textbooks on eBay without the publisher's permission. The 6-3 decision has important implications for goods sold online and in discount stores. Justice Stephen Breyer said in his opinion (PDF) that the publisher lost any ability to control what happens to its books after their first sale abroad."

Broad Application

[cob666]

Quoting the judge: 'the publisher lost any ability to control what happens to its books after their first sale abroad'

I'd like to see this concept applied to anything that is purchased outright. If the publisher lost the ability to control what happens to the book then shouldn't Microsoft lose the ability to control what happens to an XBox after first sale? Modifying the hardware of something that you own should NOT be against the law.

Re:E-books

[Sique]

It won't be for long. The E.U. high court's decision to allow the resale of used software (Usedsoft vs. Oracle) stated that giving a permanent license for an one-time payment concludes a sale, and the First Sale doctrine applies. Just because you name your EULA in a fancy manner, it doesn't change that it covers a sale. At least for the E.U., all ebook providers thus have to implement the infrastructure to allow a resale of used ebooks.

Re:Broad Application

[PhrstBrn]

DMCA + DRM anti-circumvention clauses makes it a gray area in some places. Cosmetic mods are fine, things that might affect how Xbox DRM works, probably a DMCA violation.

Re:Seriously? 6-3???

[Antipater]

Legally it wasn't so clear-cut. The case hinged on the wording of the Copyright Act, which grants first-sale doctrine to copies "lawfully made under this title [the Act]." The crucial debate was over the word under. Wiley alleged, and the lower courts agreed, that "under" meant "under the jurisdiction of": since the books were produced outside the US, they were made outside the jurisdiction of the Copyright Act and thus not made under the Act. Kirtsaeng alleged that "under" meant "corresponding to the rules set forth in" and thus the doctrine applied. SCOTUS held with Kirtsaeng.

Re:will not stop the publishers from making DMCA r

[gnasher719]

will not stop the publishers from making DMCA requests / filling strikes that can cost you $35 a pop.

DMCA request doesn't apply here at all, because no copies are being made. And anything else can now be classified as tortuous interference with a business, so that could get expensive.

Re:will not stop the publishers from making DMCA r

[bhcompy]

Err, electronic versions make them more relevant. Lazy college professors require you to purchase the online license from publishers like those in question(Wiley) because the website comes setup already with all the quizzes, homework, and tests preconfigured. This is basically standard in every university and community college I've researched in the past 6 years or so. It's too easy for the professor to pass up

Re:Wow

[chill]

Except you don't normally get to ask someone what they want to do with it before you sell it to them. Once the transaction takes place, the purchaser's "intent" doesn't count.

"I changed my mind" is all it would take.

http://en.wikipedia.org/wiki/First-sale_doctrine [wikipedia.org]

Follow the links on "alienation of goods" and "restraint of alienation" if you want to dig into it.

Re:Why did this need to go to the supreme court?

[Jane Q. Public]

"I mean, in all seriousness - I go to the toystore and buy a boxed set of Monopoly for $10. I turn around and resell it to you for $15, that's none of their business - I paid them the price they asked, legally."

Yes, the history of this is interesting. The manufacturers of just about every kind of product in existence, at one time or another, has tried to put restrictions on the after-sale use of their products. Even hammers and shovels. They tried putting "agreements" on the labels, inside and outside the packages, etc. The courts ruled, in EVERY case except (recently) software, that if you walk into a retail store (or mail order), and plunk down your money, it is YOURS and you can do whatever you want with it, regardless of any "agreement" on or in the package.

The only reason software has been an exception has been corporate lobbying. And I'd sure like to see that go away. I don't understand why software should be any different from any other copyrighted work. And in fact it wasn't, until pretty recently.

A little more than 100 years ago, software became common, in the form of those paper rolls of music for player pianos. They are software, in every real sense. Publishers didn't like that people were copying them with paper punches. (Sound familiar? That's what Bill Gates took exception to when his company sold a BASIC interpreter for the Altair on paper tape.) And they tried to put restrictions on their use after first sale, arguing that they were different from other published works, because they controlled a machine. The courts said no. The form of the work didn't matter. Paper rolls with holes in them were nothing more than a different form of the published sheet music.

So what's different with today's software? Nothing. Software is also a written work. Some coder(s) had to sit down and write it. And yes, it might control a machine (a computer), but so did player piano rolls, and punch cards for looms 200 years ago. Same same.

Re:Why did this need to go to the supreme court?

[vux984]

Yes, it did. BUT, you're wrong about one thing. It isn't the "physical product" that is at issue here. it's the copyrighted work.

he actual decision makes some rather insightful observations:

Things like :

noting your microwave has software in it, and that selling your microwave made in China would now have copyright implications. -- you would need the rights holders permission to sell.

ditto your car if it was an import, or perhaps ditto your car even if it domestic if the computer module component was made abroad.

and then there's the note that product packaging is copyright, so that box of markers in a cardboard box with a picture of a dog on it... well it was made abroad and you can't re-sell it until you get permission from the photographer who took that picture.

Wiley's desired interpretation of the copyright act had far far wider implications than just books, or even media. It would have affected practically anything sold with an an instruction manual, anything with a picture on it, anything with a picture on the box, anything with software in it...