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Electronic Frontier Foundation Your Rights Online

Defending the First Sale Doctrine 338

The Electronic Frontier Foundation recaps two court cases pending in the U.S. which will decide whether you're allowed to re-sell the things you purchase. The first case deals with items bought in other countries for resale in the U.S., such as textbooks. An unfavorable decision there would mean "anything that is made in a foreign country and contains copies of copyrighted material – from the textbooks at issue in the Kirtsaeng case to shampoo bottles with copyrighted labels – could be blocked from resale, lending, or gifting without the permission of the copyright owner. That would create a nightmare for consumers and businesses, upending used goods markets and undermining what it really means to 'buy' and 'own' physical goods. The ruling also creates a perverse incentive for U.S. businesses to move their manufacturing operations abroad. It is difficult for us to imagine this is the outcome Congress intended." The second case is about whether music purchased on services like iTunes can be resold to other people. "Not only does big content deny that first sale doctrine applies to digital goods, but they are also trying to undermine the first sale rights we do have by forcing users to license items they would rather buy. The copyright industry wants you to "license" all your music, your movies, your games — and lose your rights to sell them or modify them as you see fit."
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Defending the First Sale Doctrine

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  • by erroneus ( 253617 ) on Tuesday December 25, 2012 @09:55PM (#42391517) Homepage

    This is something that gets to the heart of what copyright is being turned into.

    Initially, copyright is what the name says it is -- the [exclusive] right to make copies for distribution.

    But as we have seen with things like "region coding" and the like, we are seeing attempts at controlling not just who can legally make copies, but who can legally have access to it. Information for one region cannot be legal in another region. In some circles, we call this censorship. In others, we call these trade barriers.

    Big media:

    Go ahead and do your worst. Branding like "DRM Free" and "Independent" have become the new "Organic" and industry labels have become the new "Toxic." Your disrespect of your customers/consumers is increasingly more recognized. Artists all over the world, using home computers and even iPads are creating content which is fun and entertaining. Small projects are becoming bigger projects and they don't involve you. So please. Enlighten the rest of the world by restricting them from having free access to your stuff and the new Organic entertainment out there will replace you.

  • This is... (Score:5, Insightful)

    by jamstar7 ( 694492 ) on Tuesday December 25, 2012 @10:02PM (#42391547)
    ... the logical conclusion to the perpetual copyright dilema. You no longer 'own' anything, not even your own genome. You merely 'license' it for a time, with the license revokable at any time by the 'true copyright holder'.

    And they wonder why there are Pirate Partys in most of the 'free world' these days. Perpetual copyright is evil, it locks away ideas that could have been used to make future ideas as an amalgam of current ideas.
  • Get real! (Score:5, Insightful)

    by jcr ( 53032 ) < .ta. .rcj.> on Tuesday December 25, 2012 @10:02PM (#42391549) Journal

    It is difficult for us to imagine this is the outcome Congress intended.

    Congress intends to deliver whatever the hell their biggest campaign contributors want them to do. This is why we already have perpetual copyright in effect.


  • Inheritance (Score:5, Insightful)

    by Phrogman ( 80473 ) on Tuesday December 25, 2012 @10:15PM (#42391605) Homepage

    This also bears on inheritance. Someone with a music collection dies and their heirs cannot inherit that music collection because when Big Media gets ahold of the laws like this, their heirs have no legal right to the media

  • by epyT-R ( 613989 ) on Tuesday December 25, 2012 @10:35PM (#42391707)

    There is no reason why actors need millions of dollars for their tradeskills. Perhaps the market just doesn't support that anymore.

  • by Anonymous Coward on Tuesday December 25, 2012 @10:46PM (#42391759)

    Re: "Region Coding"

    For DVDs and games, this is horrible because you pay the same price and get region locked.

    But consider the case of physical books. Many publishers have set up operations in India and other countries to reprint technical books at a cheaper price. They make books available at around a tenth of the price they would cost in the US (because the market here can only afford that much). Of course, these aren't multi-color prints on glossy paper but the contents are the same. The book has a marking (For sale only in ). This is the only way the publisher can make money while still differentiating pricing for the local market and not killing their home market. If you move, the books can move as well. They are not region locked for consumption, only for purchase and resale.

    This business model is now broken, because one guy decided to import books wholesale and resell them in another market.

    EBay doesn't care if the publisher goes out of business because they aren't publishers. They are sellers. They make commission on every sale, that's why they want more sales. And that's why they are fighting for no exclusions on what can be sold.

    The law might be unclear, but the present situation. IMHO, looks better than what we're going to have.

  • by 140Mandak262Jamuna ( 970587 ) on Tuesday December 25, 2012 @10:46PM (#42391761) Journal
    The text book prices in USA are outrageous, and there is severe conflict of interest in profs recommending books and getting kick backs from the publisher. True. But that does not mean we should sensationalize this issue and exaggerate the consequences of the possible court rulings.

    The case involves a U.S copyright holder who gives a limited license to a foreign entity to sell books within that country. People who purchase such books in that country have all the first sale rights within that country, (depending on that country's laws). Even if the courts rule against the importer of the books, it will only apply to US copyright round-tripping via a foreign entity. Someone buying a product with foreign IP will have the same first sale rights to buy and sell within USA, like any Taiwanese student who buys these Eastern Economy Edition books to buy/sell within Taiwan. What these publishers are objecting to is, the books very specifically marked "not for sale outside Taiwan" are being smuggled in and sold in USA.

    Most of us slashdotters work in the software industry and it is the Intellectual Property protection is responsible in large part to the size and security of our pay checks. Let use look at it objectively.

  • by Anonymous Coward on Tuesday December 25, 2012 @10:53PM (#42391779)

    Clearly it does.

  • Digital (Score:5, Insightful)

    by RazorSharp ( 1418697 ) on Tuesday December 25, 2012 @11:10PM (#42391843)

    When it comes to reselling digital goods, I think that's a whole clusterfuck our legal system doesn't properly account for. How can the court rule one way or the other when there are no laws to interpret? And even if there is some law that applies, is it possible for the court the overrule it on the basis of absurdity?

    For instance, if I managed to get a law passed through congress that stated that people must respirate using CO2 rather than O2, does a court have the power to void the law regardless of whether its constitutional or not?

    The questions may seem rather dumb, but it seems to me that the nature of digital is so far removed from our normal interpretation of property that it cannot be treated as such. The main difference being that if I resell a guitar of mine, for instance, I no longer have that guitar. With software or digital media, I can just make a copy. If I can't make a copy (well, if it's difficult to make a copy) that's just because the software is designed that way. But the problem with designing software so that it cannot be copied is that it's a futile effort -- it goes against the nature of what software is. All that's needed is electricity and a storage device and you can make as many duplicates as you want. I seriously doubt it's possible to make foolproof DRM -- DRM reminds me of a dog chasing it's tail.

    When it comes to the first case I think it's obvious which way the court will rule. There's no way a copyright invalidates the resale of an item. That's not what copyrights were designed to do -- they're purpose is in the name, to grant exclusive rights over copying (and selling) material. When it comes to the second case I think a false dichotomy is being presented. While I do find it questionable whether the first-sale doctrine applies to digital content, but I don't like the idea of 'licensing' something that exists on my HDD (even though, technically, it's all licensed). If it exists on my HDD or SSD it seems that I should be able to do what I want with it aside from make copies to resell (however, I see it solely as a copyright issue, fuck software patents).

    I dunno, I guess all I'm saying is that this shit's way too complicated. It's one of many cracks that's forming in capitalism. I'm sure in John Locke's day the idea that property is an innate right sounded good (especially to those with property). But have we extended ownership rights too far? Do I really have the right to own an idea? Sure, but once I publicly express that idea, perhaps it now belongs to the public.

    One of the most ironic parts of Atlas Shrugged is when the government abolishes patents and copyrights. Henry Rearden is pissed. I thought it was so funny that throughout the entire book the main characters are bitching and moaning about the government being all over their backs, but when the government actually grants more freedom to society, when the government decides to stop using the threat of violence to protect the coffers of the wealthiest in society, only then do they want the government to wield and assert its power. How can one advocate a philosophy that demands the public be given the least amount of restrictions on their freedom as possible, and at the same time insist that the government is duty-bound to enforce patents and copyrights?

    If you really get down and examine what property is, both in a concrete and abstract sense, it exposes itself to be the big gaping logical hole in capitalism. In a concrete sense one's property is the things they have in their possession -- that includes the music and software on your HDD. In an abstract sense, property is what the government grants one a legal claim over and is willing to enforce that claim. Basically, the law doesn't reflect reality, it reflects an abstraction that conflicts with reality. We try to make reality adhere to the abstraction but that's not always possible. Because, in reality, one can only have total ownership over an idea by not expressing it. Once it's been expressed -- verbally, in print, or digitally -- it belongs to anyone who remembers it.

    Probably none of this makes sense. I blame eggnog.

  • Re:This is... (Score:5, Insightful)

    by LordLucless ( 582312 ) on Tuesday December 25, 2012 @11:15PM (#42391863)

    Meh, my collection of DRM-free (either self-ripped or torrented) can't have it's license revoked, and it'd take 3 harddrive failures for me to lose it all. Plus, if I did through some catastrophe (say, a housefire, which would also destroy your physical collection), re-torrenting is trivial.

    DRM is only a problem if you're willing to play their game.

  • by Charliemopps ( 1157495 ) on Tuesday December 25, 2012 @11:21PM (#42391889)

    nobody is going to make The Lord of the Rings or Star Wars in their basement.

    15 years ago my band laughed at me when I suggested we record an album by renting a single, very expensive, microphone, and then recording with my computer and layering each track individually saving us nearly 10k. Now, any decent band has their own recording studio that pretty much revolves around a single PC. The recording industry exists at this point for the sole purpose of promotion and that will be gone soon as well. 15 years ago recording a studio quality album in your basement was laughable, and now it's how things are done. The same will happen with video, and as much as the movie industry will kick and scream... they will die. This is the free market, old, inefficient methods of productions, with all it's corporate leaches and middlemen always get traded for more direct methods of production. Eventually the people with the ideas can produce their product directly, and no longer need help. There is no such thing as "Big art", music producers were nothing more than financiers, loaning musicians money with horrendous terms. The same goes for movies and eventually it will be so cheap to produce a movie that the anal rape that movie producers have to go through to get their movie made will be a thing of the past.

  • by melchoir55 ( 218842 ) on Tuesday December 25, 2012 @11:48PM (#42391993)

    The IP laws in the States do not protect the size and security of the paycheck of the lowly developer. The lowly developer is paid exactly as little as their company can get away with. It doesn't matter how much the company makes assuming the company makes enough to stay viable. These laws protect the size and security of MBA moochers at the top of the food chain. If my company, for example, made 200x what it does... I would not get a raise. If it made 1/200th of what it does, I wouldn't get a paycut.

  • Re:Get real! (Score:2, Insightful)

    by Anonymous Coward on Wednesday December 26, 2012 @12:01AM (#42392045)

    I'll be 83 years old when ANH enters the public domain, if copyright isn't retroactively extended between now and 2072. The original theatrical version that is.

    I'm a 23 year old fan. I've been a fan since I first saw it when I was six. I'll be either dead, a geriatric fucker on life support, or a cyborg by the time a movie made 12 years before I was born goes into the public domain and becomes legal to do anything you want with. That seems like a cultural injustice to me.

    Eventually copyright will last so long that paleontologists tens of thousands of years from now won't be allowed to make copies of our art. Does that sound good for anyone. By the time a cultural icon like Star Wars goes into the public domain, nearly all but the very youngest of those who saw it for the first times in theaters will be either dead, or senile.

  • by Kjella ( 173770 ) on Wednesday December 26, 2012 @12:29AM (#42392163) Homepage

    Most of us slashdotters work in the software industry and it is the Intellectual Property protection is responsible in large part to the size and security of our pay checks. Let use look at it objectively.

    Objectively, they want to be able to shop for labor, products and services globally while we can't. Do you think your pay check is any more secure against outsourcing just because they can force people to buy expensive "Not for sale outside the US" editions instead of cheap "Not for sale outside Taiwan" editions? Hell no, they'll go where it's cheapest but would very much like to stop you doing the same. And you bought it hook, line and sinker...

  • by russotto ( 537200 ) on Wednesday December 26, 2012 @12:57AM (#42392273) Journal

    An unfavorable ruling from the Supreme Court will not mean the end of resale, even for imported items. It will mean the grey market (sale of items imported from other countries without the blessing of the manufacturer) will become illegal, but items bought from authorized resellers in the United States will still be able to resold.

    I rather suspect the Supreme Court will be sharpening their knives and splitting this hair very fine, ruling against the importer but failing to provide guidance otherwise.

  • by russotto ( 537200 ) on Wednesday December 26, 2012 @01:03AM (#42392293) Journal

    If they rule so as to effectively destroy First Sale Doctrine, what are our options?

    Raise the Jolly Roger.

  • by mark-t ( 151149 ) <markt@nerdfl[ ]com ['at.' in gap]> on Wednesday December 26, 2012 @02:00AM (#42392503) Journal
    The consequences of completely abandoning copyright would be very dire in any society which does not completely subscribe to socialism. Before copyright, the natural difficulty that existed to actually make copies in the first place is what gave creators of works some level of control over their own work. If you believe that taking what little (admittedly artificial) control remains on account of copyright legislation would actually be beneficial to society, think again.
  • by Doctor_Jest ( 688315 ) on Wednesday December 26, 2012 @04:02AM (#42392931)

    Quite true. The side issue is the relationship to "intellectual property" and "profit." There has been a concerted effort for a while now to claim that something copyrighted is guaranteed revenue, and infringement costs "real" dollars (though no one gets to write it off on their taxes....) Even "The Economist", not exactly anarcho-capitalists, said recently that copyright was never intended to be a property right. *shrug* Get corporations nuzzled up to the teat of perpetual revenue, and they'll fight tooth & nail to keep it.

  • by Anonymous Coward on Wednesday December 26, 2012 @04:17AM (#42392983)

    "thank god" you said. The name of this god is called money.

  • by Damouze ( 766305 ) on Wednesday December 26, 2012 @06:36AM (#42393363)

    It reminds me of an old Sid Meier game (SMAC):

    "Beware of he who would deny you access to information, for in his heart he dreams himself your master. "

  • by pla ( 258480 ) on Wednesday December 26, 2012 @07:46AM (#42393565) Journal
    You know why? Because time is money. An experienced recording engineer can get you from mic to mixed album in around a week.

    First, don't take this the wrong way - I know a few sound engineers, and know what they can do that your average home studio will never manage to pull off. That said...

    You phrased it absolutely the right way - But until they make it big, your indie band pays their rent by stocking Wallyworld shelves at night for minimum wage. And as the flip-side of "time is money", if you make shit for wages, you can put an awfully lot of time into a project before you break even money-wise.

    As a kid bagging groceries, I changed the oil in my car. Today, you couldn't pay me to do that crap.
  • by khallow ( 566160 ) on Wednesday December 26, 2012 @08:09AM (#42393647)

    Corporations are collections of CAPITAL and people.

    FIFY. That kills your entire argument. Again, to repeat what has already been said, the Citizens United argument was to grant to groups of people the rights that they were due. The corporation's legal existence is irrelevant aside from being a convenient form for groups to organize under.

    What they essentially said was that once Congress or the states allow corporations to exist that they then lose all authority over them, which is both illogical and stupid.

    I think it's painfully obvious that Congress and the states didn't actually lose authority over corporations. A bit of bad and unconstitutional law concerning campaign funding was overturned. No real drama occurred.

  • Re:This is... (Score:5, Insightful)

    by loneDreamer ( 1502073 ) on Wednesday December 26, 2012 @12:58PM (#42395581)
    True. But a lot of old content, ironically, can't be found/purchased either. So 600x400 is better than 0x0.
  • by mrchaotica ( 681592 ) * on Wednesday December 26, 2012 @02:15PM (#42396391)

    The corporation's legal existence is irrelevant aside from being a convenient form for groups to organize under.

    On the contrary, the corporation's legal existence is central to the issue! Groups are perfectly capable of exercising their rights of free speech and assembly without incorporating. Corporations, like copyrights, are an artificial legal construct and a privilege, and it's perfectly reasonable to impose restrictions in return for granting the benefits.

Things equal to nothing else are equal to each other.