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Books Education The Courts United States

Supreme Court Upholds First Sale Doctrine 648

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."
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Supreme Court Upholds First Sale Doctrine

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  • by Anonymous Coward on Tuesday March 19, 2013 @11:09AM (#43213365)

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

  • by Anonymous Coward on Tuesday March 19, 2013 @11:11AM (#43213391)

    Like, seriously? The supreme court saw reason and is judged in favor of the consumer?! Will wonders ever cease!

  • by Anonymous Coward on Tuesday March 19, 2013 @11:12AM (#43213403)

    No better time to start making money.

  • E-books (Score:5, Insightful)

    by balsy2001 ( 941953 ) on Tuesday March 19, 2013 @11:13AM (#43213413)
    I wouldn't be surprised to see a bigger push towards e-books. That is a way around the "problem" for the publishers.
  • by Zcar ( 756484 ) on Tuesday March 19, 2013 @11:16AM (#43213451)

    They're not supposed to rule in favor of consumers. Or corporations. They're supposed to rule in "favor" of the law, regardless of which side is popular. The why of a ruling is more important, often, than which side wins and the "right" ruling can be made for the wrong reasons.

  • Wow (Score:5, Insightful)

    by onyxruby ( 118189 ) <onyxruby@comc[ ].net ['ast' in gap]> on Tuesday March 19, 2013 @11:16AM (#43213455)

    This may be one of the most important decisions this court has gotten right in years. This was absolutely huge because of the implications of what would have happened if it had gone the other way. This is critical in terms of the idea of actually owning what you buy, without this manufactures could simply make things out of country and avoid first sale rights. This could have affected pretty much every aspect of Americans daily life and is a good first step in restoring Intellectual Property sanity.

    It's funny how property rights have historically been a right wring agenda item until they are shown to be just as important to the left as well...

  • by RandomFactor ( 22447 ) on Tuesday March 19, 2013 @11:17AM (#43213467)

    If they wrote it....they'll want the latest edition.

  • by pollarda ( 632730 ) on Tuesday March 19, 2013 @11:18AM (#43213473)
    There will be a huge push now for electronic books under the guise of "convenience" but what it really comes down to is that they will want to "license" the book rather than sell it. At the same time, the electronic versions will simply continue to make the publishers less and less relevant especially for new titles.
  • 6-3? (Score:2, Insightful)

    by Udo Schmitz ( 738216 ) on Tuesday March 19, 2013 @11:23AM (#43213523) Journal
    6-3? What did the 3 think? This is mind boggling. And kind of frightening.
  • by ThorGod ( 456163 ) on Tuesday March 19, 2013 @11:25AM (#43213535) Journal

    You say that, but given some of their more recent decisions this latest decision is still shocking.

  • by Jane Q. Public ( 1010737 ) on Tuesday March 19, 2013 @11:26AM (#43213545)

    "Seriously? Reselling a physical product you bought legally needed the highest court in the land to adjudicate?"

    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.

    This has BIG implications for copyrighted works. In essence, it upholds the 100-year-old rule that says publishers' "terms" bedamned: if you bought it, it's YOURS. You can sell it, burn it, or whatever you want.

    Although lower courts have upheld First Sale Doctrine re: copyrighted software for resale on Ebay and Amazon, it was reaffirmed here by the Supreme Court.

    So unless you have an existing contract with the publisher when you buy software, you can pretty much ignore their "license agreement". You bought it, it's yours. Once you have paid for it, you can do whatever you want with it, regardless of any "license agreement" inside the box or in a popup window. But you still can't legally distribute copies without the copyright holder's permission.

  • Re:E-books (Score:5, Insightful)

    by fuzzyfuzzyfungus ( 1223518 ) on Tuesday March 19, 2013 @11:31AM (#43213597) Journal

    I think the issue would be that the DMCA, unless substantially amended, would make first sale irrelevant, not that fancy-EULA-talk would eliminate first sale in theory:

    If my DRM system is sufficiently robust that you would have to break it(either to transfer the file to the party you are selling to, or for the party you are selling to to read/execute the file), you can have your precious little 'first sale' rights, it's just that somebody still needs to commit a federal felony to make the goods sold actually worth more than $0 to anybody who I don't approve(since the value of an encrypted ebook you can't read, or software that won't run because the authentication server isn't giving it the thumbs up, isn't very high..)

  • by alen ( 225700 ) on Tuesday March 19, 2013 @11:33AM (#43213623)

    you can modify the hardware all you want, you can't play on x-box live with modified hardware. online service is different than hardware you own.

  • by Anonymous Coward on Tuesday March 19, 2013 @11:37AM (#43213661)

    Shall I rephrase then; The supreme court has ruled in favor of reason and against anti-competitive behavior as exhibited by book publishers who establish exclusive deals with schools so that they may charge exorbitant amounts of money to people who can't afford it whilst excluding any other agents and thereby precluding possibility of a free market existing within the confines of this arrangement (sorry for lack of punctuation, but I wanted to say it all in one breath for emphasis). Anyway, the fact that 3 of the judges were in dissent should tell you that the brain-trust over there is not playing with a full deck hence my surprise at the verdict. I know I'm not in minority when I DO FIND that the Supreme Court actually finds in favor of the 'consumer'.

  • by pavon ( 30274 ) on Tuesday March 19, 2013 @11:44AM (#43213735)

    But the body of law is frequently contradictory, and the Constitution is frequently vague. That give the justices a fair bit of latitude in their decisions while still being constant with the law. It is good to see them choosing to err on the side of individual's rights in a case that could very legitimately gone either way.

  • by jedidiah ( 1196 ) on Tuesday March 19, 2013 @11:48AM (#43213781) Homepage

    Those laws were created by people chaffing against the abuses of what would most likely be compared to one of our modern multinational corporations.

    The notion of corporation as person would likely appall the whole lot of them regardless of political faction.

  • by ShanghaiBill ( 739463 ) * on Tuesday March 19, 2013 @11:55AM (#43213865)

    You say that, but given some of their more recent decisions this latest decision is still shocking.

    Would you care to give an example? There are a number of rulings that they made that I didn't like, but when I look at the underlying law, yeah, they interpreted it correctly. If you don't like a law, you shouldn't try to get the courts to twist or ignore it. Instead you should try to get the legislature to repeal or change it.

    Btw, if anyone is interested, the dissenting justices in this case were Scalia, Ginsburg, and Kennedy. So a righty, a lefty and a centrist.

  • by jedidiah ( 1196 ) on Tuesday March 19, 2013 @11:55AM (#43213869) Homepage

    First sale rights are not something that should depend on a statute to begin with. They should be a self-evident aspect of personal property right that are so taken for granted that they aren't explicitly stated anywhere.

  • Re:6-3? (Score:5, Insightful)

    by larry bagina ( 561269 ) on Tuesday March 19, 2013 @12:00PM (#43213919) Journal
    If only they wrote a dissenting opinion. I guess we'll never know what they were thinking!
  • by Anonymous Coward on Tuesday March 19, 2013 @12:02PM (#43213933)

    Anything Scalia votes for is most likely against consumers/individuals.

  • by IndustrialComplex ( 975015 ) on Tuesday March 19, 2013 @12:19PM (#43214099)

    Guise of convenience? I'm pretty sure they really are more convenient...

    Electronic copies can be more convenient. But currently, they are not. Why are they not more convenient? Well let me see if I can find a source... Oh yes here it is:

    I can easily break the DRM on my books so that I have backups...

    If you notice, this person here has to run cracking software just to get their files to play nicely and not destroy itself if this person tries to do the basic tasks of backup or use on an 'unauthorized device'.

    You see, they can be more convenient, but they are not. The eBook market is a minefield of incompatibility and artificial restriction. It takes away huge capabilities present in real books, and offers it back in a crippled/reduced capacity and calls it a 'bonus feature'.

    Want to give your book to a friend? Hand it to them. Done.

    Want to give your eBook to a friend? Well, first lets understand what format of eBook you have, which vendor did you purchase it from. Depending on the vendor, and their software, you might be able to lend it, but only once, or not at all. I'm not sure. Oh wait, your friend is using this specific type of software right? Oh he isn't? Well, guess you can't lend it to him. So he wants to use the software, hope he agrees to all the terms and conditions associated with the use of such software.

    Am I exaggerating? A little... No wait, I'm not exaggerating at all, it really is a mass of incompatible formats, competing ecosystems, overly-limited 'rights', and flawed laws which make even your simple 'remove the DRM' action illegal (depending on how cranky a prosecutor is on a given day)

    eBooks SHOULD be more convenient, but right now they certainly are not.

  • by kelemvor4 ( 1980226 ) on Tuesday March 19, 2013 @12:22PM (#43214127)

    Guise of convenience? I'm pretty sure they really are more convenient, my room is rather small and I do a lot of traveling, I can easily break the DRM on my books so that I have backups, but with paperbooks, I'd never be able to keep as many of them.

    It's easy to say greedy publishers, and to an extent they are, but unless you're in the habit of buying used books or live in a huge house, you're going to have to get rid of them over time anyways, but with ebooks, you won't likely ever hit that point.

    With a licensed ebook you don't have the option of reselling it. When you're done with those paper books, you can resell them and recoup some of your cash. If it weren't for getting screwed on your resale rights, I'd be on board. If the ebooks were like 50% cheaper than print it might be worth giving up on the resale rights. Unfortunately the ebooks I've looked at were the same or more expensive than printed books.

  • by Sarten-X ( 1102295 ) on Tuesday March 19, 2013 @12:23PM (#43214135) Homepage

    Since we're dragging the dead into this [], I'll say that the founding fathers would likely support corporate personhood. They'd probably have less concern for the rest of the Constitution when allowing it, though.

    The debate over corporate personhood starts from a simple claim: If a corporation isn't a real entity with rights, then its contracts aren't protected by contract law. That means that employment contracts aren't valid, business-to-business contracts don't matter, and the only way for anything to get done would be personal contracts, meaning the CEO is personally responsible for the office toilet paper.

    For tiny companies, personal contracts are fine. For modern small businesses, even, turnover may be high enough that personal contracts won't work. Sure, you can make that agreement today with the CEO, but next week the company could fire its CEO and your contract is probably going to go unfulfilled.

    The solution is to give corporations some rights. Give them contract protection, so they can legally be a party to agreements. Give them free speech, so the government can't simply shut down gun manufacturers or publishers it doesn't like. Give them the right of ownership, so the company agents can conduct business without needing any particular person to be involved in every transaction.

    Once you start granting companies rights, though, you hit the slippery slope... If ownership of supplies is allowed, why not copyrights? Copyrights expire after the author's death, so that means the company's death... in a few centuries. Individuals have the right to bear arms, so a company militia is perfectly fine, right?

    As I understand, there was a lot of support in the 1700s for expanding business. America was going to be the land of opportunity, with resources to spare for everyone, so where an Englishman would be lucky to have a small shop, an American could have two or four easily - and each shop's employees would need to make deals on behalf of the company. Back at the framing of the Constitution, it'd be easy enough to designate corporations as limited entities, granted only a particular set of rights to allow them to function for commerce, but not to directly sway politics. Now, though, we can't touch the sacred Constitution.

    Slowly, we're moving in the right direction, but we just don't have any codified laws to lead judges. Corporations eventually get judgements clarifying that they have the rights they need, but with so much backlash against any extent of "corporate personhood", it's political suicide for any lawmaker to try to define what's allowed and what isn't. Judges have to decide for themselves what's right or wrong far more than they're supposed to.

  • by Quila ( 201335 ) on Tuesday March 19, 2013 @12:27PM (#43214181)

    Not surprisingly. Don't make the mistake of seeing the conservatives as being against the people, and the liberals being for the people. It's all over the board.

  • by moeinvt ( 851793 ) on Tuesday March 19, 2013 @12:30PM (#43214213)

    The federal government protects the profits of big pharma by banning the re-importation of medications and medical devices sold in other countries. Hopefully this ruling sets a precedent for a challenge to that ridiculous prohibition. There's no valid reason that a drug should sell for $X in the USA and sell for a tiny fraction of that price just over the border.

    Funny how the government is all in favor of "free trade" until it threatens some deep-pocketed special interest group.

  • by Anonymous Coward on Tuesday March 19, 2013 @12:41PM (#43214349)

    It would be nice if an author now and then would actually find an editor before self-publishing.

    I've had a less than satisfactory experience when it comes to my purchases of self-published books.

  • by petermgreen ( 876956 ) <plugwash @ p> on Tuesday March 19, 2013 @12:51PM (#43214461) Homepage

    A few things to consider.

    1: there is a very large and not particaully rich country called india where english is one of the official languages (the other being hindi but afaict that isn't used much for technical stuff)
    2: some countries deliberately establish english speaking universities in the hope of being more attractive to foreign talent.
    3: Even in the UK which is english speaking and fairly rich afaict there is far less tolerance and pushing of overpriced textbooks than in the USA.

    Put all of these together and at a university level there is going to be a pretty big market for textbooks in english outside the USA and in general those outside america aren't prepared to pay as much as those inside america. The textbook vendors want to split the market so they can choose a different "most profitable price" for the USA and the rest of the world.

  • by Opportunist ( 166417 ) on Tuesday March 19, 2013 @01:05PM (#43214623)

    Convenience? eBooks may be much, but convenient, they are not. Well, at least the ones that are for sale.

    A dead tree edition is convenient. My buddy needs to look something up or wants to read it? Here's the book, return it when you feel like it. The only equipment he needs to read it is a pair of working eyes and the knowledge how to translate the printed symbols into meaningful expressions (aka "reading").

    With an eBook, first of all the question arises if we have the same kind of reader. If not, well, there's a pretty good chance that he won't even be able to read it, even if I can give it to him, which is anything but a given either because of omnipresent DRM.

    If you were talking about some kind of open document then yes, I could easily agree, they're very convenient. I have the PDF version of quite a few papers that I need on my laptop, and it's heaps easier to take those along when I travel. I can also easily hand over a copy to people who want to read them as well (before anyone asks, yes, I do have the right to do so). I can store thousands of pages that would fill a laptop case by themselves and have still lots of room for more and for other stuff.

    That would be very convenient if it applied to other documents as well. But eBooks are usually not really like that. They are locked down by artificial restrictions that strip them of the convenience they COULD have.

  • by Opportunist ( 166417 ) on Tuesday March 19, 2013 @01:08PM (#43214649)

    There are "open book cases" in my town now, think of it as some publicly accessible bookshelf where you put your old books and take home the ones that are there and are interesting to you. At first I thought they'd be plundered the nanosecond they are put up, but it seems to work out pretty well, and they see quite some use, too. One of those things is near the train station I frequent and no matter when I go there, someone's always standing there perusing the book, and people actually do bring books, too, not only take them out.

    I kinda cannot see anything like this with eBooks.

  • by Moses48 ( 1849872 ) on Tuesday March 19, 2013 @01:51PM (#43215253)

    Honestly, DRM is the problem. Let's say that we have no DRM, but we still have different standards. Let's say we're talking about pictures, instead of books. Well, you have PNG, JPG, GIF.... Hrmm it appears it's pretty trivial to have one player that can handle all the formats when you don't have the DRM restrictions. The formats would need to differentiate themselves in functionality, or the best would win. The main differentiation right now is the DRM schemes.

  • by Hatta ( 162192 ) on Tuesday March 19, 2013 @02:25PM (#43215707) Journal

    Not quite. They found that, since a corporation was just a collection of people, you could not restrict their right to free speech.

    What they forgot was that the very existence of a corporation is a privilege granted by government. They don't even have to exist at all, and in their absence people still have the right to free speech. Since the private individuals that comprise a corporation still retain all of their individual rights when the corporation's speech is restricted, it can't be

    Restricting corporate speech is not a restriction on individual rights. Permitting corporate speech is rightly considered as government assistance for that speech, and the government is not obligated to help you speak.

    I think we can probably engineer some way to have both a free corporate press and restricted corporate political speech - but I'm not smart enough to say how.

    How about we have neither? Free speech for individuals, and only individuals. A corporate press is simply too dangerous, individuals cannot compete with it. And I include the government in this too, the government as an entity should be making no speech at all, except for legislation and official policy statements. It certainly should not be lobbying its constituents.

  • by ShanghaiBill ( 739463 ) * on Tuesday March 19, 2013 @03:55PM (#43216725)

    Citizens United, the spawn of a beast with 18 legs and 5 boobs.

    They ruled that NO means NO in the following sentence:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    How is that not following the law?

  • by Penguinisto ( 415985 ) on Tuesday March 19, 2013 @04:39PM (#43217265) Journal

    I don't think that it matters much what their motivations are, but rather, the stated rationale they give towards reaching their end goal (that is, shouting "eBooks are convenient!" when in reality they just want to lock that puppy down and circumvent first-sale doctrine entirely).

    I'm sure they are convenient for both publisher (drops the cost of ink and paper to practically nada), and for many consumers (store it on a tablet!)

    OTOH, while you may find it convenient and such, there are a lot of us old curmudgeons out here who prefer their books on paper.

    The old-school books don't require batteries or eyestrain, no DRM, and the format won't ever become obsolete. Sure, they take up space and weigh a lot in quantity. So what? I've had a going personal library for decades now, and it's not a bother to me. I have this habit of upgrading the pile once in awhile. This means I get rid of the obvious crap (and any books I no longer have a credible use for), keep the good stuff (the awesome books I want to read over and over again over the years, old textbooks, etc) and over time my little personal library has gained in quality. As a bonus, no publisher or author can ever take them away from me - and not a few of them are even autographed. By the way, I can read 'em anytime I want, even when the power goes out.

    Long story short - you go right ahead and chain yourself to the publisher's profit motives. I prefer mine on paper, and I prefer them to be mine once I buy them.

"I prefer the blunted cudgels of the followers of the Serpent God." -- Sean Doran the Younger