Your Right To Resell Your Stuff May Be In Jeopardy
Via Jay J. Hector, Jennifer Waters writes at Marketwatch that the first-sale doctrine in copyright law is being challenged in a case scheduled to be heard by the Supreme Court. This doctrine allows you to buy and sell things like books, art work, CDs, DVDs and an old desk without getting permission from the copyright holders on these items:
Under the doctrine, which the Supreme Court has recognized since 1908, you can resell your stuff without worry because the copyright holder only had control over the first sale.Put simply, though Apple Inc. (NASDAQ:AAPL) has the copyright on the iPhone and Mark Owen has it on the book "No Easy Day," you can still sell your copies to whomever you please whenever you want without retribution.
That's being challenged now for products that are made abroad, and if the Supreme Court upholds an appellate court ruling, it would mean that the copyright 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.
...The case stems from Supap Kirtsaeng'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.
He then sold them on eBay, making upward of $1.2 million, according to court documents.
Wiley, which admitted that it charged less for books sold abroad than it did in the United States, sued him for copyright infringement. Kirtsaeng countered with the first-sale doctrine.
In August 2011, the U.S. Court of Appeals for the Second Circuit upheld a lower court's ruling that anything that was manufactured overseas is not subject to the first-sale principle. Only American-made products or "copies manufactured domestically" were.
"That's a non-free-market capitalistic idea for something that's pretty fundamental to our modern economy," Ammori commented.
The Supreme Court is scheduled to hear oral arguments on the case on Oct. 29.
Both Ammori and Band worry that a decision in favor of the lower court would lead to some strange, even absurd consequences. For example, it could become an incentive for manufacturers to have everything produced overseas because they would be able to control every resale.
Wiley is acting like a bully and should either change its pricing overseas or suck it up when an enterprising college student realizes he can put himself not only through college but into a mansion and a yacht by reselling their textbooks.
Furthermore, say this law is passed. Are we now going to have cops going around to garage sales to see if somebody's got an old ELO CD for sale?
More on the case on SCOTUSBlog:
Issue: How do Section 602(a)(1) of the Copyright Act, which prohibits the importation of a work without the authority of the copyright's owner, and Section 109(a) of the Copyright Act, which allows the owner of a copy "lawfully made under this title" to sell or otherwise dispose of the copy without the copyright owner's permission, apply to a copy that was made and legally acquired abroad and then imported into the United States?
This may be another law or regulation to be ignored until it becomes an issue, case by case.
There is precedent already: you may not sell guns commercially without Federal permission for each sale, but you may sell your privately-owned firearm (no matter how you got it, a point often lost on people) with no such restriction. It's just impossible to police.
The textbook example is null, in that publishers routinely supply customized books required of the student by the applicable college. Maybe 2/3 of the current school-year offering cannot be reused. This lets the school extort money from students.
Radwaste at October 8, 2012 2:13 AM
that was made and legally acquired abroad and then imported
This would point to what the specific case was, the items were bought overseas, not just made there.
So this wouldn't apply to your CDs or iPhones unless you bought them outside the US.
DrCos at October 8, 2012 3:27 AM
This has been going on for yearts in other areas, US product sold elsewhere for less than in the US. Will it affect on-line Canadian drugstores?
John A at October 8, 2012 5:20 AM
There's quite a difference between the headline's description of "the right to sell your stuff" and what this guy was doing. If he'd gotten one set of books and sold then, he'd never have been noticed, let alone caught or gotten in trouble. He was running a thriving business that was surely making a dent in the company's profits (albeit a small one)
Whether or not the company is within their rights to go after him is debatable. I don't really think they're thinking "next step, the garage sale".
Vinnie Bartilucci at October 8, 2012 7:20 AM
I think their editorial is needlessly hysterical. This wasn't a guy selling a used iPhone. He was buying thousands of books overseas, shipping them to this country and re-selling them. There are many countries which restrict that kind of thing, particularly countries that have a value added tax.
Hal 10000 at October 8, 2012 7:23 AM
Amy Alkon
https://www.advicegoddess.com/archives/2012/10/your-right-to-r.html#comment-3365408">comment from Hal 10000The law COULD be changed. Given that, why is this "needlessly hysterical," and why should laws be used to pick up after a publisher's overseas pricing? We have too many laws, and this is dangerous because there are countless ways a person we would consider law-abiding can be deemed guilty of something.
Amy Alkon
at October 8, 2012 7:29 AM
The name for this is "parallel imports", and there is only one reason for it: protectionism.
It makes sense for a company to price products according to the purchasing power of different areas. That's free enterprise, fair enough. Do consider, though: the company is unlikely to be losing money anywhere; if anything, it is making a huge profit in the richer country. If the price difference is high enough that parallel imports make economic sense, this applies pressure to the company to reduce excessive prices in the wealthier regions.
What does not make sense is the government getting involved, setting up trade barriers. This for two reasons:
First, a government that prevents parallel imports is punishing its own population, by forcing them to pay artificially high prices.
Second, the way this is being enforced is applying copyright for the same product based on where that product was produced. This makes no sense at all, and it blatantly violates the established rights of consumers.
It doesn't matter whether the guy in this case resold 1 book or a million books. It's only a matter of degree; the principle remains the same.
a_random_guy at October 8, 2012 8:03 AM
Acctually it would Dr Cos, because if they were made outside of the US and sold to US distributors, then those distributors have the right to resell you the merchandise but you would not have the right to resell it yourself
lujlp at October 8, 2012 9:19 AM
Read the update again - which prohibits the importation of a work without the authority of the copyright's owner (my emphasis, naturally).
Importation is what would be prohibited if they decided that 17 USC 602(a)(1) overrode 17 USC 109(a).
People selling things they own, in the US, and did not import in violation of 17 USC 602(a)(1)?
Are not importing, and are thus in every case still covered by the First Sale Doctrine.
It might be a bad idea to protect market segmentation in law, or it might not (I'd lean on pure libertarian grounds to "bad") - but in any case this court decision won't affect garage sales and inside-the-US resale, because 602(a)(1) only prohibits the act of importation.
Sigivald at October 8, 2012 3:32 PM
I have heard of these copyright laws being in jeopardy.
Except it was a completely different case. I believe what I had read was about Costco buying cheaper watches overseas and then re-selling them in the U.S.
I'd cite a source but I don't remember when and where I read about this.
Cat at October 8, 2012 6:14 PM
Off all the branches of the law, IP probably has more to do to catch up with the current state of the world than any other. And most of our legislators are more than happy to accede to our wishes. Darrell Issa, whom I generally do not like, excepted.
doggone at October 8, 2012 10:32 PM
People actually buy and use textbooks? What a waste of money. I don't remember having bought a single textbook throughout my college years. And I don't even remember touching any textbooks by publishers like wiley or mcgraw hill or any of those supposedly good names.I wonder why those textbooks are even considered good. I can hardly make any sense of those books which have 1 page of useful stuff spread over 50 pages
Redrajesh at October 13, 2012 3:58 AM
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