Speak Out Against Copyright Holders Destroying True Property Rights
from the can-you-resell-your-stuff? dept
For a while now, we've been following a series of very scary court cases that could take away your ability to sell physical products you own, by using a bizarre interpretation of copyright law by the courts. You can click back on that link to read some of the background, but the short version is that courts are suggesting that if a physical product is manufactured outside the US, but anywhere on it includes something covered by copyright (an etching, content, software, etc.) then the entire product cannot be sold without permission from the copyright holder. The reasoning makes so little sense as to be unbelievable. Basically, it says that those products weren't made under US copyright law -- so they don't get "first sale" rights -- but they are still covered by copyright law, so selling them is copyright infringement.This is nonsensical for any number of reasons. Unfortunately, the Supreme Court is about to hear the latest such case, after ending up with a split court the last time around. The reason it was split was because Justice Kagan recused herself, due to being involved in the case prior to becoming a Justice. Her involvement? Penning the filing of the US government against first sale rights. So it's very possible that she'll continue to retain that viewpoint on the court and basically kill off your ability to resell any good manufactured outside the US without permission. This is scary stuff.
While the issue is before the court, it's still important to get people to speak out about this. A few public interest groups have put together a petition site called You've Been Owned: Don't Let Copyright Trolls Steal Our Property Rights! and Citizens for Ownership Rights. The goal is to get the Obama administration to actually recommend preserving first sale rights (contrary to its earlier position). And, failing that, get Congress to change the laws to fix this problem which will drive many American manufacturers to move overseas. This is, of course, part of the real problem: the language of the statute is awkward in a way that lets the court come to a completely nonsensical and contradictory result.
What's important to recognize is that, for all the talk by copyright maximalists to falsely claim that copyright is no different than real property, and to insist we must "defend property rights" for copyright, here's a true case of property rights being under attack -- and it's because of an overly aggressive use of copyright. The idea that you don't actually own what you bought is an anathema to true property rights. That companies may be able to use copyright law to block you from selling used goods is a massive encroachment on individuals' property rights. If all those copyright maximalists truly believed in property rights (rather than the truth: that they support a government granted monopoly privilege that benefits themselves) they, too, would support this effort against the demolition of first sale rights.
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Filed Under: first sale doctrine, property, resale, scotus
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I think I'm trolling but I can't be certain as I'm new to this.
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(Also, why did my previous 2 comments disappear?)
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If a young child has imaginary friends, that's OK for a while, but that child should have a good number of real friends as well.
If that child promises to play with the real friends but uses the imaginary friends to drive away the real friends and break real friendships, that's a serious problem.
Now replace "child" with "politician" and "friend" with "property". The scenario is still very troubling.
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A: logic, reasoning, and facts don't matter. Avoid using arguments that posses these properties
B: who cares about punctuation and capitalization. even spelling is not important. if you mispell a word don't worry about it.
C: if you don't have a valid point to make then you sentences should be so ambiguous that they confuse people into thinking there is a valid point there somewhere. also run on sentences and poor grammar are a plus because those who employ shills will love you for it.
D: you seem overqualified to be a shill. you need to get much much much dumber. catch phrases like economic growth engine and jobs are good but you must remember to use personal attacks against mike and anyone who disagrees with you as well. your sentences make too much sense and they need to resort to something like pirate mike, you idiot shill for google, you want to defend property rights yet you're against intellectual property rights. what the heck, stupid shill pirate, you just want to steal everything from the poor starving artists (poor starving artists is a plus) and think that you're defending property rights when your defending stealing.
Any questions?
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It is, in fact, the bad grammar and spelling that make a statement much easier to trademark. So, remember not to say YUUUP! or You're Fired (Git 'er Done!).
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...in Asia.
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Then some bright entrepreneur would show up and sell stuff you can resell and wipe out the other companies.
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And when you buy, you would then have to consider, is it worth buying for life, even if the life expectancy is 2 days because you can't resell it? Gives a whole new look to the meaning of buying domestically.
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Trying to use laws and propaganda to bolster imaginary property rights is actively damaging and undermining the real thing.
Theft is no longer depriving people of goods or currency but now is about enjoying the use of something for which you have not paid a rights holder.
So, soon, we should have the situation where listening to the radio or watching network television should be illegal.
"Ah, but no, with radio or television, someone has paid the rights holder on your behalf, so you see, it is different."
So now the theory is that if you have a reasonable belief that a host or broadcast have paid for the rights you are ok?
"Yes"
Belief based law, the best you can buy and so flexible.
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So, in the case of the CD with unauthorized songs, that's be problematic. Because the CD itself is cheap relative to the unauthorized songs.
But in the case of the shampoo bottle with an infringing label, not a problem. The value of the label is tiny compared to the value of the shampoo, so suing for copyright infringement is inappropriate.
Another possibility -- use "actual damages" for copyright infringement and proportion it accordingly. So in the case of the shampoo bottle, the actual damage of using a copyrighted label would probably amount of pennies. If the right holder wants to sue, they can, but the damages probably wouldn't justify the legal expenses.
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Think of the...
OMG!
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To be fair, both types of property rights are fundamentally government granted monopoly privileges that benefits those who hold them.
With actual property it is just about acceptable due to the finite nature of physical goods and the need to apportion them to the best effect. Not actually because property rights achieve this well, but apart from the occasional correction due to public need the other possible solutions are no better and many are worse.
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So all it takes is a manufacturer making and exclusive sales deal to a 3rd party* import/export company? I'm sure that will never happen.
*run by the manufacturer's CEO's golfing buddy
This is less about destroying first sale rights generally and more about preserving segmented markets
So, two birds with one stone, eh?
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I mentioned this in an earlier thread on the subject, but I actually think this is an interesting place where the Techdirt positions are in conflict. When the SSRC report in Piracy in Emerging Economies came out, it was championed as vindicating business model solutions to infringement rather than legal solutions. Specifically, it demonstrated that media was simply priced far too high in emerging economies, leading directly to piracy, and the solution was to make media more affordable. But if media was universally priced at levels acceptable to the most impoverished nations, its manufacturers would likely never recoup the costs of development. So the solution was to segment the markets, and price each regional offering according to what its population could afford. But if anyone can just pluck up the copies available in the cheapest market and resell them in the most expensive market, that business model is destroyed, and we've taken away one of the main methods for copyright holders to actually provide affordable options to developing nations.
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But we're not talking about the Omega case any more. This case said the opposite of this. It said it doesn't matter. If the product is made outside the US... no first sale.
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That...that... that's just wrong... ;)
Best of luck on the exam, and remember it only gets more interesting (and insane) from now on.
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So what you are saying that you are a Marxist?
It sounds like this is what you are advocating, 'taking' from each according to his ability (to pay, by pricing higher) and 'giving' it all to your corporate masters (since they really really NEED that new island and cabin cruiser for their next big corporate party).
Corporatism... the new communism (see there really are terrorists behind this mess whole mess, the EU wasn't that far off, we have just been looking in the wrong places, the real 'terrorists' (aka threat to our way of life) are sitting in CEO and Executive board positions, collecting fat 'bonus' checks for decimating our economy and shifting as much of it as they can to their corporate buddies).
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Maybe a bit of a stretch, but I can't say I don't believe they wouldn't try if they knew they could kill the used market.
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I don't believe that's correct under the Kirtsaeng ruling.
Note 44 in that ruling reads:
You are correct that the *Omega* case said that. But not the court in Kirtsaeng. So I think you're underplaying the actual level of concern here. It *is* a pretty dire situation.
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Here we have textbooks made in the Far East, which textbooks were then shipped to the US.
As Justice Ginsburg noted in her L'Anza concurrence (which was a 9-0 decision), the court did not decide what the outcome would have been had the products bearing the copyrighted work been manufactured overseas and then shipped to the US.
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Perhaps there are some highly unique circumstances where a foreign sale does not constitute a "first sale" under US law, but the litany of "panics" raised by some commenters do not withstand even modest scrutiny.
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Highly unique like... selling books bought outside the US and trying to resell them inside the US?
Oh wait, that's not unique at all.
As per usual, you try to downplay a massive problem. I don't understand why you seem to have no undersanding of copyright law, and yet pretend you do.
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attempts to use Omega v. Costco as if it has precedential effect, and in its citation of caselaw in both its petition and reply identifies a "smidgeon" of cases actually decided by the Supreme Court, only a very few of which (e.g., Boobs-Merrill v. Straus, L'Anza v. Quality King) relate to substantive copyright law. The few other Supreme Court cases pertain to either other examples of unrelated legislation using phrases similar to those in Title 17, or else trod the path on the patently obvious rules associated with statutory construction.
Obviously you find the petition and reply persuasive. I am not sanguine that this is the case. This is not to say that I find them unpersuasive, but only that in my experience I believe that Petitioner faces an uphill battle. Patry's treatise cuts against the Petitioner. Nimmer's (Melville and David) treatise cuts against the Petitioner.
Your reliance upon Note 44 is inapt. While the circuit court does note that Appellant's (now Petitioner's) argument "...that this could not possibly have been Congress’s intent", the 2nd Circuit did not by into what may have been Congress' intent because the court's role is to interpret statutory language, and not to engage in idle speculation about what Congress may have intended.
You call the problem "massive". Perhaps it may seem that way, but it does bear mentioning that many of the "panics" raised by the Petitioner and supporting amici do not reflect how the process of development, manufacturing, and sales typically occur when the developer is a US company.
If you insist on casting aspersions in my direction, gratuitously mocking my bona fides with respect to US copyright law, at the very least you should demonstrate more that a general knowledge of copyright law and acknowledge that you have a strong bias in favor of limiting its scope to the absolute minimum possible.
I happen to agree with the comments submitted by the AIPLA. It is an issue that deserves consideration and guidance in order to enable those engaged in commerce to have a "rule" that is predictable. Uniformity of the law throughout or nation is an imperative. As for what that rule would or should be, I express no opinion.
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And we have the annoying fact that the US thinks they are the holy center of all universe and foreign things are somewhat subject to different common sense, physics etc. Annoying and worrying.
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two party system, FTW!
So, if communism is when the people who control the government also control the means of production, what do you call it when the people who control the means of production also control the government?
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Re: two party system, FTW!
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It's not so strange. The right wing has no interest in individual rights, property rights, etc., except for certain specific items (guns, for example) or for corporations.
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Corporate fascism.
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Fascism.
"Fascism should more properly be called corporatism, because it is the merger of state and corporate power." -- Benito Mussolini
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Capitalism
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Re: two party system, FTW!
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How will I know if I'm a criminal?
Looks like eBay and Craig's List are doomed...
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I actually spent 5 minutes looking around trying to find something I thought might be open to reselling under this. Pretty much without fail I could find someway to torture out a line of reasoning that probably could be argued on copyright grounds and knowing the penchant for lawyers and courts lately...
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It doesn't matter, you're a criminal no matter what.
http://xkcd.com/488/
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There are more other thing they are plan to do like
-Libraries would not be able to lend out books.
-Redbox and Blockbuster would not be able to rent out movies
-Donating clothes to charitable organizations would be cnsidered unauthorized distributions
I could not belivie that libaries cant lend a book! are you crazy? donating clothes is illeagl? cant rent movies? what the hell wrong with those company!?!?!? greed!
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Scary
Given all of that, it's obvious that we should expect the worst. SCOTUS will get rid of our first sale rights, and then Congress will say they are fixing it by passing a law making copyright last twice as long, eliminates fair use, raises the statutory damages, makes all infringement criminal, and allows warrantless surveillance to detect copyright violations.
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autos...???
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Re: autos...???
I mean you can't very well use a license as collateral...
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Re: autos...???
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also: where did you think smuggling came from?
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Labels
(1) Costco legally bought Omgea watches abroad at a lower price and resold them in the U.S. Omega sued for copyright infringement of the etching on the back of a watch.
(2) A distributor sold legally purchased shampoo bottles within the U.S. The shampoo manufacturer sued over the LABELS on the bottle.
Labels! Under that logic, EVERY PACKAGED GOOD is subject to copyright law.
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Lotsa jobs modding things for the US market; too bad they won't BE in the US.
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This is what happens when laws are written (intentionally?) in a vague or broad manner that invites creative lawyers to stretch them beyond their original purpose.
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Um, no one is arguing that copyrights are just like real property. Real property refers to land, you know. Obviously an intangible piece of property like a copyright is different than a tangible piece of land. Both are examples of property, but they are different types of property. In some ways they are similar, and in some ways they differ. You're just exaggerating and being extreme, setting up a straw man fallacy.
The idea that you don't actually own what you bought is an anathema to true property rights.
Nope. You do own exactly what you bought. For you to whine about someone not being able to exercise rights in the thing he bought that are not his to exercise is anathema to true property rights. You are suggesting that people should have rights that they didn't bargain for. You've got it completely backwards. Sorry, Pirate Mike, but you're just wrong.
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As for 'owning what you bought', are you even remotely familiar with the precedent that Mike is referring to? The specific case is that Costco BOUGHT watches overseas, then SOLD them in the U.S., and the courts ruled that they were violating the copyright on a little image on the back of the watch.
You are so wrong and backwards, I'm amazed you manage to take even moderately meaningful quotes, because you clearly have less reading comprehension than a ritalin-addled 6 six year old. This is about real property, stuff you can hold in your hand, even WEAR on your goddamn hand, that the courts have held you do not have the right to sell. All other facts - where it was manufactured, where it was purchased - are absolutely ephemeral to the core matter here; that it under current law companies can prevent you from selling a piece of real property that you legally purchased.
If you honestly believe that it is reasonable to state that the right to sell real property is something that must be 'bargained' for when you purchase it, I have to ask how much you've paid in your life to the manufacturers of anything you've ever sold.
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I know "Mike is not arguing that copyright is like real property." What I said was that Mike is setting up a straw man by claiming copyright maximalists say that copyright is the same as real property. Both are types of property, but they are obviously not the same in all ways.
As far as owning what you bought, I'm exactly right. When you buy a piece of property, that property may be encumbered by the rights of others (such as an easement or a copyright). Or it may be subject to certain laws and regulations. You buy that property with whatever conditions are attached to it.
Insulting my intelligence looks silly when you don't even know what "real property" is. You get EXACTLY what you bargained for. You have said NOTHING that disproves my point. If you didn't bargain for, say, the right to import a copyrighted image, even if on the back of watch, then you don't have that right since you didn't bargain for it. It's really, really simple.
What Mike is advocating is anathema to property law. He thinks people should be able to exercise proprietary rights that they do not possess. That's the definition of being against true property rights.
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Mike's entire point is that there is no "right" to import a copyrighted image - you cannot bargain for it, it does not exist, and the courts have accepted some crazy interpretation of the law that brought it into being with no precedent or possible intention on behalf of the people who made the law. There is no condition attached, and it is an anathema against true property rights - to borrow the turn of phrase - to suggest that there should be.
How can you possibly argue that copyright covers whether you can take a physical good from one place to another, or whether you can sell it? The copyright holder placed the mark on the physical good, then sold it. What business is it of theirs if I choose to sell it, or where. No "copy" is being made for them to exert any "rights" over.
My friend moved to Japan and brought his car over - I'm sure the manufacturer's logo is covered by copyright and trademark. Should he be precluded from selling it, or should he be legally required to "bargain" for that right, or ship the car back to the US before selling it?
It is crazy to argue that copyright law should have any place in limiting what actions can be taken after the sale of a physical good. Copyrights are NOT true property, and for them to reduce the rights you can exert over the property you own is, again, not compatible with being in favor of strong property rights. I suppose that could be the crux of your argument; that the rights from copyright are just as "real" as any rights you have with respect to, say, a watch, but that is all on its own against true property rights. A legal contrivance created by the government should not restrict what I as a private citizen or company can do with something after I purchase it. The watch is property no matter how you look at it; a copyright is "property" because of congress. I don't think it is at all incompatible with being in favor of property rights to feel that the rights created by copyright should be subordinate to those associated with physical property
All that said, thank you (really, sincerely) for not being an ass and just using the real property thing to ignore everything else.
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Which is why Costco did not get sued for selling watches they bought and owned?
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*Ebay
*Amazon
*pawn shops
*Gamestop
*Salvation Army
*Goodwill
*Swap meets
*Garage Sales
Whoa, that list sort of rhymed. I'd say get Dan Bull on writing a song about it if this wasn't such a specifically American matter of law.
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*shrugs*
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You guys aren't getting it
It will be good for the poor. "Hey Jim, you're homeless, how did you end up with a Porsche?" "Well that guy just bought a Mercedes, and since he couldn't sell it, he just gave it to me."
Gifts to charity would go up along with the tax write-offs that go with them.
Win-Win
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And prices will still stay up. You don't actually believe the industry giving the windfall to the consumer?
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The environment is so effed.
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The only thing I can think off is enforcing my booth on the butt of Espinel.
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Do you have democracy?
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Life, liberty, and property were supposed to be guaranteed, but "democracy" has taken all three away in the name of "safety," "fairness," etc.
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Time to face reality -- we're being systematically dismantled and destroyed from within.
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first sale
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