Speak Out Against Copyright Holders Destroying True Property Rights

from the can-you-resell-your-stuff? dept

Tue, Jun 26th 2012 2:07pm — Mike Masnick

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

101 Comments

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Anonymous Coward, 26 Jun 2012 @ 2:15pm

This is an economic growth engine! Think of all of the jobs this will create when people are no longer able to sell second hand goods.

I think I'm trolling but I can't be certain as I'm new to this.
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Prashanth (profile), 26 Jun 2012 @ 2:16pm

Re:
It's a pretty good start at trolling. Welcome to the wide world of TROOOOOOOOOLOLOLO!

(Also, why did my previous 2 comments disappear?)
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Prashanth (profile), 26 Jun 2012 @ 2:18pm

Re: Re:
Never mind. This was what my original comment was supposed to say:

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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Anonymous Coward, 26 Jun 2012 @ 2:38pm

So if you buy products outside the US and this is supported that you have lost right of first sale, how long do you think it will take for every matchstick maker in the rest of the world to add a copyright?

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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Anonymous Coward, 26 Jun 2012 @ 2:40pm

Anti-competitive laws, including IP laws, are an abomination that we must seek to destroy.
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Anonymous Coward, 26 Jun 2012 @ 2:42pm

This is the really cool thing about trying to change meanings to suit an unsuitable purpose.
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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Anonymous Coward, 26 Jun 2012 @ 2:43pm

As someone you would call a copyright maximalist, I have a strong belief in property rights. It seems like the Omega watch case is a big stretch. If I sold my iPod with 1000 legally acquired songs, that should not conflict. It's a real mess when you talk about re-selling devices with infringing content though. Then selling an iPod with infringing content is pretty much the same as a CD or thumb drive. While it's probably unenforceable at a low level, I can see problems with resellers selling a hard drive full of infringing material claiming to be protected because they're actually selling the drive and the content is incidental.
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Jeff (profile), 26 Jun 2012 @ 2:45pm

Think of the...
Flea markets!!!1! Where will they go???1!??

OMG!
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Anonymous Coward, 26 Jun 2012 @ 2:48pm

"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)"

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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DandonTRJ (profile), 26 Jun 2012 @ 2:51pm

Keep in mind that the product doesn't just need to be manufactured outside the U.S., but purchased outside the U.S. as well. If someone manufactures copyrighted media in China, but then imports it to the U.S. to sell domestically, they have consented for U.S. copyright law to govern the sale and first sale rights will attach. The only way manufacturers will be able to strip away first sale rights domestically is if they never sell their products domestically. This is less about destroying first sale rights generally and more about preserving segmented markets (where they don't want cheaper versions of their products produced specifically for third-world consumption to compete with the higher-priced versions in first-world markets, where they know the population can afford the mark-up). Not saying it can't be perniciously used, but it's not quite as dire as I think some people are interpreting.
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Anonymous Coward, 26 Jun 2012 @ 2:51pm

The "Omega" case had nothing to do with the watch, per se. It was limited solely to the "work" on the back of the watch. Had that "work" been removed before importation into the US, copyright law would have had no applicability.

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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mikey4001 (profile), 26 Jun 2012 @ 2:54pm

two party system, FTW!
For all the perceived threats that the Obama administration allegedly poses to the good people of 'Murrka (homosexual indoctrination, free dope, dead babies, no borders, muslim conspiracy, etc.), it seems strange that the right wing in congress is deafeningly silent on matters such as this. This case involves individual rights, property rights, government overreach, activist courts, and, of course, the Hollywood Agenda. Seems that this would be right up the old conservative wheelhouse. It's even an election year. Yet, all I hear is crickets and tumbleweeds.

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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The Original Anonymous Coward (profile), 26 Jun 2012 @ 2:54pm

How will I know if I'm a criminal?
If I sell something at a yard sale or flea market, how will I know if the item has a copyrighted something-or-another somewhere in it or on it?

Looks like eBay and Craig's List are doomed...
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Chosen Reject (profile), 26 Jun 2012 @ 2:54pm

Scary
I'm very conflicted. On the one hand I want the Supreme Court to rule based on the law. On the other hand, I'm worried about what will happen if Congress touches copyright law (I can make a single line code change, but I don't think Congress has ever been able to do that). On the other hand, if the Supreme Court had any idea of what the Constitution actually said then it'd be obvious that getting rid of first sale rights is not promoting the progress.

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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The Original Anonymous Coward (profile), 26 Jun 2012 @ 2:56pm

Re: two party system, FTW!
Crony capitalism... Both major parties suffer from this malady.
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big al, 26 Jun 2012 @ 2:57pm

autos...???
hummmmm... i buy a bmw which is made in germany,which has copyrighted items all over it,which is now "sold"to me and this court decision means i must get bmw's permission to sell as i only have a "license" to drive it but i don't own it...OH this is gonna be fun.....(sigh)
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Minimum Wage Shill, 26 Jun 2012 @ 2:57pm

Re:
Here are a few pointers at being an IP extremist shill.

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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mikey4001 (profile), 26 Jun 2012 @ 2:58pm

Re:
We've been doing that years. If a cop "believes" he has probable cause, he doesn't need a warrant. If I "believe" I feel threatened, I can preemptively defend myself.
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lol, 26 Jun 2012 @ 2:59pm

can you say unenforcable law?
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Anonymous Coward, 26 Jun 2012 @ 3:01pm

Re: Re:
oh and i forgot to mention that fearmongering is good too. throw around the word terrorism here and there and youll be golden
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Andrew F (profile), 26 Jun 2012 @ 3:01pm

Labels
Just to illustrate how ridiculous this is, the actual two cases that gave rise to this were:

(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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Anonymous Coward, 26 Jun 2012 @ 3:02pm

Re: Re: Re:
( http://www.techdirt.com/articles/20120626/09565719492/eu-parlamentarian-gallo-acta-dissent-soft-form -terrorism.shtml )
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that whould be understandable, 26 Jun 2012 @ 3:02pm

Re:
if it were dealing with something besides these vultures.
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mikey4001 (profile), 26 Jun 2012 @ 3:04pm

Re: Re:
who cares about punctuation and capitalization. even spelling is not important. if you mispell a word don't worry about it.

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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Andrew F (profile), 26 Jun 2012 @ 3:07pm

Re:
One possible solution -- compare the value of the infringing content vs. the value of the rest of the property.

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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Josh in CharlotteNC (profile), 26 Jun 2012 @ 3:10pm

Re:
Think of all of the jobs this will create

...in Asia.
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anymouse_cowherd (profile), 26 Jun 2012 @ 3:11pm

Re: How will I know if I'm a criminal?
I'll just be safer to assume it has some copyright attached and you should for the good of the children, country and humanity just toss it...

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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anymouse_cowherd (profile), 26 Jun 2012 @ 3:14pm

Re: autos...???
Wouldn't that also basically end the ability to get an auto loan?

I mean you can't very well use a license as collateral...
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Baldaur Regis (profile), 26 Jun 2012 @ 3:14pm

Re: Labels
Given these two cases I predict a glowing future for companies manufacturing (case 1): metal grinders; and (case 2): Goo-B-Gone, or other sticker removers.

Lotsa jobs modding things for the US market; too bad they won't BE in the US.
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John Fenderson (profile), 26 Jun 2012 @ 3:16pm

Re:
So if I purchase a chinese company's product from their china-based website and have them ship it to the US (I actually do this for certain things), does my resale right remain intact? Does that differ from if I fly to China, buy the product, and fly it home myself?
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John Fenderson (profile), 26 Jun 2012 @ 3:18pm

Re: two party system, FTW!
it seems strange that the right wing in congress is deafeningly silent on matters such as this.

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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Josh in CharlotteNC (profile), 26 Jun 2012 @ 3:21pm

Re:
Keep in mind that the product doesn't just need to be manufactured outside the U.S., but purchased outside the U.S. as well.

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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velox (profile), 26 Jun 2012 @ 3:21pm

Re: Labels
Don't forget about the copyrighted firmware that is in just about everything that has electronic components -- not just your printer and camera, but your washer and your refrigerator, etc.

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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Mike42 (profile), 26 Jun 2012 @ 3:22pm

Re: two party system, FTW!
I think you're looking for this. Also see the nice movie about it on archive.org.
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Anonymous Coward, 26 Jun 2012 @ 3:23pm

Re:
I don't think you are being quite creative enough - most manufacturers don't sell their products directly to the end consumer; they sell to a retailer who sells to the consumer. The manufacture takes place in China, the transfer of ownership takes place in China (FOB factory instead of FOB destination?), and an explicit permission from the manufacturer (read: copyright holder) to the retailer allowing them to resell it and no permission to the end consumer.

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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DandonTRJ (profile), 26 Jun 2012 @ 3:24pm

Re: Re:
No and no. In both case, you're purchased a foreign product, not manufactured under U.S. copyright and not made subject to U.S. copyright by the manufacturer itself (or someone authorized on their behalf) lawfully importing it. The only way the Chinese-made goods would be subject to first sale here in the U.S. is if the manufacturer authorized them to be brought into the U.S. for sale. I think there are some exceptions in the law for small quantities of goods purchased for personal use, but not for commercial operations (like someone independently setting up shop to buy foreign-made goods specifically to resell them to U.S. buyers).
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Josh in CharlotteNC (profile), 26 Jun 2012 @ 3:24pm

Re: How will I know if I'm a criminal?
how will I know if the item has a copyrighted something-or-another somewhere in it or on it?

It doesn't matter, you're a criminal no matter what.

http://xkcd.com/488/
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terry (profile), 26 Jun 2012 @ 3:27pm

Re: Think of the...
What will you do with your cars once they are old and broken? Will they just accumulate?
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Capitalist Lion Tamer (profile), 26 Jun 2012 @ 3:33pm

Re: Re: Think of the...
Rural citizens use these cars as lawn ornaments. You could always take yours there, along with a minimum of four (4) cinder blocks.
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Anonymous Coward, 26 Jun 2012 @ 3:33pm

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.

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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Anonymous Coward, 26 Jun 2012 @ 3:33pm

Re:
There is a big difference, you can defend your home, car or any other physical property, you cannot defend imaginary property
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Anonymous Coward, 26 Jun 2012 @ 3:39pm

So they're trying to destroy...

*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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Anonymous Coward, 26 Jun 2012 @ 3:40pm

Re:
Yeah, they just let everything come in through the ports unwatched. Totally.
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MrWilson, 26 Jun 2012 @ 3:40pm

Re: two party system, FTW!
"what do you call it when the people who control the means of production also control the government?"

Corporate fascism.
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DandonTRJ (profile), 26 Jun 2012 @ 3:40pm

Re: Re:
As soon as the manufacturer authorizes someone in the chain of distribution to bring the products into the U.S., the right of exhaustion (first sale) is triggered. That's what the Omega case spelled out. Unless the manufacturer plans to never offer their product in the U.S. and just assume everyone who wants it will import it from abroad, they'll have to accept some first sale attachment at some point.

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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Anonymous Coward, 26 Jun 2012 @ 3:42pm

Re:
"We don't withstand even modest scrutiny!" is the Techdirt mantra.
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Mason Wheeler, 26 Jun 2012 @ 3:42pm

Re: 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?

Fascism.

"Fascism should more properly be called corporatism, because it is the merger of state and corporate power." -- Benito Mussolini
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Anonymous Coward, 26 Jun 2012 @ 3:45pm

Looks like eBay, Etsy, craigslist, Half Price Books, Amazon and others will be forced to shut down.
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DandonTRJ (profile), 26 Jun 2012 @ 3:45pm

Re: Re:
If everyone in the official chain of distribution were located outside the U.S., this would work. But that would mean the copyright holders would have to accept not having a robust domestic market for their goods in return for stripping away first sale rights, since the only way to purchase their goods would be by either direct import or from an unlawful domestic importer/reseller. I can't imagine that making much market sense for most companies. Ultimately, I believe they're less interested in the casual buyer's ability to resell what they bought than they are with competing against their own products as sold by commercial-scale resellers who are plucking up versions of the product meant for low-income regions to flip in high-income nations.
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Anonymous Coward, 26 Jun 2012 @ 4:07pm

Re: Re: Re:
How would this apply to the reselling of an import good made after the original importation? IE. say someone in the US imports a game from Japan and then sells it to a used game store where it is subsequently resold?
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Anonymous Coward, 26 Jun 2012 @ 4:19pm

Re: Re: Re: Re:
And this is in terms of the importation of a single copy for personal use like the law supposedly allows, where it is used by the original owner for several years before being resold.
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DandonTRJ (profile), 26 Jun 2012 @ 4:20pm

Re: Re: Re: Re:
It could theoretically block it, or it least dangle liability over it. Things become very messy when you start having many links in the chain of title and awareness of the good's origins become shrouded in mystery to subsequent buyers, though. Right now, the chief area of enforcement in this field is when manufacturers create versions of their product for multiple regions at varying price points they believe are appropriate for those regions; they want to prevent resellers from snatching up copies in low-priced regions to flip in high-priced regions. Enforcement seems unlikely against people selling individual copies of works that aren't subject to that particularized business plan, but just having the uncertainty there is chilling enough. This is definitely an area of copyright law that needs to be vigilantly supervised to curtail abuse, and I'm not sure courts are cognizant of just how much collateral damage they might do in propping up these business models.
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Hephaestus (profile), 26 Jun 2012 @ 4:20pm

Re: Re:
I was thinking of the end result. Ford, GM, etc moving to Asia. No one being able to sell their used cars or car parts. No ability to transfer ownership. The whole country would become a car grave yard. The price of steel and aluminum would go through the roof. All manufactured goods would become prohibitively expensive.

Then some bright entrepreneur would show up and sell stuff you can resell and wipe out the other companies.
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Anonymous Coward, 26 Jun 2012 @ 4:26pm

Re: Re: Re: Re: Re:
So I guess if I want Famicom games from Japan then I better import them one at a time FROM Japan and never resell them ever?
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Anonymous Coward, 26 Jun 2012 @ 4:35pm

Re: How will I know if I'm a criminal?
Therein lies the problem.
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VMax, 26 Jun 2012 @ 5:05pm

You guys aren't getting it
Loss of first sale would be a win. Part of the equation of why we pay high prices is because we think of re-sale value. Re-sale is impossible, initial value goes down. "I'm sorry, I'm not going to pay $X.XX for this because I'll be stuck with it and have to throw it away when I'm done."
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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Anonymous Coward, 26 Jun 2012 @ 5:10pm

Re: You guys aren't getting it
Not unless everyone wants to give me all the old-school games in the world before I can't buy them again ever anywhere.
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Mike Masnick (profile), 26 Jun 2012 @ 5:43pm

Re:
Keep in mind that the product doesn't just need to be manufactured outside the U.S., but purchased outside the U.S. as well.

I don't believe that's correct under the Kirtsaeng ruling.

Note 44 in that ruling reads:

Kirtsaeng argues that this holding is undesirable as a matter of public policy because it may permit a plaintiff to vitiate the first sale doctrine by �manufactur[ing] all of its volumes overseas only to then ship them into the U.S. for domestic sales.� Defendant-Appellant�s Br. at 21. Phrased differently, it is argued that any such decision may allow a copyright holder to completely control the resale of its product in the United States by producing its goods abroad and then immediately importing them for initial distribution. In this sense, the copyright holder would arguably enjoy the proverbial �best of both worlds� because, in theory, the consumer could not rely on the first sale doctrine to re-sell the imported work. In other words, the copyright holder would have an incentive to�outsource� publication to foreign locations to circumvent the availability of the first sale doctrine as a defense for consumers wishing to re-sell their works in the domestic market. The result might be that American manufacturing would contract along with the protections of the first sale doctrine. Kirtsaeng argues that this could not possibly have been Congress�s intent. We acknowledge the force of this concern, but it does not affect or alter our interpretation of the Copyright Act.

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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Mike Masnick (profile), 26 Jun 2012 @ 5:46pm

Re: Re: Re:
As soon as the manufacturer authorizes someone in the chain of distribution to bring the products into the U.S., the right of exhaustion (first sale) is triggered. That's what the Omega case spelled out. Unless the manufacturer plans to never offer their product in the U.S. and just assume everyone who wants it will import it from abroad, they'll have to accept some first sale attachment at some point.

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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Mike Masnick (profile), 26 Jun 2012 @ 5:47pm

Re:
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

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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Chosen Reject (profile), 26 Jun 2012 @ 6:12pm

Re: You guys aren't getting it
Throw it away?! I don't think so bub! That's unauthorized distribution. What if someone found it in the dump? You'd be on the hook for $150,000. You have to keep it forever.
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Anonymous Coward, 26 Jun 2012 @ 6:14pm

If you eventually get tired of your stuff and you can't resell it or donate it for resale, then the only choice that people will have is to toss it once they're done.

The environment is so effed.
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Anonymous Coward, 26 Jun 2012 @ 6:14pm

Re: Re: You guys aren't getting it
Sorry didn't see yours before posting.
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DandonTRJ (profile), 26 Jun 2012 @ 8:04pm

Re: Re:
I actually haven't read the full Kirtsaeng ruling, so thanks for pointing that out. IIRC, that case still revolved around Omega-like facts, correct? The guy bought foreign textbooks and resold them to U.S. customers? If so, the goods didn't make the "round-trip" described in Omega [lawful importation by the manufacturer], so the Second Circuit shouldn't have needed to address the defendant's argument as anything more than dicta. But you're right, once it gets to the Supreme Court, all bets are off.
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DandonTRJ (profile), 26 Jun 2012 @ 8:06pm

Re: Re: Re: Re:
If I weren't in the middle of preparing for the bar exam, I'd be reading Kirtsaeng right now so I could see why the hell the Second Circuit came to that conclusion. Can't wait to go back to reading about law I actually care about...
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Anonymous Coward, 26 Jun 2012 @ 8:35pm

Ways to enforce monopolies?

The only thing I can think off is enforcing my booth on the butt of Espinel.
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Anonymous Coward, 26 Jun 2012 @ 8:48pm

Re:
Mike is not arguing that copyright is like real property - it is the people who repeatedly refer to 'copyright infringement' as 'theft' and pursue lawsuits attempting to exclude first sale rights based on copyright that are conflating copyrights with real property.

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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Anonymous Coward, 26 Jun 2012 @ 10:04pm

Re: Re:
I see that you are a fan of the Petitioner and the amici filing briefs in support of the petitioner. The Petitioner cites an extensive number or law review articles, engages in a listing of all the terrible things that "may" transpire if the Second Circuit decision is not overturned,
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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Anonymous Coward, 26 Jun 2012 @ 10:11pm

Re: Re: Re:
There was no "round trip" in Omega as was the case in L'Anza. Omega manufactures its products in Switzerland and exports them internationally. L'Anza manufactures is products domestically and exports them internationally.

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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Anonymous Coward, 26 Jun 2012 @ 10:14pm

Re: Re:
The correct term is "personal property". "Real property" petains to land.
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Chargone (profile), 26 Jun 2012 @ 11:02pm

Re:
nah, actual property isn't a government granted monopoly. it's a pointy-stick granted 'monopoly'. you just outsource the pointy-stick-using to the government with your taxes.
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Chargone (profile), 26 Jun 2012 @ 11:12pm

Re: Re:
... and the consequences when the entire population of the country ignores this nonsense, imports stuff anyway, and gets their stuff they already payed for confiscated at the border? (ok, yeah, i know a lot of people in the US probably don't import much of anything personally, so it's not the Entire population, but it's still gonna be significant, i think.)

also: where did you think smuggling came from?
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G Thompson (profile), 27 Jun 2012 @ 12:15am

Re: Re: Re: Re: Re:
Hang on... You are studying for the bar exam and you have enough time for coming in here and commenting ie: your also having time off from studying for 'a life'

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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G Thompson (profile), 27 Jun 2012 @ 12:22am

Re:
Only in America, the rest of the world can still sell 2nd hand goods.

*shrugs*
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techflaws (profile), 27 Jun 2012 @ 1:48am

Re: Re:
Especially not the ACs.
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techflaws (profile), 27 Jun 2012 @ 1:55am

Re:
Nope. You do own exactly what you bought.

Which is why Costco did not get sued for selling watches they bought and owned?
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techflaws (profile), 27 Jun 2012 @ 1:57am

Re: You guys aren't getting it
Re-sale is impossible, initial value goes down

And prices will still stay up. You don't actually believe the industry giving the windfall to the consumer?
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EU, 27 Jun 2012 @ 2:35am

Do you have democracy?
I'm wondering if US has democracy still?
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Niall (profile), 27 Jun 2012 @ 2:48am

Re: Re:
So when can we Stand Our Ground against this abomination?
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Ninja (profile), 27 Jun 2012 @ 3:49am

Re: Re: Re:
Nothing you said actually matters or mean something in this case. It doesn't matter where you bought any physical item, it is YOURS TO USE, MODIFY OR BREAK to your heart's content. The fact that even damn shapes can be copyrighted (see Apple vs Samsung) would be very problematic if the US chooses to part ways with the first sale doctrine and allows copyright holders to have a say on how ppl deal with their goods. Actually, as things are progressing lately, I support a full abolition of copyright. And I am usually the first one to agree we need protection mechanisms for intangible creations from commercial exploitation.

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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Ninja (profile), 27 Jun 2012 @ 4:12am

Re: autos...???
Nah, it's easy. Just be sure to sign for a license with the proper labels, studios, designers, [insert long list of patent, trademark and copyright owners here]. But please do not forget to add a public performance rights while at it so you can actually drive your gorgeous BMW around the town and show it publicly. If it's electric beware of the length of the cord!
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Anonymous Coward, 27 Jun 2012 @ 5:31am

Re: Re:
Real property means land.
� 8. Real Property

The term �real property� as it is used in this Restatement, means those interests in land described herein in �� 14-18 inclusive.
Restatement (First) of Property � 8 (1936).
real property.

(18c) Land and anything growing on, attached to, or erected on it, excluding anything that may be severed without injury to the land.
Black's Law Dictionary (9th ed. 2009).

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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Michael, 27 Jun 2012 @ 6:08am

In summary, this will render the first-sale doctrine meaningless, further encourage the outsourcing of jobs, attempt to criminalize US citizens, and extend corporate power to the point where they maintain control over products even after they've already been purchased.

Time to face reality -- we're being systematically dismantled and destroyed from within.
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ChrisB (profile), 27 Jun 2012 @ 6:34am

Re: Re: You guys aren't getting it
Supply and demand. Prices will fall to demand or companies will go bankrupt. I agree with him. If resale is impossible, rational consumers will not pay the high initial prices for goods like cars, mobile phones, bluray discs, etc. There is only so much money in an economy.
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Anonymous Coward, 27 Jun 2012 @ 6:36am

Re:
As a bonus, think of all the traffic etc. irritations that will be eliminated when all those pesky yard sale people are hauled away to prison for criminal for-profit copyright infringement.
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Anonymous Coward, 27 Jun 2012 @ 6:43am

Re: two party system, FTW!
Maybe the right wing is just hoping by their silence to get in on some of the content industry campaign contributions that the left wing has been enjoying for quite some time.
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Anonymous Coward, 27 Jun 2012 @ 7:49am

So what you are saying that you are a Marxist?
"In a higher phase of communist society, after the enslaving subordination of the individual to the division of labor, and therewith also the antithesis between mental and physical labor, has vanished; after labor has become not only a means of life but life's prime want; after the productive forces have also increased with the all-around development of the individual, and all the springs of co-operative wealth flow more abundantly�only then can the narrow horizon of bourgeois right be crossed in its entirety and society inscribe on its banners: From each according to his ability, to each according to his needs!"

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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Anonymous Coward, 27 Jun 2012 @ 8:23am

Re: Re: Re:
I apologize for assuming real property contains all things which are both property and real; s/real/physical/g

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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techflaws (profile), 27 Jun 2012 @ 8:24am

Re: Re: Re: You guys aren't getting it
Which only means the original prices where too high in the first place.
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Anonymous Coward, 27 Jun 2012 @ 8:45am

Re: Re: Re: Re:
Which just makes me wonder if I destroy the copyright image on the product, can I then sell it since there is no longer a copyright to transfer? If that proved true there'd be a sudden run on dremel tools and grinders!
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Anonymous Coward, 27 Jun 2012 @ 9:13am

Re: 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?"
Capitalism
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hegemon13, 27 Jun 2012 @ 9:31am

Re: Re: two party system, FTW!
Read all the previous posts. You are clearly ignorant of the actual definition of capitalism.
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hegemon13, 27 Jun 2012 @ 9:38am

Re: Do you have democracy?
Far too much, actually. What we've lost is what actually made us unique: a republic based on checks and balances and inalienable human rights. "Inalienable." That means, even if 99% of the people want to screw over the other 1%, they can't. Unfortunately, we've lost that check on democracy itself by degrading to a two-party system with an increasingly party-first agenda. Two parties = simple majority democracy. The majority of people will always vote for government handouts when it benefits them, and pure democracies always end in economic collapse.

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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John Fenderson (profile), 27 Jun 2012 @ 11:06am

Re: Re: Re:
So then US copyright law wouldn't apply, so how could it be used to prevent me from reselling the item?
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DandonTRJ (profile), 27 Jun 2012 @ 1:25pm

Re: Re: Re: Re:
Oh no, U.S. copyright *protection* still applies for goods brought in from other countries; we have treaties to that effect with most every nation [mostly through Berne and TRIPS]. Just not the specific first sale exception, which the courts have interpreted as only attaching if the goods originate under U.S. law.
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DandonTRJ (profile), 27 Jun 2012 @ 1:30pm

Re: Re: Re: Re: Re: Re:
I'm actually very much struggling to keep up with Techdirt during my prep, haha. I almost never go into the threads anymore... but I wanted to make an exception for this post. :) Thanks kindly! Just gotta treat it like a horrible, horrible full-time job for the next four weeks... oh, how I wish there was *any* intellectual property tested. Other than boring tort claims (trade secrets violations, etc.) that is.
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josh, 27 Jun 2012 @ 9:30pm

Re: How will I know if I'm a criminal?
not just flea market (yard sale), ebay or craig's list...

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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Anonymous Coward, 28 Jun 2012 @ 1:37am

Re:
No, private porperty rights are for things you have, goverment granted monopoly is controll over other's possesions
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bikey, 1 Jul 2012 @ 4:20am

first sale
Preventing such control by the manufacturers was exactly why the 'exhaustion principle', now an important principle in maintaining free movement of goods in the EU, was developed in German law 100 years ago. The ability of humans to move backwards is a constant source of amazement.
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Anonymous Coward, 1 Jul 2012 @ 1:56pm

Re:
Universal criminalization = everyone's freedom becomes revokable at will.
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obvio, 2 Jul 2012 @ 11:47am

Re: two party system, FTW!
That would be called Fascism
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